スペインでは、住宅ローンの未払いによる立ち退き問題の根本的解決になる住宅ローン法の改正ではなく、民事訴訟法?
PROPIEDADES
Lo injusto para los desahucios no es la ley hipotecaria, sino la de enjuiciamiento civil
La comisión PP-PSOE ha afinado posturas y el debate está abierto en el Parlamento
Revisar el procedimiento de ejecución hipotecaria es una demanda unánime
El País Madrid 15 NOV 2012 - 18:39 CET
PROPERTIES
The evictions unfair to not mortgage law, but of Civil Procedure
The commission PP-PSOE has refined positions and debate in Parliament is open
Review the foreclosure proceeding is a unanimous demand
The Country Madrid 15 NOV 2012 - 18:39 CET
"The mortgage market is a delicate lace. There are several laws that make it up and have to be treated with great delicacy because it has worked well so far, "says Ignacio Navas Olóriz, the notary who has been a member of the technical committee of the PSOE-PP seeking consensus to tackle the social drama evictions.
But how can you say that a market that works well on the street has left hundreds of thousands of families mortgaged? "The 1946 mortgage law is a good law that has been wrongly described as unfair. What is unfair is the procedure outlined in the Code of Civil Procedure. This, passed in 2000, was designed for those who do not want to pay and acts like a steamroller. "
The outcome of discussions between PP and PSOE says that "could have been a disagreement that obtained good because in the process of discussion have achieved good partial agreements." Explains the mismatch because the concern of the Party for the mortgage "is qualified by an institutional sense of responsibility who fears put at risk the Spanish financial system. But the truth is that the demands of the PSOE-contained in the bill action against forced eviction, indebtedness and insolvency and to be discussed at Parliament-away to kill it, what power. introduces transparency and Europeanized. Anyway, has the virtue of leaving open parliamentary debate, "he says.
The foreclosure process was not designed to need states but who refused to pay
It seems difficult for an end to coincide with changes such as those proposed from the Ombudsman to the European authorities. "Kokott, Advocate General of the European Court of Justice of the European Union, in response to a judge of Barcelona shows us the path to try to correct situations that I would describe as abusive," said the notary.
Olóriz Navas for years been calling just as the European court: that judges are not forced to apply automatically enforcement unable to hear the question. "It is possible that the family situation of default has occurred by the existence of unfair terms to be void but the family is homeless."
Another situation that is reported within and outside Spain are the excessive interest on arrears for fees not paid and can reach 29% interest. Besides high, are charged along the entire foreclosure process can last over a year. "Yesterday was to execute a mortgage of € 700,000, with a penalty interest of 20%. The court decided to postpone it and, hopefully, the next remark will be available within two or three months, which means that the citizen this delay will cost 36,000 euros more each month. "
The foreclosure process is slow and expensive: the default interest may reach 29%
The delinquent is mortgaged, too. to withstand the high legal costs that come from lawyers demanding financial institutions, attorneys, and courts unpaid bills.
And the sureties or guarantors are not notified that it has begun the implementation process, so when they learn and are seeking payment of this debt may have increased fivefold, according to alert the notary.
Complaint also alleged abusive as the early maturity of the mortgage and unilateral. "Just to be sure to pay property tax or shipping community to the financial institution may terminate the mortgage contract and claim the entire amount paid," says Navas.
The bank may ask you to unilaterally pay all outstanding debt paid not just by a receipt of IBI
What to do? One solution is concerned families and societies in the bankruptcy proceeding. "If a merchant has the mortgaged premises and pay this or other debts, is declared bankrupt, and until the agreement is not approved foreclosure is paralyzed, including, default interest. "Do the same with the father and his sureties" defends Navas who recalls that the Sole Additional Provision of regulatory decree amended the Bankruptcy Act established the obligation of the Government to submitting a report to study the extension of these effects families.
The agreement is one that includes how to pay various creditors and debt relief and must be assessed by law. Requirements to meet and has always, at all times, and the notary commission refers exclusively to the residence.
And there is a third alternative procedure to the bankruptcy courts and the proposal is based on the presence of a conciliator, who in the socialist bill would be the notary. This mediation between banks and mortgage holders could be included in an amendment to the Civil Procedure Act and that Spain would cease to be the only country in your environment that lacks a law of insolvency or second chance.
The default may be due to unfair and therefore void but the judge is forced to foreclose without listening to the interested
The protests have spilled courts, halls, streets and borders, in two or three months can add a second sentence of the European Court, after June this year already condemned by Spanish bank interest on arrears and early maturity.
To recap, the necessary responses pass, as the notary, the reforms of the mortgage law, which affects only six articles of the Code of Civil Procedure in all that relates to the enforcement procedures "that are manifestly unjust and even abusive "and the Act regulating the mortgage market. This should establish the principle of prudence in granting mortgages to avoid indebtedness: you can never make a loan that has a mortgage that will support the issuance of mortgage bonds in excess of 80% of the valuation and that the appraisers act independently and take responsibility for their appraisals.
Besides outlined dysfunctions, add others as the existence of two appraisals, which takes into account the entity to assess the well when the loan for example, to a value of 200,000 euros granted a mortgage for 160,000 and another different effect auction which can be set freely, for example, at 40,000 euros to keep it at the time for less.
And if the auction is deserted by the bank wins 60% of the house value. Until the last legal reform was 50% and every law has a loophole: Adria Alemany, attorney Mortgage Affected Platform, explained realtors are pushing themselves to adjudicarsela bank for 50% of value. And while the figures oust Release-family housing by force-will increase as close enforcement procedures.
Live the mortgage
When it comes to mortgages must take into account that "we also speak of mortgage that not only relate to the residence. And it would be potentially dangerous to modify the rule if not addressed carefully. It could be to destroy a market that has working well and holds the notary José Ignacio Navas Olóriz.
The mortgage is an essential mechanism for territorial mobility and wealth. You have to be nimble, efficient and very guarantor but also enforcement procedures have to be balanced.
Such mortgage that includes the Spanish law is similar to that of other modern countries, is effective extarordinariamente. What is missing in Spain is that the enforcement procedure in case of default is fast but also balanced. For Navas, "it is necessary that the rules are applied taking into account the social and incorporating the ethical sense that it is essential to have the court rule legitimacy."
"The law has been subordinated to economics and politics. Y has to recover its peacekeeping role and backbone of society." This is the thesis I have argued in several of his books.
The mortgage is an essential mechanism for territorial mobility and wealth. You have to be nimble, efficient and very guarantor but also enforcement procedures have to be balanced.
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