Uniube+ Direito das Coisas - Semana 12.2

Summary

This lesson discusses the concept of mortgage extinction by a higher-ranking creditor. The lecturer explains how mortgages work when multiple creditors are involved, focusing on first and second-degree mortgages. It explores the possibility of the second-degree creditor intervening in the event of a first-degree mortgage foreclosure, using legal mechanisms to either prompt payment or assume the first-degree creditor’s rights. The course covers the importance of the mortgage registration date, the steps in the process, and the legal principles behind subrogation and priority. Key legal articles from the Civil Code are referenced to support the discussion.

Takeaways

• 😀 The priority of mortgage creditors is determined by the registration date, not the loan date.
• 😀 A second mortgage creditor cannot enforce their claim before the first mortgage is settled, even if their debt is due.
• 😀 If the debtor fails to pay, the second mortgage creditor can deposit the amount owed to the first mortgage in court.
• 😀 When the second mortgage creditor deposits the first mortgage debt, they may request the debtor and first mortgage creditor to take action.
• 😀 If the debtor pays, the first mortgage is extinguished, and the second mortgage creditor maintains their claim on the property.
• 😀 If the debtor does not pay, the second mortgage creditor can assume the role of the first mortgage creditor by subrogation.
• 😀 Subrogation allows the second mortgage creditor to step into the first mortgage creditor's position and take legal actions on their behalf.
• 😀 The subrogation process ensures the second mortgage creditor can pursue the property at a later time when market conditions are more favorable.
• 😀 In certain cases, the second mortgage creditor can prevent an auction at a low price, which could harm their financial interests.
• 😀 Legal actions and steps are regulated by specific articles of the Brazilian Civil Code, including Articles 1422, 1476, 1477, and 1478.

Q & A

What is the basic concept of a mortgage in the context of this lesson?

A mortgage is a form of real estate guarantee, where a debtor offers a property as collateral for a loan. In this lesson, the focus is on understanding the different levels or 'degrees' of mortgages, where multiple creditors can hold mortgages on the same property, with the priority of payment determined by the registration order.

What determines the priority of creditors in a mortgage scenario?

The priority of creditors is determined by the order in which the mortgages are registered, not by the loan amount or the date the loan was taken. The first creditor to register their mortgage holds the first-degree mortgage, and subsequent creditors are assigned higher-degree mortgages.

How does the law prioritize the payment to creditors in a mortgage scenario?

According to the Brazilian Civil Code, the first-degree creditor is paid first, followed by the second-degree creditor, and so on. The priority is strictly based on the registration order of the mortgages, as per Articles 1476 and 1477 of the Civil Code.

What happens when a debtor fails to pay the first-degree mortgage?

If the debtor fails to pay the first-degree mortgage, the second-degree creditor cannot take action until the first-degree mortgage is settled. The second-degree creditor must wait for the first-degree creditor to receive their payment before proceeding with any action.

What is the unique feature of the second-degree mortgage creditor’s rights in case of default?

The second-degree mortgage creditor has the right to intervene in the case of a default. If the debtor fails to pay, the second-degree creditor can pay off the first-degree mortgage and effectively take over the rights of the first-degree creditor through a process known as subrogation.

What does subrogation mean in the context of mortgages?

Subrogation is a legal concept where the second-degree creditor, after paying the first-degree creditor’s mortgage, assumes the rights and duties of the first-degree creditor. This allows the second-degree creditor to take over the foreclosure process and recover their loan.

What happens if the second-degree creditor does not intervene by paying the first-degree mortgage?

If the second-degree creditor does not intervene by paying the first-degree mortgage, they must wait for the first-degree creditor to execute their rights. The second-degree creditor has no legal standing to act before the first-degree mortgage is resolved.

What happens if the debtor voluntarily pays the first-degree mortgage?

If the debtor voluntarily pays the first-degree mortgage, the second-degree mortgage is extinguished. The second-degree creditor no longer has any claim on the property, and the property remains under the first-degree mortgage.

Can the second-degree creditor act before the first-degree creditor in certain circumstances?

Yes, in certain cases, if the first-degree creditor does not take timely action, the second-degree creditor can act by depositing the required payment in court. This allows the second-degree creditor to step into the shoes of the first-degree creditor and pursue foreclosure proceedings themselves.

What legal articles govern the process of extinguishing or transferring mortgage rights?

The process of extinguishing or transferring mortgage rights is governed by Articles 1476, 1477, and 1478 of the Brazilian Civil Code. Article 1478, in particular, addresses the concept of subrogation, allowing a second-degree creditor to step into the role of a first-degree creditor if they pay the original debt.