MALAS PRÁCTICAS BANCARIAS EN LA ACTIVIDAD HIPOTECARIA.

Abstract

The issue of access to housing that has intensified since the beginning of the crisis in 2007 is closely linked to its financing through mortgage loans, while to its poorly resolved dual condition as an asset and as a fundamental right. The poor performance of our rental housing market has pushed many families into indebtedness, which has been encouraged by easy access to the loan. Some banking practices studied here have contributed to this proliferation of the mortgage loan, such as, that the credit institution is in a better position to sell floating rate loans as a part of its interest rate risk is borne by the consumer or non-professional client himself (through ground clauses or swaps, which are analysed from a jurisprudential point of view and through MiFID regulations) or the fact that our banks have been allowed to refinance themselves massively by the atypical «structured covered bonds». Throughout the paper it is analysed the role of the notary in relation to control of legality, the phenomenon of judicial decisions that support the enforcement of the mortgage loan only on the land or those that extinguish the debts after a failed insolvency proceeding in order to mitigate the negative consequences to the mortgagor, the «binding practices,» the lack of an adequate legal framework for rating agencies' liability for torts, the need for generalization of the auction and, finally, the need of greater transparency for the security of the mortgage securities.