Lawsuit of credit agreements with a pledge with no possession transfer, through the special commercial way, the enforcement special proceeding against secured pledge with no possession transfer
In accordance with the provision of Article 346 of the General Law of Titles and Credit Transactions, the pledge with no possession transfer it’s a property’s right in rem which target is to guarantee an obligation fulfillment and its payment priority, keeping, the debtor, possession over such goods, except in accordance with the provision of Article 363 of the same General Law.
Likewise, the Article 1414 bis 7 of the Commercial Code, establishes it will be processed in accordance with the legal proceeding of guarantees enforcement granted through pledge with no possession transfer and guarantee trust, all trial whose purpose is the payment of a credit, due and payable, and the possession of the goods that guarantee it, as long as the guarantee was granted through pledge with no possession transfer, or by guarantee trust where it was not agreed the proceeding foreseen in the Article 403 of the General Law of Titles and Credit Transactions; so in order for the trial to keep on this chapter’s provisions, it’s an essential requirement that the credit mentioned above is stated by writing in a public or private document as appropriate in the terms of the General Law of Titles and Credit Transactions and that is demandable in the stated terms or in accordance to the legal applicable provisions.
In this regard, it should be pointed out that enforcement orders are legal actions stated in one or several documents, to which, the Law or the parties agreement, grants the vehement presumption of certainty; the enforcement orders’ elements must be in the legal acts’ substance, and enough proof, within the documents to be formalized. These elements are: there must exist a credit, with these features “certainty, liquidity, and collectability”, which once verified by the legal authority, give place to its execution against the liable party.
Therefore, the order must be strong enough to constitute by itself full evidence and it doesn’t target to state doubtful or controverted rights but to carry out those that have been recognized by acts or orders of such force that constitute a vehement presumption that the acting party’s right is legitimate and is sufficiently proved in order to be certainly attended. For the concerning case, the trial’s target is the payment of a liquid and payable credit right.
The right, that the right consigned in the title is explicit in the document, without having to resort to information not included in it, so that its existence can be verified only with the title’s textual content. The liquidity, its numerical expression, in a certain quantity, or as a result of extremely easy arithmetic calculations, that can be made with the elements clearly stated in the paperwork. The collectability comes when all the elements foreseen by the law or the parties are fulfilled for the credit to be paid without a doubtful or unfulfilled period of time.
Works as support to this the following thesis which establishes the following:
Commercial credit with a collateral guarantee, to determine if it’s correct the way the payment was demanded, the judge will have to address both the lawsuit’s facts and the documents filed.
From the interpretation of the Commercial Code’s article 1055 bis, it’s noted that the holder of a commercial credit with a collateral guarantee can choose to demand the debt payment by way of the commercial, ordinary, special, mortgage or the corresponding enforcement procedure in accordance to the applicable commercial or civil legislation. So that when the base document of the action is a simple credit opening contract and besides, has a pledge, the circumstance that the plaintiff offers attached to the contract an account statement certified by an authorized public accountant, which taken as a whole can constitute a title that entails execution -in accordance with the applicable legislation- it does not mean it cannot be claimed the credit’s payment in the ordinary or oral commercial trial – depending on its amount – since according to the mentioned clause, the creditor can freely choose to apply the action that is in his best interest as long as it fulfills with the origin requirements established by law for it. It’s not an obstacle to the above that in the base credit’s contract of the action, the parties were agreed that that contract and the accounting certificate were an enforceable title since this doesn’t limit the creditor to assert its right to pay only in the executive proceeding since it is the law and not what was agreed in the contracts between the parties, what determines the way the action must be done. In this context, it is concluded that the debts deriving from the credits granted with a pledge, can be claimed in the commercial executive trial based on the credit agreement and the accounting certificate, through the ordinary or oral way, taking into account the amount of the matter – or, in the special way where the agreed pledge is pursued, so the judge must attend both to the facts of the claim and to the documents exhibited to be aware of the action taken by the creditor, since the legislation gives freedom to choose the way.