We are searching data for your request:
Upon completion, a link will appear to access the found materials.
In recent years, the consistent practice of selling to third parties, generally collection companies, credit portfolios that to date they held against companies and individuals has become widespread among financial institutions. This has generated as a main consequence the confusion and uncertainty of the debtors before the change of ownership of the creditor.
The way to proceed is as follows: a financial institution sells a series of credits to an investment fund for a price much lower than the corresponding one (there have been cases of up to a 90% reduction), so that the new owner is the investment fund. The question that arises is: what can the debtor do?
The truth is that the debtor in this situation may even benefit.
Article 1535 of the Civil Code establishes than "By selling a disputed credit, the debtor will have the right to extinguish it, reimbursing the assignee the price paid, the costs incurred and the interest on the price from the day it was paid.A credit will be considered litigious as soon as the claim relating to it is answered.The debtor may use his right within nine days, counted from the assignee claiming the payment ".
In accordance with this provision, the debtor of a disputed credit that has been sold to a third party will have the right to acquire it, upon payment of the price paid for him, as long as, as we say, this is litigious, that is, it is immersed in a judicial proceeding.
However, not all disputed claims are capable of applying this prerogative to them, since, according to jurisprudence, a series of requirements must be met:
- It is not enough that the defendant has answered the claim by opposing procedural exceptions, but must have raised substantive exceptions, that is, denying the existence or legitimacy of the debt.
- Or that the process of answering the claim has not been precluded because the defendant has not appeared or answered in time.
- The norm does not apply either if, at the time of the assignment, the process on the existence or enforceability of the credit has ended by final judgment, by withdrawal, expiration of the
instance or transaction.
- Similarly, the rule would not be applicable if, at the time of the assignment, there were legal actions to enforce the credit, or if the response period had expired and the credit was in the forced execution phase (for example, with the date of auction set). This last assumption (process in more advanced stages of execution without the debtor having answered the claim) is the one that occurs most frequently among credits
A example in which the right of withdrawal would be possible would be the following:
A financial entity sells a loan portfolio to an investment fund in which the mortgage loan of Mr X is located, which at that time is immersed in a legal proceeding for non-payment of mortgage installments. To MR. X informs you that your loan has been sold for 10,000 (10% of the price that you still have to pay). In this situation, the debtor has 9 days to collect the money and thereby extinguish his credit.
As can be seen, due to the multiple obstacles and difficulties, the right of withdrawal on the disputed credits is an exception, making it very difficult for it to be applied in reality.
But even gathering them, the term to exercise it is 9 calendar days since the assignment of the credit was communicated, so it seems unlikely that the debtor can gather the necessary money in that term to acquire the credit.
But in the event that if you can avail yourself of this right, this would mean the cancellation of your credit for a price substantially lower than that owed prior to the assignment.