Please help assetts to be seized

We had 2 places in spain and fell behind with one. The one we fell behind on was supposed to help us clear the other mortage quicker but then the property crisis hit as well.

The other is completely up to date with very little mortgage.

But now they have auctioned the one in arrears and there is 72000 o/s due to the crash in prices  -  the banks solicitors have asked to seize the assets (namely the other property) which we have nearly paid for.

I am distraught especially as the only communication we have received and that had to be signed for was at this stage. We didn’t even know it had been auctioned off already.. the bank had our uk and email address

The case to seize was heard in June according to the letter from the court we now have That was signed for at the spanish house they want to seize on the 14th Aug by a neighbour who then posted it to us when they came back to the UK last week and and it looks like we only had a window of 10 days to appeal something we knew nothing about -  until now

I suppose its too late to save the house.

I am really not sure how  long will they take to change the locks on the existing house or do we have any time to raise the necessary amount to clear the debt and remove personal possessions? 

Thank you

Oh dear. I'm really sorry to hear your story. I hope someone can help you. 

Hello Mirador

Unfortunately you are just another victim of the 2008 world recession and Spanish property crash. Your situation in Spain would be the same in most countries. If you have debts all your assets are at risk from your creditors, you just cannot run away and expect the banks shareholders to absorb your debts whilst you have the ability to pay one way or another. I do not wish to be rude but you have been naive in your situation, many others in a similar situation ring fenced their assets (transferred them, put them in another name or sold them and did a runner with the money) you have left that option too late.

Some of your OP I don’t fully understand or you have not made clear.

Is this property your main residence or a holiday home?

How are you able to raise 72,000 € or £s.

Is there enough guaranteed equity in the property to cover your debts?

What will you do if they come after your UK assets as well?

Can’t Pay We’ll Take It Away.

A few basic questions arise here....

Does a Bank have a legal obligation to ensure that a mortgagee is kept fully informed of any intent to auction a property via their nominated home address ( in this case the UK address)?

Also has the Supreme Court established any doctrine to safeguard mortgagees rights to be kept fully forewarned of the options available to meet outstanding mortgage debt of this nature and do timelimits apply to this scenario?  

Where a Bank has not followed predetermined rules of communication in this regard, would this be considered an abuse of rights?

Perhaps Maria de Castro could urgently advise?

To auction the property the bank will have obtained a legal court order. The court and the bank can only use address’s they have been provided.

The OP is in complete default and admits it.

When the bank pursues the OP assets through the court, the court will decide if predetermined rules have been complied with, that is there job.

If the OP had notified the Bank of their home address in the UK, as appears the case here, and this was not used by the Bank , would this be considered of sufficient legal significance to be deemed an illegality on the part of the Bank to ensure their communications had reached the mortgagee who resided outside of Spain? 

Are the rights of mortgagees in Spain different to the rights afforded other countries?

In many countries a bank has certain obligations to try to resolve a loan in default situation by offering counseling and agreeing short term measure to assist customers in difficulties. If all this fails the bank goes to court to obtain the right to force a sale.

In Spain therefore is there no similar facility to provide flexibility to adapt mortgage arrangements ( extension to terms etc), as a means of resolving arrears?

I am no longer referring to the OP, I do not wish to insult them.

It is the courts duty to ensure all the correct rules and procedures have been followed and adhered to before applying any rulings or judgements.

If someone abandons a property, leaves the country, never pays a penny in mortgage repayments in 10 years, then says the dog ate the banks letters, then it must be all the banks fault and the banks shareholders must stand the cost of the debt and the loss.

So perhaps the question remains, do Banks in Spain have a legal obligation to prove that their important communications of this nature relating to mortgage arrears/repossession/auction etc are effectively administered for non residents through the international postal service, i.e. registered and required to be signed for?

But also the question remains do Banks in Spain have legal obligations to resolve a loan in default and offer counselling to seek out short term measures to assist customers in difficulty, or is this not part of the legal remit in Spain?

ROYAL DECREE LAW 6/2012, OF MARCH 9, 2012 ON URGENT MEASURES TO PROTECT LOW INCOME MORTGAGE DEBTORS

http://www.garrigues.com/sites/default/files/docs/Updates_Corporate_11_2012_1.pdf

The decree will not include holiday homes and investment properties.

Thanks for the detail re protection of low income mortgage debtors.

So in light of this, I wonder if Maria can advise the original poster if there is any protection given the circumstance that they did not appear to receive forewarning of auction or court case.... is there any legal way that this can be resolved through ongoing negotiation with the Bank?

Answering questions below: 

Does a Bank have a legal obligation to ensure that a mortgagee is kept fully informed of any intent to auction a property via their nominated home address ( in this case the UK address)? There is an address which is included on the deeds as address for notifications and initially that is what the bank needs to use BUT if you can prove that the bank knew of other address and did not use it, against your defense rights, you can challenge the validity of the process.

Also has the Supreme Court established any doctrine to safeguard mortgagees rights to be kept fully forewarned of the options available to meet outstanding mortgage debt of this nature and do timelimits apply to this scenario?  It has been the Constitutional Court in Spain which has established that if the mortgagor, had the prevention of communicating to the Bank the change of address , or  has received communications at another address, or can prove that the Bank knew the real address, or the Court did not exhaust the means of search, he can  study the possibility of starting a procedure to void the  foreclosure proceedings, for procedural infringement of the communication acts that have caused defenselessness.

