Assignment of mortgage
July 8, 2010 | 50,00 EUR | answered by Dr. Dr. Danjel-Philippe Newerla
On the private property of my wife and me, a mortgage of the savings bank for a business loan is registered in the 5th and 6th rank. When the company went into insolvency in 2005, it was agreed with the bank that a relative of ours would pay an amount of 75,000 euros to the bank and in return, she would be assigned this mortgage (we wanted to avoid the bank auctioning our private house for business debts). This assignment then took place - however, only the letter to my relative is available, the mortgage assignment in the land register form is no longer in her documents. Now we want to repay the loan and the mortgage should either be deleted by us or assigned to us.
I have been in personal insolvency since 2006 - meaning my wife will repay the loan and should also receive the assignment.
Question: Can this be done without the document?
How should the whole thing be processed?
Is there a possibility of a replacement?
Dear inquiring party,
Thank you for your inquiry.
I would like to address your question as follows:
Regarding 1.) Can this be done without the document?
The question here is whether the mortgage has actually been effectively assigned. For this, an assignment declaration is required, which does not necessarily have to be in notarial form.
Furthermore, either the mortgage certificate (in the case of a so-called certificate mortgage or land charge mortgage) must have been handed over, or the transfer of the mortgage in the land register (in the case of a so-called book mortgage) must have been registered.
This must be verified. If there is no transfer of the mortgage recorded in the land register, the assignment to your acquaintance can only be effective through physical handover.
You should then ask your acquaintance if they have the mortgage certificate (this should not be confused with the assignment declaration, which your acquaintance cannot find). If they cannot find this either, they should inquire at the bank. If an assignment has indeed taken place, they have a corresponding right to information and accountability against the bank.
By following these steps, you will have certainty as to whether the mortgage has been effectively assigned or is still with the bank. Depending on the outcome, you would need to arrange for the mortgage to be assigned to you by payment.
Regarding 2.) How should the whole process be handled?
I have already outlined the procedure for you above. It would be necessary to first verify who the holder of the mortgage is. Then, you would need to make the appropriate payments.
After full payment, you would also have a right under the so-called security agreement (this is an informal contract that is concluded simultaneously with the creation of the mortgage according to case law, even if the parties to the contract are not aware of it) to receive the mortgage certificate (in the case of a certificate mortgage) or approval for the deletion of the mortgage in the land register (in the case of a book mortgage).
Finally, the mortgage would need to be discharged from the land register.
Regarding 3.) Is there a possibility of substitution?
Unfortunately, I am not entirely clear on what you mean by substitution. If you mean another way to have the mortgage deleted, then there is generally no such option. However, if you mean something else, please let me know so that I can address it within the scope of the free follow-up option.
I hope I have answered your questions to your satisfaction and wish you a pleasant Thursday afternoon!
If you have any questions, please feel free to ask.
Sincerely,
Dipl.-Jur. Danjel-Philippe Newerla, Attorney at Law
Heilsbergerstr. 16
27580 Bremerhaven
kanzlei.newerla@web.de
Tel. 0471/3088132
Fax: 0471/57774
