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 will also be partial.
Effects of the Assignment on the Debtor
The debtor’s position must not be altered:
- The debt does not increase or decrease,
- The guarantee (mortgage) remains unchanged,
unless the debtor participates in the assignment and expressly consents to any modification.
The debtor’s obligations toward either the assignor or the assignee depend on whether the debtor has been notified of the assignment.
1. Without Notice to the Debtor
If the debtor has not been notified, payment made to the original creditor validly discharges the debtor.
If the debtor pays the assignor and the assignment is registered before cancellation of the mortgage, the DGRN Resolution of 19 February 2018 establishes that Article 144 of the Mortgage Law does not affect a subsequent assignee when the debtor was not notified.
Thus, the extinguished credit cannot be revived for the benefit of the assignee, since the debtor paid validly.
2. With Notice to the Debtor
Once the debtor has been notified, payment must be made to the assignee.
The securitisation of mortgage loans does not alter the relationship between the issuing bank and the mortgage debtor.
The original lending bank maintains:
- Active standing (legitimación activa) to claim the debt and initiate mortgage foreclosure proceedings, even if the loan has been securitised.
- Passive standing (legitimación pasiva) in claims made by the debtor.
Effects of the Assignment on Third Parties
Effects against third parties require the registration of the assignment.
1. Acquirers in Cases of Double Assignment
In the event of double assignment, the priority is determined by registration, protecting the party who registers first, in accordance with Article 34 of the Spanish Mortgage Law.
2. Third Parties Acquiring Rights
These include:
- Creditors who rely on the Registry to improve their rank.
- Creditors who subrogate themselves into the credit and mortgage rights.
- Bona fide third parties who trust the content of the Land Registry.
3. Creditors of the Assignor
Creditors who enforce an attachment on the assignor’s credit, unaware of the assignment and without it being registered, may be protected if the assignment is not recorded in the Registry.
Parties Not Considered Third Parties
The following are not considered third parties for the purposes of the assignment:
- The non‑debtor mortgagor
- The third‑party possessor (tercer poseedor)
- Anyone with rights registered after the mortgage
