Spanish Property Auction Horror

January 27th, 2011

As tempting as it may look, “handing over the keys” to the bank (dacion en pago in Spanish) , without pre-arranging this via a Notary Public and disappearing, has to be done with care, for being pretty dangerous, unless you have the right figures. Or you happen to have been lucky enough to have been judged by the court in Navarra that has ruled that the bank is not entitled to not accept the “handing” in of the keys, in a very relevant decision.

This ruling (to be discussed on a next post), however important it may seem, does not take away the horror of our mortgage foreclosure legislation. The reason for this happening is that Spanish provisions in respect of foreclosures, unlike other countries, stipulate that auctions will be valid so long as the minimum bid is over 50% of the auction start price (the latter value generally being pre-agreed when signing the mortgage deeds and equivalent to the valuation), irrespective of the current outstanding debt with the bank.

I have taken a real-life example, on a property at Jardines de Casares, and to understand this have attached the following:

The print out we got from the bank after the property had been repossessed, showing the existing debt and the value the property achieved at auction.
The value given to the property, in 2006, for auction purposes (coincidental with the valuation).

So we have then that property was valued, for auction purposes, at €350,700 (the auction start price), the outstanding mortgage was of €243,217 and, as usual, nobody of interest turned up (only retired law-lovers and the occasional passers-by) .

The auction kicked off with only the bank being present -and a few curious skinned time wasters -rapidly skipped the 70% ASP mark and ended being repossessed for 50% of this value. And the “summarily executed” debtor ended up, as a consequence of these unfair laws, without a property but still owing €67,867 plus a further €100,000 approximately in legal costs and arrears interest (19% p.a.).

In the above case-study, from the debtors perspective (which is the one we are interested in here), the following scenarios and consequences were possible (although only scenario 5 was probable, considering the value of the property and the area):

Bidder(s) turn up and bid over the debt (being over 70% of the start price): we walk away with no property but no debt and probably some spare cash.
Bidder(s) turn up and match the bank debt (between 50% and 70% of the start price): we walk away with no property but no debt. In this case we would have the right, within 10 days, to bring a third party to improve the bid.
No bidder(s) turn up but the bank repossesses for the debt value: we walk away with no property but, luckily, no debt.
No bidder(s) turn up and bank repossess at over 70% of the start price but under the debt: we walk away with no property and the horrific auction negative-equity.
As point 4 but bank repossess at under 70% of the ASP (sometimes at 50% of start price or the value of the debt): we walk away with no property and a larger auction negative-equity, worst than 4. However, albeit illusory, we still have 10 days to bring a third party to improve the bid, up to 70% or the debt.

Under the current Spanish foreclosure system, if we find ourselves in the scenarios of points 4 and 5 we can end up being chased for the difference (which is fictitious although becomes very real once the Judge’s gavel goes down!), calculated by subtracting what article 670 of the LEC (civil Procedural Act) allows the bank to keep the property for, from what we owe them, just as the couple from Wiltshire are experiencing, to their sorrow.

And so, what options do we have? Not many, but I can propose two:

Stop paying your mortgage and try to convince the bank that it is silly to go to Court and clever to take the property back, because a) you have no property in Europe and b) you are going to live in Peru for the rest of your life (don’t be shy here, concoct a proper story, set them up!)
If you are not in any of those scenarios, or are too honest to lie, find a friend who will be happy to put in a dummy bid to push the auction value up to the debt you have with the bank. Your friend will have to put down, as a deposit, 30% of the starting price (just over €100,000), and needs to get the bank to make a first bid equivalent to the debt. This will free you from the negative equity, and your friend will be free to get the deposit back, job done satisfactorily! Careful though: the bank’s representative may push his bid short of the debt, making your friend put a higher bid only for the bank to then…pull out. Now your friend has a problem!

And bear in mind the following:

Most auctions end up with the bank repossessing as they will not -yet- settle for anything less than the outstanding mortgage capital (even if it is way over the market value). We should see a change happening towards mid-2011, as the Bank of Spain has already warned.
Bidders currently discard 95% of the auctions happening in Spanish courts.