CRÍTICA A LA TESIS PROCESALISTA DE LA ADQUISICIÓN DERIVADA DE LA EJECUCIÓN DE UN EMBARGO, DOCTRINA OBSOLETA Y SUPERADA (EN DEFENSA DE LA DOCTRINA JURISPRUDENCIAL CONSAGRADA EN LA STS DE 5 DE MARZO DE 2007).

Abstract

There is a thesis of adjudication stemming from foreclosure that is based on procedural law and denies the winning bidder conclusive title. This thesis is without justification and may be regarded as obsolete and disproved. Under article 594 of the Spanish Civil Procedure Act, title is adjudicated in accordance with substantive legislation (of which mortgage law is a part). A person who acquires property in a foreclosure proceeding, registers his or her ownership of that property and meets the other requirements set in article 34 of the Mortgage Act is protected by conclusive title. This person's property acquisition is upheld and cannot be challenged by unregistered titles whose owners failed to file the appropriate third-party claims of ownership before the winner's title was registered. In direct foreclosure on mortgaged assets, conclusive title for the winning bidder is equally applicable; here no third-party claims of ownership can even be made, because of the nature of the mortgage as a real right, save in exceptional cases where duplicate titles are involved. The existence of exceptional cases involving hidden liens (legal restrictions, legal rights of pre-emption, tacit legal mortgages) is no argument against the application of conclusive title in judicial foreclosures, because exceptional cases occur also in voluntary conveyances for value, and this does not mean conclusive title does not govern in that field. It must be said, however, that all kinds of hidden liens should be eliminated to benefit certainty in trade. Happily, all this was recognised by Spanish Supreme Court doctrine in the Supreme Court's ruling of 5 March 2007. This ruling recognised the winning bidder's standing as a protected third party to the mortgage, and it dropped the distinction between double selling and the selling of third-party property, which used to rule out protection for the third party in this latter case. This means there is protection throughout the entire primary and secondary real-estate and mortgage system.