The most perfect description of the mortgaged property is required
The title of acquisition and state of charges must be indicated.
Recalls the Resolution of the DGRN of April 2, 2013, [j 1] that the chattel mortgage is reserved for those goods in which its identification is more perfect, considering susceptible to be taxed with chattel mortgage only the goods whose identification was "similar" to that of real estate »in order to guarantee its reipersecutoriedad. Hence, the text of the rule requires the concurrence of rigorous identification requirements according to the different nature of the assets subject to mortgage.
Consequently, the mortgaged property demands its most perfect description; the title of acquisition and state of charges must be indicated; now it is no longer required (modified by Law 41/2007 of December 7) the express manifestation of not being mortgaged, pledged or seized and the price of its acquisition fully paid; It is the mortgagor's fundamental obligation to keep the mortgaged property, making the necessary repairs and replacements, and if the good suffers depreciation (except fortuitous case) the creditor can request judicial intervention for the administration of the assets, which the Judge will grant or not and that, in any case, it can be avoided if the mortgagor pays sufficient security, fixed by the amount decided by the Judge.
Possibilities
At this point, two precisions:
It should be remembered that until Act 41/2007 mortgaged assets could not be mortgaged, which has always been considered a fundamental principle and thus:
The Resolution of the DGRN of April 9, 2002 [j 2] warned that the trick of forming a second mortgage and agreeing that the first and second mortgages have the same rank does not work
The Resolution of the DGRN of February 23, 2005 [j 3] said that the expression can not be constituted movable mortgage on assets already mortgaged should be understood as that the constitution is produced by the registration of the chattel mortgage, given the constitutive nature of the registration of the mortgage, at which time the requirement that the mortgaged property is free of charges must be referred.
But, the aforementioned law 41/2007 modifies art. 2 of the Chattel Mortgage Law, which has remained as follows:
1. The pact will not be effective to not mortgage or pledge the assets already mortgaged or pledged, so it may be constituted movable mortgage and pledge without displacement of possession on assets that were already mortgaged or pledged, although they are with the pact of not to mortgage or pledge. A chattel mortgage or non-possessory pledge may also be established on the same right of mortgage or pledge and on seized property or whose acquisition price is not fully paid. This section will have no retroactive effects.
As another novelty to remember, a fourth paragraph is introduced to art. 8 by virtue of which it is established that loans secured by a chattel mortgage or pledge without displacement may serve as hedges for securities issued in the secondary market.
It is a fundamental obligation of the mortgager to preserve the mortgaged property
Making the necessary repairs and replacements, and if the good suffers depreciation (except fortuitous case) the creditor can request judicial intervention for the administration of the assets, which the Judge will grant or not and which, in any case, can be avoided if the mortgagee Provide sufficient security, set by the amount decided by the Judge (Article 17 and 18).
Extrajudicial sale procedure
Law 15/2015, of July 2, of the Voluntary Jurisdiction? entered into force on July 23, 2015 - has amended the Movable Mortgage and Pledge without Displacement Law (Law 16 December 1954), which regulates the extrajudicial sale procedure in articles 86 and following.
It is essential to be able to use this procedure to comply with all the provisions of the current article 86 of the Movable Mortgage and Pledge without Displacement Law.
This precept says:
In order for the extrajudicial sale procedure to be applicable, it will be necessary to:
1. That in the deed of constitution of the mortgage be designated by the debtor, or by the non-debtor mortgagor, as the case may be, an agent representing him, in his day, in the sale of the mortgage assets. This agent may be the creditor himself.
2. That the price at which the interested parties value the goods is also stated. The type of auction agreed upon may not be different from the one established, as the case may be, for the judicial procedure.
3. That the debtor, or non-debtor mortgager if applicable, establishes an address for requirements and notifications. An electronic address may also be designated, in which case the requirements and notifications will also be made in that form.
In everything not specially regulated in this Law, will be applied additionally to the compulsory extrajudicial sale derived from the movable mortgage and pledge without displacement, the rules on electronic auction contained in the procedural legislation.
