The extrajudicial sale of a mortgaged property. Substantive issues. Special reference to habitual residence

Abstract

The extrajudicial sale of a mortgaged property has a different nature from that of a jurisdictional enforcement procedure insofar as it involves the deployment of a private agreement between creditor and debtor that facilitates the exercise of the ius vendedi or ius distrahendi, structural power of the mortgage right, through a voluntary jurisdiction procedure controlled by the Notary. This public official must necessarily intervene in the procedure to ensure the interests of the creditor, the debtor and the mortgagor, as well as third-party holders of rights subsequent to the mortgage that is executed. Also due to the prohibition requirements of the commission agreement contained in the Civil Code. In order to open an extrajudicial sale procedure, it is necessary that the guaranteed obligation consists of a pecuniary obligation and that the amount thereof is determined at the beginning of the extrajudicial sale; it is also necessary that the extrajudicial sale clause with its formal and content requirements have been recorded in the mortgage deed and in the Property Registry; that the early expiration of the obligation has been agreed and that the debt is settled in accordance with the stipulations agreed in the mortgage constitution deed (in the case of progressive amortizations, variable interest and default interest).