Carlos Baos – Litigating against a co-debtor in Spain

Litigating Against a Co-Debtor in Spain. Mortgage Loan. Jurisdiction

Joint ownership of real estate by several persons is not without its problems. When multiple individuals share the ownership, they also share the responsibility for its upkeep and maintenance, mortgage payments. This article explores the process of filing a claim against a co-owner, when he/she fails to contribute to his/her financial obligations.

Non-Payment of Mortgage Share

It is very common for one of the co-owners to stop contributing to the mortgage payments, and the moving abroad. This often leaves the other co-owner bearing the full financial burden to avoid property seizure. Can the responsible co-owner take legal action against the co-debtor? Definitely. Let’s examine the specifics.

The Spanish Civil Code contemplates a figure that is very useful in these cases. The Action for Reimbursement (also known as Action of Repetition). How does it work? Simple. The payment made by one co-owner to the bank, allows him to seek reimbursement from co-debtors for their respective shares.

Jurisdictional Challenges: Co-Debtor is Abroad

When a co-debtor resides outside Spain, challenges regarding jurisdiction arise. Firstly, because of the need to serve the claim abroad. Depending on the debtor’s country of residence, this can be more or less complex. Although there are mechanisms such as European Regulation 2020/1784 that simplify things. Secondly, to conclude which court has jurisdiction: those in Spain or those where the debtor resides. While the debtor may argue for litigation in his/her country of residence, European Regulation 1215/2012, and a recent ruling in the CJEU offer clarity on this regard.

Regulation 1215/2012.

In cases involving loan contracts, jurisdiction may align with the domicile of the bank, based on Article 7(1)(b)(2) of the regulation, and the interpretation of it made by Ruling of the Court of Justice of the European Union (Third Chamber) of 15 June 2017. This alignment is primarily based on the concept of contractual obligations. Since the claim between the co-owners has its origin in the mortgage loan. The action for reimbursement could be pursued from Spain, regardless of the co-debtor’s residence. The place where the service of the main contract (mortgage) was to be provided, could be the one setting the jurisdiction of the claim between the co-owners.

If you’re contemplating legal action against a co-debtor in Spain, our team at White-Baos Lawyers stands ready to provide expert guidance on your options for reclaiming financial responsibility. Contact us.

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Carlos Baos (Lawyer)

White & Baos.

Tel: +34 966 426 185

E-mail: info@white-baos.com

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Written by

Carlos Baos (Lawyer)

Lawyer Carlos Baos has been advising on variety of expat-related legal issues for years and weekly column offers free weekly insights.

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