ASPECTOS SOCIOLÓGICOS, JURÍDICOS Y REGISTRALES DEL REAL DECRETO-LEY 6/2012, DE MEDIDAS URGENTES DE PROTECCIÓN DE DEUDORES HIPOTECARIOS SIN RECURSOS.

Abstract

The system established by Royal Legislative Decree 6/2012 does a reasonably good job of harmonizing all the interests involved, and the requirements it sets regarding the borrower's assets (The borrower must have no assets) and homeowner's loans (The loan must be for the borrower's only home) are good. However, the system is overly restrictive. It demands that all the relatives in the family unit must be entirely without earned income, and it sets restrictive ceilings on the value of the mortgaged home. These limitations deprive the system of a great deal of efficacy and therefore must be eliminated. It would also be a good idea to add terms referring to cases of rental after surrender in lieu of payment, to lengthen the span of the mandatory lease and establish parallel prospective and retrospective rights of first refusal. Also, if there is no winning bid at the foreclosure auction, it would be advisable to allow the borrower to request a new appraisal of the property, and to use the new appraisal as the value at which the property is awarded to the lender. Apart from that, the legal significance that ought to be given to financial institutions' voluntary acceptance of current legislation's Good Practice Code should be seen in terms of banks' offer to amend contract terms at the borrower's request. The borrower may ask a potential lender to have the loan refinancing agreement notarized as an act of duty, which would pave the way to legal action if not complied with. Lenders may extend conditions to borrowers who do not meet their requirements, and they have a great deal of independence in many respects. Accordingly, registrars exercise but little control over loan refinancing arrangements, barring cases where pre-existing debts are rolled together and cases of surrender in lieu of payment when there are subsequent liens on the mortgaged property. As other alternatives for borrower protection, a direct, mandatory procedure for surrender in lieu of payment is not advisable (Surrender in lieu of payment should be allowed as a possibility only if the parties agree to it), but regulation of «individual over indebtedness or insolvency» (as it has come to be called) could be allowed.