The resolution of the notarial service of the DGRN of 19 May 2018, issued in consultation with the Notarial Association of Catalonia regarding SAREB, followed by the resolution of 28 June, in consultation with several real estate companies, facilitates foreclosure for the creditor assignee of a credit, by allowing, subject to certain requirements, the issuing of enforceable notarial copies in his favour. The aforementioned decisions consider that the assignee, as the legitimate holder of the credit, is the only one who can execute and therefore only he alone can request a notarial copy for this purpose, provided that he accredits his credit position to the notary (who - it is added - must not intrinsically but formally assess the public deed of assignment) and, furthermore, verifying that he himself has not previously requested an enforceable copy of the same title deed.

The context of these pronouncements, which make a finalist interpretation of the notarial legislation, is the substantial increase in the litigiousness of credits integrated in portfolios assigned by banks, in the context of the crisis, with the aim of reinforcing the financial system's own resources.

Indeed, the commencement of the enforcement action requires an enabling deed regardless of its registration status, which sometimes makes it possible to defer the registration of the assignment of the claim until a time at the same time as the registration of the adjudication decree (see Resolution of 5 May 2014).

According to notarial law, Article 17 of the Law on Notaries in conjunction with Article 517.2.4.º of Law 1/2000, on Civil Procedure, considers as an enforceable title that copy which the interested party requests to be issued as such - regardless of whether it is the first or successive copy to be issued - adding Article 233 of the Notarial Regulations that, once a copy with enforceable effect has been issued, a new copy with enforceable effect can only be obtained. the same stakeholder with the consent of all the parties or by virtue of a court order with the summons of the person to be harmed. In any event, the copy - and the note of the drawing - of any deed containing an obligation enforceable in court, must state whether or not it is enforceable and, if it is enforceable, that no enforceable copy has been previously issued.

This restriction, which stems from the concept of the title, controlled by means of the notarised notes, is at odds with the phenomenon of the massive transfer of credits, whether securitised or in portfolio, resulting from the current mobilisation of credit.

As is well known, from a procedural perspective - i.e. the proceedings have been initiated - the situation of the assignee has improved following Law 42/2015, reforming the LEC, which allows enforcement to be ordered or be continued with whoever proves to be the successor of the person who appears as the executor in the enforceable title and against whoever proves to be the successor of the person who appears as the executor in the enforceable title (Arts. 17 and 540 LEC). The problem therefore lies outside the procedural succession, when these assignees, who do not form part of the mortgage market, require an enforceable copy, with the issuing of another copy to the assignor being recorded in the protocol matrix, without being able to be considered, therefore, as procedural successors.

This situation, often not foreseen in due diligencesIn fact, it is a serious disadvantage to the legitimate creditor who justifies the ownership of the claim, by dispossessing him, de factoThe judgments allow the enforcement action to be brought against the holder. In response, the judgments make it possible to legitimately initiate the corresponding enforcement proceedings (mortgage or otherwise).

However, it must be borne in mind that it is up to the court of first instance to analyse the circumstances of the assignee's position, such as the possible prescription of the action, as well as the possible concurrence of abusivity in relation to the assigned consumer debtors.

On this point, Advocate-General Wahl, still awaiting the Court's judgment, recently held in Joined Cases C-36/16 and C-94/17 that Directive 93/13/EEC was inapplicable to the assignment of claims, given the consumer-neutral nature of the assignment.

In addition, although the case law of the Supreme Court indicates that the assignment of credits only requires the knowledge of the assigned debtor and not his agreement or express notification (vid. STS of 4 February 2016), article 569-28.2 of Law 3/2017, of Catalonia, which approves the sixth book of the Civil Code, should not be forgotten. This rule requires reliable notification to the debtor, leaving up in the air the criteria for conflictual application of the same not governed by Regulation (EU) 593/2008, Rome I. The negotiation of the future EU regulation on the law applicable to the effects vis-à-vis third parties of the assignment of claims, which, as has already been analysed in this Tribune, prefers the law of the assignor, applies directly to territorial units in the case of multi-legislative States and does not exclude mortgage claims, will have to be closely monitored. It is to be hoped that this circumstance will soon be changed.

In any case, the enforcement requirements of the deed issued by a Spanish notary, with the exception of what has been agreed therein that is not incompatible with notarial law (such as the issuing of a European enforcement deed) will be governed by Spanish law insofar as lex auctor.