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 valid, it will order that enforcement proceed in favour of the successor.
However, legal doctrine consistently holds that the issuance of an enforcement order or even an adjudication order does not allow registration of the adjudication in favour of the successor unless the mortgage is previously registered in the name of the enforcing creditor.
- DGRN Resolution of 10 October 2013:
The Registrar may not record the adjudication order unless the mortgage is first registered in favour of the claimant. - DGRN Resolution of 8 July 2013:
The certificate of charges issued during judicial foreclosure is a procedural step only and does not imply any transfer of ownership or change in the registered holder of the mortgage.
If the Assignment Is Not Adequately Documented
If the alleged succession in enforcement is not properly supported or if the court believes the documents submitted are insufficient, the judge must:
- Give notice to the debtor,
- Allow a 15‑day period for the debtor to submit arguments,
- Decide afterwards whether the succession should be recognised for enforcement purposes.
Judicial Analysis of Potential Abuse or Delay
The judge must also assess the extra‑procedural circumstances surrounding the assignment—particularly to determine whether there has been undue delay (retraso desleal) in requesting subrogation, which could amount to abuse of process.
Several Provincial Courts (Audiencias Provinciales) have addressed this:
- Certain panels of the Madrid Court of Appeal have expressed concerns regarding abusive delays in substituting the enforcing party.
- In contrast, the Valencia and Barcelona Courts of Appeal have supported the active legal standing (legitimación activa) of the original lending bank even after assignment, relying on the doctrine of extraordinary statutory standing (legitimación extraordinaria legal).
Conclusion
- The assignee may request continuation of the foreclosure under Article 540 LEC, but must prove the assignment.
- Even with a valid succession order, the adjudication cannot be registered in favour of the assignee unless the mortgage is first registered in its name.
- The debtor must be heard if the court harbours any doubts regarding the validity or timing of the assignment.
- Spanish courts differ in their approach, but many decisions uphold the standing of the original lender to continue enforcement despite an unregistered assignment.
