La reforma del procedimiento de ejecución hipotecaria por la Ley 12/2023 y el Real Decreto-ley 6/2023tramitación electrónica y requisitos de procedibilidad

Abstract

On January 10, 2024, Royal Decree-Law 6/2023 came into force and its requirement that procedures be initiated through electronic demand. However, the reforms to the mortgage foreclosure procedure introduced by it come into force on March 20, 2024, producing the paradox that during that intermediate time notifications in the procedure (initiated electronically) may be made in person at the address established in the mortgage loan deed and recorded in the Property Registry. Another problem posed by the reform carried out by Royal Decree-Law 6/2023 refers to the executive title. Normally, the mortgagee will have an executive title in a non electronic document. However, the law does not executive value to it but requires obtaining a second electronic copy, which must be granted with the consent of all interested parties. The question is whether this requirement that the executive title be an electronic document is enforceable retroactively. Regarding the effectiveness of res judicata, for the purposes of execution, which is intended to be given to the order by which execution is dispatched and which has appreciated the existence of abusive clauses with reasons, it may not be in accordance with the community jurisprudence that seems to require, In any case, the possibility of raising opposition to the mortgage foreclosure due to the existence of abusive clauses. Law 12/2023 also introduces as a procedural requirement for the execution when the mortgage creditor is a large holder, the mortgaged property is the habitual residence of the mortgage debtor and the latter is in a situation of economic vulnerability, the need to raise with priority to the executive demand, an intermediation or conciliation procedure, in which the Code of Good Practices of the Royal Decree-Law 6/2012 must be applied, if the executing creditor is a member of it.