CIVIL PREJUDICIAL QUESTION
A civil prejudicial question is a mechanism regulated in Article 43 of the Spanish Civil Procedure Act (LEC) that allows the court to determine whether a proceeding should be suspended until an antecedent issue within the same civil jurisdiction is resolved. Although the statute refers to “civil prejudiciality,” it is, in reality, an incidental matter […]
FLOOR CLAUSES
Floor clauses are provisions in mortgage loan agreements that establish a minimum interest rate, preventing the borrower from fully benefiting from decreases in the benchmark index. Although not illegal per se, they have been subject to extensive review by the Spanish Supreme Court and the Court of Justice of the European Union (CJEU) due to […]
LEGAL COSTS WHEN ABUSIVE CLAUSES ARE PRESENT
The right to effective judicial protection is violated when the court fails to award costs despite having declared the contractual clauses abusive. The First Chamber of the Spanish Constitutional Court issued Judgment 91/2023, of 11 September 2023 (Constitutional Appeal No. 5905‑2020, published in the BOE on 12 October 2023), in which it held that the […]
MORTGAGE FORECLOSURE INITIATED BY A SECURITISATION FUND WITHOUT REGISTRATION IN THE LAND REGISTRY
Case law and legal doctrine agree that registration of the assignment is an essential procedural requirement for the assignee‑creditor to exercise the mortgage enforcement action. To benefit from the rights of the registered mortgage holder, registration is mandatory; merely producing the deed of assignment is insufficient. In the realm of real rights (derechos reales), contractual […]
MORTGAGE FORECLOSURE INITIATED BY THE ORIGINAL LENDER, EVEN THOUGH THE CREDIT HAS BEEN ASSIGNED BUT THE ASSIGNMENT HAS NOT BEEN REGISTERED IN THE LAND REGISTRY
Under Article 540 of the Spanish Civil Procedure Act (LEC), as amended in 2015, the assignee of a credit may request that the foreclosure proceedings continue in its favour as the successor of the original enforcing party. To do so, the assignee must submit documentary evidence proving the assignment. If the court considers the documentation […]
ASSIGNMENT OF THE AUCTION AWARD WHEN THE ENFORCEMENT IS CONDUCTED BY THE ASSIGNEE AND THE DEBTOR IS UNAWARE OF THE CREDIT ASSIGNMENT
When the enforcement proceedings are conducted by the entity that acquired (assignee of) the loan and the debtor is unaware of the credit assignment, an assignment of the auction award (cesión del remate) may take place. If the assignment occurs during the enforcement process (and therefore Article 1535 of the Civil Code does not apply), […]
EARLY MATURITY CLAUSE, CONSUMER STATUS AND SUPREME COURT DOCTRINE
The concept of consumer is crucial when analysing the validity and enforceability of early maturity (vencimiento anticipado) clauses. Spanish Supreme Court Judgment STS 463/2019, of 11 September 2019, reviews and consolidates the doctrine on early maturity in contracts involving consumers. This ruling follows the criteria established by the Court of Justice of the European Union […]
ASSIGNMENT OF MORTGAGE LOANS: LEGAL CONSEQUENCES
Between the Assignor and the Assignee The assignment transfers the credit and all its accessory rights, pursuant to Article 1258 of the Spanish Civil Code, including guarantees such as surety, mortgage, pledge, or privilege, unless these are expressly excluded in the assignment agreement. If the assignment is partial, the extinguishment of the assignor’s ownership rights […]
HOLOGRAPHIC WILL
A single woman, with no children and no surviving parents, instructed her bank by means of a typed, dated, and signed letter that, upon her death, the money deposited in that bank should be transferred to her niece. After her passing, doubts arise as to the validity of this instruction. Answer: For this instruction to […]
WILL APPOINTING A CAREGIVER AS HEIR
A man dies widowed, with no descendants or ascendants, and leaves a will naming as his sole and universal heir whoever personally cared for him during the last years of his life. He appoints a friend as executor, granting him the power to determine who that person was. The testator’s siblings question the validity of […]
