Possibilities of defense in the event of foreclosure

As is well known, in case of non-payment of amounts due under a mortgage loan, the financial institution creditor can go to court proceedings. However, the debtor may attempt to negotiate with the lender to obtain a refinancing deal. Unfortunately, most executions goes on in practice. In response, the legal weapons with which has an affected not usually abort the process, although some do allow you to paralyze and buy some time.

The art. 695 LEC contemplates the causes of opposition to foreclosure, and these are basically four:

- Suspension of the warranty or the secured obligation
- Error in the determination of the amount due .
- In case of execution of personal property mortgaged or who have been made non-possessory pledge, attachment of such property to another pledge, chattel mortgage or real estate registry or attachment lien prior to that motivates the procedure , which will be accredited by the corresponding registration certificate.
- The unfairness of a contractual term that constitutes the basis for implementation or had determined the amount due.

Although the first one and the third are not as common, you can attempt a defense based on the second and fourth leading cause of opposition. Therefore, and considering them to be very little chance of the debtor, on May 15, 2013 came into force "AntidesahucioS"Act. The new rule does not incorporate universal and retroactive dation in payment which is claimed in the Legislative Initiative (ILP ), but included as a measure 'star' two-year suspension of evictions in the affected fulfill conditions of special vulnerability. Among them, it is noted that the income of the members of the household may not exceed three times the amount of the Public Income Indicator (IPREM ), the equivalent of 19,000 euros per year.

Moreover, the Mortgage Reform Act also includes take off 35% for debtors settle their dues within five years and 20 % if they do in 10 years.

Another novelty is that the mortgages for primary residences the default interest that may require credit institutions to three times the legal interest rate will be limited . This appreciation of predatory interests can be appreciated on its own initiative, the judge may declare out of order execution or continuation without application of those unfair terms.

Also, certain improvements are made in the auction process, establishing the appraised value for purposes of the same shall not be less than 75 % of the appraised value that was used to grant the loan. Previously there was no limit to the type of auction. Moreover, if the auction ended without any bidders, the award percentages well increase, namely 60 % up from 70% in the case of alleged residence.

In conclusion, although this law was intended to end or mitigate the social drama of the mortgages , the fact is that not solve the problem . The only improvement is the two-year moratorium that one solution is a stoppage of foreclosure proceedings .