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Heavy fighting foreclosure


Für Kreditnehmer ist es bei Zwangsvollstreckungen von Immobilien 
oft schwer, ihre Interessen durchzusetzen.

GARMISCH. Who in Germany, buys a house and land or to take out a loan, it must order the financing bank collateral in the form of a mortgage or mortgage. If, for failure to pay, the bank needs an enforceable order to operate a foreclosure, to the sequestration.

To save time in an enforcement procedure that requires the bank by a borrower who accepts his guilt, impose a rule to be able to receive in a notarial deed of immediate execution against his immovable and movable property.

Financial investors have a reputation, to aggressively pursue their rights

Where this book but then later in the hands of aggressive player, it will be difficult for the house builders. For he must then take that money in hand to defend himself against the auction of his property by judicial means – and that in a situation where he is strapped for cash.

This experience had the boss of a Berlin real estate company to make, who had ordered its banks financed the acquisition of land for a mortgage in the amount of 1.5 million euros and agreed by notarial act with immediate execution was, if the repayment of the loan would be difficulties. He paid the loan back on track, until an outstanding balance of approximately 400 000 euros remained. Then he actually got into arrears.

In the meantime, the American financial investor Lone Star Bank, which had granted the loan had been fully incorporated, and now operate because of the outstanding debt on the Hudson Advisors Germany GmbH, the enforcement of the property. On the other hand, although the debtor can defend – and with a defensive action.

The catch: In order for the application is ever delivered, request the court fees. In the fall of the Berlin real estate company that would be only about 20 000 euros have been, because the object value is measured by the amount of land about 1.5 million euros. Because the company could not raise the money, put it at the competent civil court an application for legal aid. However, the was refused.

This negative decision, the lawyer for the real estate company, Christian Winterhoff, professor and partner of the law firm Graf von Westphalen, taken as a reason, the Federal Constitutional Court in Karlsruhe, filed a constitutional complaint (file No. 2 BvR 2417/09), has received the IHT Legal Success excerpts .

The fact that the enforcement successes without any further judicial review was that his client violated his basic rights to freedom of action and property rights, argues Winterhoff. In addition, a breach against the fundamental right to effective judicial protection, because the action and cost burdens for executions of notarial instruments on each defendant would be passed as the weakest link in the chain. The legislators failed to fill this gap in legal protection under the new Risk Act.

Constitutional Court has little chance

The law limiting the risks associated with investments had entered into force in August 2008 after it had emerged in the public criticism of the institutional buyers of distressed real estate loans, known as non-performing loans.

In addition to enhanced disclosure of banks, the notice period for real estate loans to about half a year has been extended. In addition, the financing banks now have to cancel the land before they can proceed to enforcement in each plot. The amendment applies only to contracts entered into after the entry into force of the law.

The present constitutional legal experts, however, rather limited opportunities evacuate book. "If we were to stop the immediate execution of deeds and future provisory a judicial review, we would get in Germany, easy Greek relations, because claims arising from mortgage credit only after years would be enforceable," says herself known as the Bremer Bank Civil critic Professor Peter Derleder.

He adds, however, that the enforcement clause – that is, for the start of executing the attestation of the notary public – according to the Risk Limitation Act may not be issued prior to the occurrence of payment problems.