BY ANA FERNÁNDEZ - TRESGUERRES

Without prejudice to the possible processing of a law on voluntary jurisdiction, which is becoming increasingly slimmer, the Draft Law on administrative reform measures in the sphere of the Administration of Justice and the Civil Register regulates electronic auctions derived from enforcement procedures. Law 1/2003, of 14 May, had already reformed Art. 129 of the Mortgage Act (LH), relating to the notarial sale, at the same time as it resolved possible problems of legality arising from its possible conception as an extrajudicial enforcement procedure. It was understood at the time that enforcement was reserved to the judge on the basis of Article 117 EC. Following the creation of the Judicial Office by Law 13/2009 of 3 November and the increase in the functions attributed to the Court Clerks, who in the new regulation will have full control of enforcement, this activity is de-judicialised, in line, moreover, with the legislation of our environment. Art. 129 LH, which is now being amended, introduced a provision according to which "d) The sale shall be carried out by means of a single auction, of an electronic nature, which shall take place on the auction portal provided for this purpose by the State Agency of the Official State Gazette". This wording created a vacuum, as today, more than a year later, there is no procedure. This creates difficulties not only with notarial acts already initiated, but also with subsequent ones, which for this reason are insignificant. Doubts that gave rise to the resolution of the DGRN of 25 February 2014, which established that those initiated after the entry into force of Law 1/2013, would have a single auction but without non-existent electronic means. The explanatory memorandum of the Draft Law justifies the extension of the electronic form to judicial auctions derived from enforcement proceedings, as it does not seem logical that it should be reserved only for notarial auctions. It stresses its design in accordance with the principles of publicity, security and availability. This is indisputable. It is unquestionable, however, that enforceable or non-enforceable notarial auctions are left in a real legal limbo in the application of the future law. In fact, Law 1/2013 envisages a regulatory development which requires the amendment of Art. 236 of the Mortgage Regulation and which has so far failed, after two attempts. The publication of the new law will require, even if this is not done, the integration of its content into auctions deriving from forced sales before a notary and, following this integration, the regulatory development of the text. The essential steps in the procedure must be laid down in a law, even if this is not stated. However, as is always the case when technological development is required, the computer application will rule, so the tool will have to be analysed.
The scope of application of the future regulation with regard to notarial auctions is unclear. This is an aspect that will have to be improved in the parliamentary procedure. The electronic procedure should be applicable to all notarial auctions. Article 220 of the notarial regulations provided for auction records, but this was annulled by the Supreme Court ruling of 20 May 2008. In any case, even without a regulated procedure, they do exist and it is an act of legal control and presence not necessarily derived from an extrajudicial execution procedure.

Focusing on notarial sales due to non-performance or non-payment, section 1872 of the Civil Code, it must be assumed that they are a consequence of the effectiveness of the debtor's ius distrahendi in a wide range of cases, each of which has its own singularity. Thus, from the subjective point of view, the type of contract is of interest, given its immediate repercussion on the effectiveness and ineffectiveness of the contract and its accessory obligations: B 2 C or B 2 B contracting. The draft says nothing about this relevant circumstance - since it is essentially a procedural draft. It covers, objectively, movable or immovable property, and except, curiously, in the reference to the notarial procedure, with serious errors, nothing is said about the area of contracting with consumers.
A different matter is the application of the projected regulation to pledges, essentially located in the B 2 B contract. It is its omission to a gap that should be filled during the processing of the law, in order to apply the procedure now regulated to the extrajudicial enforcement of pledges as well as to mortgage rights in rem. The enforcement of pledges deserves some comment. Briefly: with respect to its object, the economic situation has increased its arrangement on all types of credits and securities; subjectively, it must be understood that it is not usual in contracting with consumers; with respect to its form and requirements, there are serious regulatory shortcomings that lead to integrating, normally with judicial intervention, the deed of constitution of the guarantee with a set of conditions of execution in the event of shortcomings in the procedure. In any event, it is unquestionably necessary for the deed to contain at least the agreement or authorisation to sell in the event of non-payment and the fixing of an address for service. The new rule refers to the enforcement on commercial establishments, determining, with an alteration of the special law, that the premises open to the public will be considered to be an address for service.

Among the notable aspects of the new regulation, of which there are many, I would like to refer to two: the regulation of notifications and the purging of charges. Of the first, we can highlight the fact that the registration of the address for the purpose of notifications is strengthened, regulating, in the new Art. 683 LEC, the registration procedure for the change of address. With the exception of personal notification by a notary, which will be valid, in any place, both the dispatch of execution and the extrajudicial practice of summons will be made at the address registered in the register to any of the persons indicated in the projected Art. 686. In relation to the purging of charges, it should only be pointed out that the surprising art. 673, provides for the possibility that the possible financing and the financing entity of the bidder in the auction, be recorded in the testimony of the Secretary which is the title of the registration for the purposes of not being cancelled in the purging. Does it replace the necessary formalisation of a policy or mortgage deed on another property which must guarantee the financing? The cancellation of encumbrances after the notarial sale remains completely silent. The text needs to be improved in many more respects than those outlined here.