HIPOTECA UNILATERAL E INSCRIPCIÓN DE LA DECLARACIÓN DE CONCURSO DE ACREEDORES.

Abstract

The recently issued resolution of the Spanish Directorate-General of Registries and Notarial Affairs of 2 November 2011 is food for a study of the problems posed when a deed of unilateral mortgage is executed before registration of the bankrupt's bankruptcy declaration but is submitted for registration itself afterward. The legal nature of the limitations imposed on the bankrupt (limitations affecting the bankrupt's ability to act or legal standing to act) are examined. It is subsequently concluded that the legal nature of the limitations would not affect the solution at issue, unless they were regarded as legal prohibitions against disposal and administration. The interpretation given is that registration of the limitations under article 145 of the Spanish Mortgage Regulation, in connection with section 17 of the Mortgage Act, closes the possibility of registration for any title pre- or post-dating the caveat noting that the courts have barred disposal of the asset (save where authorisation to register other titles has been given). The author considers that this thesis could be upheld at least in the case of deeds of unilateral mortgage executed in the two years prior to the bankruptcy declaration (suspicious period), in view of the connection linking article 145 of the Mortgage Regulation and section 17 of the Mortgage Act with sections 24.4 and 71 of the Bankruptcy Act (historical and teleological interpretation of the law). This would avoid the need to rescind acts injurious to the bankrupt's assets (unilateral mortgage used before the business reaches the crisis point), because the receivers and the judge of the bankruptcy proceedings would not authorise the registration of unilateral mortgages made to the detriment of the assets at issue in the bankruptcy, and because of the elimination of the preregistration check for titles pre-dating the bankruptcy caveat, which sets the date to which the effects of bankruptcy are retroactive. There are further considerations.