Breves reflexiones sobre la posibilidad de realizar por subasta judicial un crédito hipotecario

Abstract

In this paper we will address the analysis of the different legal arguments and procedural bases which support the thesis that the mortgage credit, understood as a complex notion that unites a personal right –such as a credit –and a property right –such as a mortgage– and that has been seized in an enforcement proceeding, and recorded in the “Property Registry”, can be sold at a court auction. Also, we shall analyse the importance of the recent declaration of unconstitutionality and nullity of the article 454 bis 1 first paragraph of the LEC (Civil Procedure Act) for infringing the right to a complete and effective judicial protection referred to in article 24.1. of the CE (Spanish Constitution), declared by the Tribunal Constitutional (Constitutional Court), meeting in plenary, by its Ruling number 15/2020 of 28 January 2020, related to the impossibility of appealing against the decree resolving the so-called “reposición” (a sort of appeal for reconsideration or revocation); which created an area not subject to judicial control and which could involve a procedural obstacle to the continuation of the enforcement procedure.