CONSIDERACIONES SOBRE LA HIPOTECA FLOTANTE: EL NUEVO ARTÍCULO 153 BIS DE LA LEY HIPOTECARIA.

Abstract

This paper looks the legal framework currently applicable in Spanish law to the "global" mortgage, where mortgage acts as collateral security up to a certain ceiling. The legal admissibility of such mortgages, which has been systematically rejected by the Directorate-General of Registries and Notarial Affairs in its decisions since the mid-eighties, has now been naturalised by a new article added to the Mortgage Act, article 153 bis, as a consequence of the reform wrought by Act 41/2007 of 7 December. The paper looks at: (i) the different elements of the mortgage agreement, paying special attention to the problems stemming from the primal or supervening existence of subjective plurality in the position of the mortgage lender; (ii) the legal framework for voluntary transfer (by assignment or conventional subrogation), either of all or part of the credits secured by the mortgage, or of the mortgage itself; (iii) possible problems stemming from full or partial legal subrogation to the credits secured by the mortgage; (iv) foreclosure, paying special attention to cases of partial foreclosure, as regards the subjects (foreclosure by one of the mortgage co-lenders) and as regards the object (subsistence of the mortgage on the credits not yet due); (v) and the application of general rules on mortgage termination and cancellation of mortgage registration where this sort of mortgage is concerned.