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), or if the assignment is prior but has not been registered in favour of the assignee, could the assignor request that the assignment of the auction award be made in favour of the securitisation fund, considering that Law 5/2015, Article 15 has removed the issue of registering title and other real rights in the name of securitisation funds?
According to Article 647.3 of the Civil Procedure Act (LEC), only the judgment creditor (enforcing party) or subsequent creditors may bid while reserving the right to assign the award to a third party. The assignment is made by appearance before the Court Clerk (Letrado de la Administración de Justicia) in charge of enforcement, with the presence of the assignee, who must accept the assignment, and this must occur before or simultaneously with the payment or deposit of the auction price, which must be documented. The enforcing party may also exercise this power if it requests adjudication of the auctioned asset.
In our view, such a manoeuvre would constitute a fraud of law, as the parties would be attempting to circumvent the application of Article 1535 of the Civil Code and Article 540 of the LEC, as well as the defendant’s right to be heard on the assignment. Only the assignee should appear, not the assignor, which could infringe Article 24 of the Spanish Constitution, by depriving the defendant of the opportunity to raise any arguments deemed pertinent regarding the procedural assignment (e.g., impossibility of assigning the credit, etc.).
