When do you prescribe a mortgage debt in Chile?, great question for those who have a mortgage and want to know if they prescribe the mortgage debt, so they can check here their prescribe or not.
When do you prescribe a mortgage debt in Chile?
The prescription of debts as to when it prescribes a bank debt in Chile, such as a mortgage, is due to poor financial planning or financial ignorance, which ends up generating debts in addition to playing against when hiring other financial products such as credit.
What prescription of debts is it?
In Chile debts do not prescribe, however the prescription of debts means companies or people lose the right to collect a debt. By what means that the company or person or bank with which we will have the debt, will not be able to charge them since the term was expired or prescribed and thus the prescription of the debt is generated .
As a general rule, they only prescribe if, after 5 years have elapsed since the delinquency was generated, there has been no collection management. However, it should be noted that every time they charge you, even a penny, the 5-year term is renewed. It is important to know, however, that each case is different, depending on the vicissitudes of the case, but that is the general norm.
Example case of mortgage prescription
There is a failure of the Excma. Supreme Court of May 8, 2017, Role No. 79.030-2016, associated with the prescription of a general guarantee mortgage, this modality is a surety of wide application, among commercial banks in Chile.
An example is that of a debtor who hired a mutual mortgage in 2005, and who secured a specific first mortgage and a second general guarantee, guaranteeing the future obligations of the constituent of the guarantee. This constituent had no obligation with the bank after 2005; As the 20-year mortgage loan, at the end of 2 years, it could not serve the debt.
At the trial, the debtor demanded the declaration of prescription of obligations, actions and / or rights, lifting and cancellation of the general guarantee mortgage by prescription on the grounds that 10 years had elapsed since it was constituted, without a contract being contracted during that period. credit or obligation to the bank. A first instance ruling was made by taking only the statement on the first specific mortgage and excluding everything else, that ruling was confirmed by the Court of Appeals.
The judgment indicates that the jurisprudence recognizes and gives validity to the mortgage in guarantee of future obligations and for amounts not established, although it does not generate that this should continue indefinitely. Although it makes clear the sentence that the expiration period of 10 years would be the one applicable to a condition.
Taking what was stated by Professor Abeliuk about the laws that allowed reducing the prescription periods, he explains that “we are inclined to recognize that no condition lasts more than ten years to be fulfilled, unless it is the death of a person in the cases she is condition, can still be considered pending. ”
Therefore, the judgment is appealed to the appeal, and partially revokes the judgment of first and second instance, provided that it was proved that there were no future obligations after the 2005 mutual mortgage contract, leading the bank to raise and cancel the General guarantee mortgage and its prohibition.
The lifting of levies was considered in Law No. 20,855 of 2015 – amendment of Law No. 19,496 (FERNAC Financial) and Law 20,190, regarding Garments without Displacement – taking into account that, in secured mortgage loans In general, after fully paying the secured debts, the credit granting bank must inform the debtor of the payment in writing, and the debtor has the right to request a general guarantee mortgage. if there are no outstanding obligations to the bank secured with said mortgage, the debtor may not be obliged to keep the mortgage in favor.
Although the information is not abundant and it is not clear at all about the prescription of a mortgage debt, there are judgments in justice that set a precedent and that although isolated allow comparing situations that each mortgage debtor has and knowing whether said ruling favors it or not.