The Provincial Court of Barcelona has given the reason to Caixabank and a mortgage debt of 35,941.22 euros on the house of an already deceased man may be charged. Their children will not have to pay the amount with their own money, although they must respond with the house they have received in inheritance, since justice explains that debts are transmitted with the inheritance and fall on the mortgaged good that guarantees the loan.
The conflict begins with the death of Justinian, who years ago had asked for a mortgage loan to Caixabank. But this man died in 2011 and was pending a debt of 35,941.22 euros, which were linked to the mortgage loan. As the bank could not recover the money, he decided to claim it to the children and relatives who were borrowers or who could be possible heirs.
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At this point, the parties do not agree, since CaixaBank argued that, although Justinian had died before the trial, his heirs had to respond with the mortgaged housing, since the debt was part of the reducing inheritance. On the other hand, the children and heirs defended that they could not force them to pay the debt to their own money, since the responsibility should be limited to mortgaged housing and not extended to their personal assets. Therefore, they decided to go to court.
Thus, in a first resolution, the Court of First Instance of Badalona ordered the execution only against living borrowers, but refused to extend it to Justinian’s heirs for not having been part of the initial procedure. Caixabank, not satisfied, resorted to this decision. Finally, the Provincial Court of Barcelona corrected that criterion and gave the reason to CaixaBank also authorizing the execution against the heirs of the deceased, although it made it clear that they will only respond with the inherited housing, never with their personal heritage.
The inheritance forces to respond to the debt, but only with the mortgaged property
The main reason why CaixaBank was right is because, although the mortgageant non -debtor (Justinian) had died before the procedure began, the mortgage debt remained linked to the property he had contributed in guarantee. In this way, the Provincial Court of Barcelona explains, “it is also appropriate to dispatch execution against ignored heirs or inheritance of Don Justiniano, although limited with respect to them to said farm.”
That is, the children do not have to pay with their own money, but the entity can execute the mortgaged housing, because the obligation falls on the good given in guarantee and not on the personal heritage of the heirs. This is due to the provisions of article 538.2.3 of the Civil Procedure Law (which can be consulted in this Official State Gazette), which allows us to direct the execution against “who, without appearing as debtor in the executive title, turns out to be the owner of the goods especially affected by the payment of the debt”.
The sentence recalls that Justinian was not convicted because he had died before the lawsuit, but this does not eliminate the strength of the mortgage: “The right that Caixabank has to have the execution of the sentence is made with charge, among others, to the real mortgage right that guarantees compliance with the pecuniary obligations of the unpaid contract, preserving said mortgage its preference and range.”
In summary, CaixaBank makes the Provincial Court of Barcelona right because the debt of 35,941.22 euros was linked to the mortgaged property, and this is well part of the inheritance. Therefore, even if the children do not respond with their personal assets, they must accept that inherited housing is used to pay out the outstanding debt.