Summary: 1. Introduction; 2. Mortgage in the Peruvian Civil Code; 3. Legal hypothec; 4. The problem of Article 1119 of the Civil Code. If, in addition to the foreclosed hypothec, there is another lien on the property, the law of the State determines the priority of the creditors on the property. For example, Article 9 of the Uniform Commercial Code (UCC) governs conflicts between mortgages on immovable property and foreclosure seizures. Mortgages, which are negotiable securities, are governed by Article 3 of the UCC. If you miss certain mortgage payments, the lender will contact you to let you know that you are late (defaulting).
If you miss several payments, the lender will send you a letter stating that you have not met the terms of the mortgage. The letter informs you that you have approximately 30 days to update payments. If you do not make up-to-date payments, the lender may initiate enforcement proceedings. Legal hypothec: is that derived from the law. Here are three: HUD-approved agencies can`t charge fees for foreclosure services. However, you may charge a reasonable fee for other services such as general housing education and pre- and post-purchase advice. Article 1119, on the other hand, provides that legal hypothecs are established ipso jure and registered ex officio under the responsibility of the registrar at the same time as the contracts from which they originate. This second hypothesis is the real problem, because the second paragraph of Article 1119 of the Civil Code states that “in other cases”, the creditor`s right derives from the registration of legal hypothecs, which would allow us to conclude that, in what is provided for in the first paragraph of Article 1119 of the Civil Code, it does not matter, after all, whether legal hypothecs are registered or not, since these legal hypothecs are “by operation of law”, otherwise the clarification made in the second paragraph of the article in question is not necessary.
The mortgage concerns immovable property as a guarantee of compliance with its own obligation or an obligation of third parties. The guarantee does not determine expropriation and gives the creditor the right to sue, prefer and sell the mortgaged property in court. The mortgagee and the mortgagee can generally transfer the rights to the mortgage. In some states, if the buyer of a mortgaged property does not explicitly assume the mortgage, the transfer is derivative. Some hypothecs contain clauses to prevent the transfer of hypothecs: a clause that requires payment of the hypothecary loan to make the sale of the hypothecated property (sale due) and a clause that prevents the hypothecated property from being encumbered (payable on charge). These clauses make it possible to accelerate the mortgage. In 1982, Congress passed the Garn-St Germain Depository Institutions Act of 1982 and the clauses went into effect nationwide. 1. If the legal hypothec itself is not valid because it has not been registered ex officio by the registrar, then we could categorically confirm that we will be faced with the disappearance of the hidden hypothec.
The mortgage is indivisible and special in nature; He lives completely on all the affected properties, on each of them. In this regard, we must emphasize that, unlike article 1097 of our Civil Code, which provides for a conceptual definition of hypothec; And where, moreover, we can conclude that the main character of the hypothec is consensualism (that is to say, the part of the will of the parties), when we speak of the legal hypothec, we start on the contrary from the fact that the will of the parties is abolished and that it is the law that prescribes the constitution of this hypothec. In other words, the mortgage in this case arises from the rule of law, provided that we are in one of the three cases established by 1118 of the Civil Code in force.
