Opposition to mortgage foreclosure is a legal mechanism that allows the debtor to challenge the enforcement of their mortgage when there are justified reasons. According to Article 695 of the Spanish Civil Procedure Law (LEC), the grounds for opposition are limited to four main categories:
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Extinction of the guarantee or secured obligation: A registry certificate must be submitted proving the cancellation of the mortgage or pledge without transfer.
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Error in determining the amount owed: If the secured debt corresponds to the balance of an account between the enforcing party and the debtor, the debtor may present their bank passbook to demonstrate discrepancies.
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Existence of a prior guarantee: In the case of movable assets pledged or mortgaged without transfer, if these are subject to another prior mortgage, pledge, or seizure, this circumstance can be invoked.
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Abusive contractual clause: If the foreclosure is based on an abusive clause, or if such a clause determines the amount owed, the debtor may challenge it.
Opposition Procedure
Once the opposition is filed, the Court Clerk (Letrado de la Administración de Justicia) suspends the foreclosure and summons the parties to appear before the court. During this hearing:
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The arguments of both parties are heard.
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Supporting documents are admitted.
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An order is issued, which may dismiss the foreclosure or determine the correct amount to be paid.
If the court upholds the opposition, the foreclosure is dismissed. If the opposition is based on an abusive clause, the judge may order the clause not to be applied or may dismiss the foreclosure.
Appeal
Since the reform of Law 1/2013 and Royal Decree-Law 11/2014, the debtor may appeal the order that rejects their opposition if it is based on an abusive clause. This modification responds to the Judgment of the Court of Justice of the European Union (CJEU) of July 17, 2014, which considered it contrary to EU law that the debtor could not appeal while the creditor could.
