ALGUNAS CONSIDERACIONES SOBRE LAS GARANTÍAS DE «EJECUCIÓN PRIVADA» O «EXTRAJUDICIALES» O «AUTOLIQUIDABLES». ENFOQUE DESDE EL DERECHO ARGENTINO.

Abstract

In matters of security subject to private foreclosure by the lender, as a rule the borrower cannot prevent the lender' s «aggression» against the borrower' s private assets; the borrower can, however, file for a «preliminary» trial so that he can be «heard first», and there is no banning him from using this power. That is to say, the law can postpone the initiation of the trial process, but it cannot prohibit the borrower' s constitutional ability (National Constitution, art. 18) to initiate the process before or during private foreclosure on the security. Indeed, when a lender armed with security subject to private foreclosure wishes to foreclose, there is, plain and simple, no defence the borrower can put up, not even in regard to the title, because there is no «trial» against him where he can argue a defence. It is justified, then, for the borrower to be able to file for a trial process (with the necessary breadth of hearing and evidence) before or during (and of course after) foreclosure in order to be heard, even though he will be unable to stop the lender from foreclosing on the security out of court (rule of freedom to file suit, National Constitution, art. 17). In those cases where the trial process is initiated after foreclosure under a selfliquidation procedure, the process may also take the form of action for recovery. Here, after private foreclosure, the borrower can, in addition to putting up those defensive arguments he could not give in the private foreclosure, attempt to sue the lender to recover what the lender has wrongfully received through the self-liquidation of the security. The action for redress can, in addition, be tried jointly with the other process. Where the lender has foreclosed wrongfully or abusively on security subject to private foreclosure, the lender must repair the damages done to the borrower.