La hipoteca rezagada en el concursocuestiones civiles y registrales

Résumé

In recent years, the legal doctrine has given birth to a new kind of mortgage (« the lagging mortgage») which is not foreseen in the classic manuals of Civil Law or Mortgage Law, but which reflects in a very plastic way the reality that underlies this figure: a mortgage formalized before the declaration of insolvency which is intended to be registered after this moment, at a time when the debtor’s patrimonial faculties are subject to the limitations according to the articles 106 and 107 of the consolidated text of Spanish Insolvency Law. This work explains in detail the practical issues that underlie this figure. As we will see, this mortgage can be registered after the declaration of insolvency but the secured credit has not preference in the collateral. This feature raises some difficulties when determining the applicable regime, including its cancellation.