LA COMPETENCIA JUDICIAL PARA LA DETERMINACIÓN DEL CARÁCTER AFECTO O NECESARIO DE LOS BIENES DEL CONCURSADO, OBJETO DE EJECUCIÓN HIPOTECARIA, Y LA STC 191/2011, DE 12 DE DICIEMBRE.

Abstract

Should a mortgage foreclosure intersect with bankruptcy proceedings in which the bankruptcy applicant is the mortgagor, as highlighted in Constitutional Court Ruling 191/2011 of 12 December, a problem arises concerning the action of the court of first instance hearing the foreclosure proceedings and the judge hearing the bankruptcy proceedings. One current of case law interprets that in such cases devolutive civil references for preliminary rulings should be requested in the foreclosure proceedings (to ascertain whether the asset at issue in foreclosure is or is not a necessary factor in the continuation of the bankrupt's business activity). The judge hearing the bankruptcy proceedings must decide on this question, and the court of first instance will decide whether to continue or suspend the foreclosure proceedings, depending on the findings of the judge hearing the bankruptcy. Another current of legal thought and case law holds that, in such a case, the court of first instance is no longer an objective judge of proceedings, and at all events the foreclosure must be suspended and the proceedings forwarded to the judge hearing the bankruptcy, who will decide whether or not separate foreclosure proceedings should continue. This decision will depend on the nature of the asset. If foreclosure proceedings continue, it is as separate proceedings within the bankruptcy proceedings. Act 38/2011 amends paragraphs 2 and 5 of article 56 of the Bankruptcy Act and raises an important question of interpretation: Which of the two solutions have legislators embraced?