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ABOGADOS MADRID TENERIFE ZT Abogados
     ABOGADOS MADRID TENERIFEZT Abogados 

CONSTITUTIONAL COURT

CLAIM OF CONSTITUTIONAL REMEDY PROTECTION (RECURSO DE AMPARO) WON BEFORE THE CONSTITUTIONAL COURT

Our client, a mercantile company, acquired a farm land of 20 hectares (50 acres) in 2004. In 2009 he mortgaged the property as a non-debtor mortgagee, which means, guaranteeing another mortgage loan on the property of a private individual (debtor). As a result of the non-payment of the loan instalments, in April 2012 the bank sued the corresponding foreclosure proceeding against the debtor and against the non-debtor mortgagee before the competent court of first instance. During this stage of execution, our client asked the bank repeatedly (more than six times) if the farm land was going to be affected by the foreclosure, to which the bank always responded that there was nothing to be worried about, because with the auction sale of the villa all the credit was covered, with which, there would be no execution on the farm land property. Our client (non-debtor mortgagee) was not notified of the foreclosure lawsuit even though the bank knew several of the client’s addresses. Only one act of communication was attempted at a domicile (practiced by the bank's procurador), and the court ordered notice by edicts and the continuation of the execution by default (both against the debtor and against the non-debtor mortgagor).

In November 2014 the auction (of the villa and the farm) was held without bidders, the bank was awarded both properties (including our client's farm) by means of the Decree of January 2016. Our client miraculously took notice of the adjudication at the beginning of September 2016, so we proceeded to verify this circumstance by requesting a Land Registry in which the ownership was registered into the name of the real estate company of the bank (Buildingcenter), recorded in April 2016. With this information we reported to court in the foreclosure in mid-September 2016. Once we had all the documents of the proceedings, we were able to corroborate that the notification to our client had been defective. Consequently, at the end of September 2016, we asked the annulment of proceedings. At the beginning of December 2016, the court of first instance that was in charge of the foreclosure dismissed the annulment and condemned our client to pay the costs of the nullification proceeding. There was no recourse against that resolution.

At the end of December 2016, we appealed to the Constitutional Court, and our “recurso de amparo” (resource of remedy of protection of constitutional rights) was admitted for processing, a very difficult matter taking into account that in 2016 the Constitutional Court denied 99% of the “amparo” appeals filed (El País 04/04/2017) in most of the cases because the "special constitutional significance" of the “amparo” remedy was not justified. Focused on "convincing" the Constitutional Court of the special constitutional significance (based on the manifest denial of the court in applying the constitutional doctrine, among other things), we obtained not only the admission to process, the caution measure of registration of the “amparo” claim in the Land Registry, but also in November 2017 (11 months after the appeal for amparo was filed) the Constitutional Court granted the “amparo” remedy claim for violation of the right of defence, declaring the annulment of the court order of December 2016 by which the nullity incident was rejected and ordering the retroactivity of the proceedings until the moment in which our client should have been notified of the foreclosure.

The story continues, bearing in mind that, once the court notifies us of the execution we can oppose and object the proceeding with all the guarantees of the mortgage process, taking into account that the execution was dispatched for 234,000 euros, that the appraisal value of the property for auction purposes was of 264,000 euros (in 2009) but in reality the farm currently has a value that exceeds 2 million euros.

 

 

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