September 12, 2019

The third mortgagee

In this blog we try to provide the maximum possible financial culture with the least technical language that we are capable of without altering the depth of the concepts. We have explained several types of signatories related to the mortgage loan, namely:

The owner of the mortgage loan, owner and non-owner of the mortgaged property

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I recommend the mortgage loan guide edited by Good Finance that I have directed; In this link you can see all the free guides edited so far related to personal finance.

The guarantor

The non-debtor mortgagee.

Legal nature of the mortgage for foreign debt

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There is a concept, that of the third mortgagee that we had not mentioned yet and that analyzes in detail the professor of civil law at the University of Seville, June Codilla, in this pdf document. The writing is interesting when it comes to the legal nature of the mortgage for foreign debt. In reality, the third mortgagee is the non-debtor mortgagee and the legal discussion is based on the study of the mortgage given by a third party; This figure could be considered a real guarantor , different from the guarantor or guarantor who responds with all his present and future heritage, although there is no consensus in the legal analogy for doctrine and jurisprudence seems to rule it out.

The linked document discusses whether the non-debtor mortgagee who has voluntarily paid the amount of the mortgage of his asset or has done so on having executed the second guarantee, can avail himself of the right of subrogation and try to collect later from the holder of the mortgage. In summary, it is about establishing whether the non-debtor third-party mortgagee or mortgagee has the nature of a “real guarantor” and may or may not attempt to go against the principal debtor once the debt has been unpaid and the bank has executed the guarantee.

Third acquirer of the mortgaged property will be subrogated

Third acquirer of the mortgaged property will be subrogated

In case of full payment (avoiding the execution or through the execution itself), that non-debtor mortgagee or third acquirer of the mortgaged property will be subrogated, ex arts. 1,210, third section, and 1,212 CC, in all the rights and privileges that the creditor had before the debtor. Likewise, it may be directed against other mortgagees or third-party holders, but not for the total amount of the debt, but only proportionally (cf. arts. 1,145, second paragraph, and 1844 CC, in respect of which its analogical application is made.

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