Where a Bank has not followed predetermined rules of communication in this regard, would this be considered an abuse of rights? Of course, it would.

An final question:

But also the question remains do Banks in Spain have legal obligations to resolve a loan in default and offer counselling to seek out short term measures to assist customers in difficulty, or is this not part of the legal remit in Spain? After the initial default, Bank will contact you and will warn on inminent enforcement. At that time, negotiations can happen, although there is no much to expect from the Bank. My advise is to look into possibe abusive clauses ( anticipated maturity, floor clause, IRPH, expenses....) to empower your position before the bank. A new Mortgage Act is about to be passed by which if you are in the first half of the loan, the execution process can not be started until default of 9 monthly installments or 2% of the capital;  if you have already paid half of your mortgage, the term will be even longer: 12 unpaid installments or 4% of the capital.

Then, we are waiting for the European Court to answer a preliminary hearing submitted by the Spanish  Supreme Court by Order dated 8.02.2017 .  Supreme Court is asking the European Court to rule  whether the nullity of the early maturity clause prevents the Spanish national courts from continuing with the mortgage procedure (dismiss it) or not.

So, in short and essence: there might be much to oppose and negotiate with the Bank. 

As a final note: the execution of the bank ends (not being able to extend to assets beyond the mortgaged property) if the value of the debt was less than 50% of the auction value of the asset; value that is a very high amount because it is composed of principal, interests and costs.

Good technique and opposition can prevail over the astuteness of banks

‘’is there any legal way that this can be resolved through ongoing negotiation with the Bank?’’

Negotiation will not make the mortgage debt disappear into thin air, and neither will the dog ate the letter, the stamp was upside down, it was the wrong colour ink, or any other loopholes some anorak do-gooder can try and invent.  

As in all cases where a debt exists, there is a creditor (a person or company to whom money is owing to) in this case the bank shareholders, ordinary investors or pension funds. A debtor (a person, country, or organization that owes money) in this case the OP who borrowed the money to buy a holiday home and agreed to pay it back.

If the borrower is skint (potless) has no assets anywhere in the world the bank shareholders have no choice but to absorb the debt and loose the money they lent. But if the borrower has assets the bank shareholders are rightly entitled to those assets in order to recoup their money.

It is not a case of throwing the keys in on a holiday property you no longer want and all the debt disappears because ''others'' will stand the loss whilst you enjoy the benefit of your other assets as if nothing had ever occurred.

 And ‘’others’’ can include members on here who are mortgage payers and have these debts absorbed within their own mortgage costs.

There is much to do when an owner gets into payment default or difficulties. It is for the interest of the bank too, to settle a debt rather than starting a foreclosure procedure which is very much under revision by European instances these days. It is a win-win exercise and solution

I am neither anti bank or pro bank. The 2008 financial crash was unprecedented to this generation and many innocent victims suffered with losing their jobs and income leaving them unable to pay the mortgage on their main and only home. These people have all my sympathy and deserve all the help and assistance they can get. However I have no sympathy with those who borrowed money they should not have to buy a second home (holiday home) to better their lifestyle and also make a few quid on the side renting it out, and when the market turned bad, throw the keys in, did a runner and told the bank to shove the debt where the sun don’t shine.

There seems to always be the attitude by some that debts evaporate, institutions like the banks and governments have mystery money that comes from nowhere. There is no imaginary win-win result; the fact is someone always pays in the end.

European Union is being quite proactive and efficient at protecting the weaker part, the consumer. National Legislations are also advancing.

Likewise the bailout of Banks has been at the tax payers expense....bailouts from unregulated debt, continuing non compliance with mission statements, ongoing abusive clauses, non adherence with laws intended to protect, etc. This is a complex mix that needs to be assessed not from a one dimensional perspective but from a far wider perspective if a balanced appreciation is ever to be gained.

Many lessons to be learned from all of this complex mix, but as things currently stand there is still much to do to attain adequate regulation and accountability, to regain a better civilised balance if trust in the banking and real estate  industry is to be restored. Re-education and appreciation of the risks associated with debt lies at the heart of this. But not just from a one sided perspective.

At the end of the day we all depend upon reaching a civilised solution which requires what Maria has identified as advancing National Legislations to protect those most vulnerable, but also hopefully to build upon regulatory structures that minimise risk and abusive malpractice.

Sometimes ads you do make a bit of sense despite all the Maria this that and the other. The higher hierarchy at the banks have certainly not done their shareholders any favours. They made reckless irresponsible loans in order to be paid huge bonus’s and when the job went bad also did a runner and amazingly got paid large sums to go. Some of their activities were criminal, but as usual the old boys’ network kicked in and a blind eye was turned. They are now on their yachts supping gin & tonic having a good laugh whilst the unemployed homeless eat out of the bins.

What went on was blatant to see by everyone including Stevie Wonder but no one did anything or gave a toss. Legislate for that.  

You can introduce as much law and regulations that you like but corruption and the old boys’ network will live forever.