The Provincial Court of Barcelona has ruled in favor of CaixaBank and a mortgage debt of 35,941.22 euros may be collected on the home of a deceased man. Their children will not have to pay the amount with their own money, although they will have to respond with the house they have inherited, since Justice explains that the debts are transmitted with the inheritance and fall on the mortgaged property that guarantees the loan.
The conflict begins with the death of Justiniano, who years ago had requested a mortgage loan from CaixaBank. But this man died in 2011 and left an outstanding debt of 35,941.22 euros, which was linked to the mortgage loan. Since the bank could not recover the money, it decided to claim it from the children and relatives who were listed as borrowers or who could be possible heirs.
On this point, the parties do not agree, since CaixaBank maintained that, even if Justiniano had died before the trial, his heirs had to respond with the mortgaged home, since the debt was part of the existing inheritance. On the other hand, the children and heirs argued that they could not be forced to pay the debt with their own money, since the responsibility should be limited to the mortgaged home and not extend to their personal assets. For this reason, they decided to go to court.
Thus, in a first resolution, the Court of First Instance of Badalona ordered execution only against the living borrowers, but refused to extend it to the heirs of Justiniano for not having been part of the initial procedure. CaixaBank, not satisfied, appealed this decision. Finally, the Provincial Court of Barcelona corrected this criterion and agreed with CaixaBank, also authorizing the execution to be issued to the heirs of the deceased, although it made it clear that they will only be liable with the inherited home, never with their personal assets.
The inheritance obliges you to respond for the debt, but only with the mortgaged property
The main reason why CaixaBank was right is because, although the non-debtor mortgagee (Justiniano) had died before the procedure began, the mortgage debt was still linked to the property that he had provided as collateral. In this way, explains the Provincial Court of Barcelona, ”it is also appropriate to dispatch execution against unknown heirs or recumbent inheritance of Don Justiniano, although limited with respect to them to said property.”
That is, the children do not have to pay with their own money, but the entity can foreclose on the mortgaged home, because the obligation falls on the property given as collateral and not on the personal assets 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 execution to be directed against “whoever, without appearing as a debtor in the executive title, turns out to be the owner of the assets especially affected by the payment of the debt.”
The ruling recalls that Justiniano was not convicted because he had died before the lawsuit, but this does not eliminate the force of the mortgage: “the right that Caixabank has to have the execution of the judgment carried out charged, among others, to the real right of mortgage that guarantees compliance with the pecuniary obligations of the unpaid contract, is declared, said mortgage retaining its preference and rank.”
In summary, CaixaBank manages to get the Provincial Court of Barcelona to agree with it because the debt of 35,941.22 euros was linked to the mortgaged property, and this asset is part of the inheritance. Therefore, even if the children do not respond with their personal assets, they must accept that the inherited home be used to pay off the outstanding debt.