According to Article 540 of the Spanish Civil Procedure Law (LEC), amended in 2015, the assignee may request that the foreclosure continue in their favor as the successor of the original enforcing creditor. To do so, the assignee must submit documents proving the assignment. If the court considers them valid, it will proceed to continue the enforcement in favor of the successor.
However, legal doctrine indicates that ordering the foreclosure or issuing an adjudication order does not allow registration of the adjudication in favor of the successor without the mortgage being previously registered in the name of the original creditor. The DGRN Resolution of October 10, 2013 establishes that the Registrar cannot record the adjudication order without prior registration of the mortgage in favor of the plaintiff. Similarly, the DGRN Resolution of July 8, 2013 notes that the certification of encumbrances in judicial foreclosure is merely a procedural step and does not imply a transfer of ownership.
If the succession is not properly documented or the court considers the submitted documents insufficient, the judge will order that the request be communicated to the debtor, granting them a 15-day period to respond. After this period, the court will decide on the succession for enforcement purposes.
The judge must also consider extrajudicial circumstances of the loan assignment to determine whether there has been an unfair delay in subrogation, which could constitute an abuse. Several Provincial Courts, such as Madrid, have addressed this issue. However, the Provincial Courts of Valencia and Barcelona have supported the active legitimization of the assigning bank based on extraordinary legal legitimization.
