Assignment of a mortgage
Facts:
A private loan of 90,000 EUR is secured by a second-ranking mortgage of 90,000 EUR. In the first rank, there is a building society with a mortgage of 100,000 EUR, but the loan with the building society has already been repaid and the borrower has a corresponding release authorization from the building society.
The property has an estimated value of 130,000 EUR.
The private loan agreement is expiring and is now set to be extended, with the remaining debt still at 90,000 EUR. For cost reasons, the borrower wants to leave the first-ranking mortgage in the land register and keep the release authorization. The lender, however, wants to secure himself for the maximum amount, i.e. over 90,000 EUR, even though he is in the second rank.
Question: Can the building society assign the mortgage, even though the borrower has the release authorization? Could the lender protect himself against an assignment by obtaining the original release authorization? If not, what options would the lender have to secure himself without the first-ranking mortgage being deleted?
