FORECLOSING PROCEEDING - NULLIFICATION BY CONSTITUTIONAL COURT

One of the most important news of this week says that the Constitutional Court (TC) nullified a foreclosing proceeding against one domestic violence victim who could not be notified. Prior to analyse the case it is necessary to point out the attitude of the defendant to take the case up to the very end, even in these unfavorable circumstances. In a foreclosing proceeding claim it is not recomendable to give up and it is necessary to ask for legal advice and never think that everything is lost. In the majority of the cases I defended, to be referred later, I have obtained favourable resolutions. It does not mean that the mortgage can be cancelled (although it could be in one of the cases I am dealing with and still pending) but to nullify many of the mortgage clauses (abusive clauses) or to nullify the proceeding (totally or partially).

Firstly, we have to bear in mind that the Mortage Deeds have to indicate an domicile for notifications (normally the mortgaged property). In case of default the foreclosing proceeding starts and the claim must be notified to the defendant in the address stated (the mortgaged property) so he can plea to Court and object. If the defendant is not found in the place and the notification has properly intended, the execution continues up to the final auction. We do not know all the details of the case, but we may know that the judge of the foreclosing proceeding order the notification in place and the defendant was not there and the proceeding continued. When, later, the defendant took notice of the execution she attended to Court saying that she was absent because of a personal situation of domestic violence and asking for nullification of proceeding. The judge denied such petition considering that the notice was made not in breach of law. The defendant, then, took her case to the TC (defenceless due to the lack of personal notification). The outcome is known.

It is very important to point out the corageous attitude of the defendant as she did not stop, in spite of having all against (and within a sad domestic violence problem). First, initially the attempt of notification was rightly made in her address. Second, the Court understood that there was no defencelessness (in other words that she should have been located in her address).

Fortunately for this lady, TC ruled in her favour saying that her personal circumstances should have been considered by the judge. Likewise, that she was not “efficiently” protected because, although the judged did not know at the beginning the domestic situation, he could take notice of that later when she attended to Court. This was, TC nullify the resolution of the judge ordering to back up the proceeding until the day before the requirement.

Hence, nobody should give up when facing a foreclosing proceeding. I had the opportunity to nullify many legal proceeding due to a procedural error, existence of abusive clauses, lack of legitimation of the bank (abusive clauses and lack of legitimation of bank deserve another article). In many cases was necessary to appeal to the High Court as the judge initially ruled in favor of the bank. In other cases the auction was suspended. There was a case in which the judge had suspended the auction and the day before (due to the bank objection) he changed his mind. Fortunately for the client we found a position with the bank to suspend it. We have to also add the cases of opposition due to existence of abusive clauses.

There are many possibilities. We could think that, sooner or later, we have to pay. But there is a difference between updating the debt (without paying the whole loan) or reduce the interests (in one case the nullification of abusive clause reduce the debt in 200,000 euro) and another one is to loose the property because we cannot pay the whole loan. Finally, we do not have to give up even when we think that all is lost and get proffessional advice. Sometimes we have to appeal before higher Courts.

Spanish