In Spain, loan and facility agreements are always formalized in notarial instruments (either “escritura” or “póliza”) so that lenders may hold an executive enforcement title (i.e., the loan/facility agreement duly notarised) and, thus, have access to summary enforcement proceedings that shall be resolved within a term much shorter than if they had to claim their credit rights through an ordinary proceeding. Quite often, primary lenders used to obtain from the notary the first copy of the loan/facility agreement issued by the notary for enforcement purposes. According to law, once such copy was issued, obtaining a new copy of the loan agreement for enforcement purposes by the same party could be problematic, since such subsequent copy could only be issued upon a court order or with the consent from the other parties to the loan agreement (sections 517.2.4º of the Civil Procedure Law and 233 of the Notarial Regulation).
This is the reason why most of the loan agreements include a clause by which all parties consent that the lender may obtain further copies of the public document for enforcement purposes. However, when this was not the case (which happened more times than one could reasonably expect, especially in loans granted to individuals or in less sophisticated deals with companies), purchase agreements of loan portfolios included a provision by which the buyer could reverse the acquisition of those loans in respect of which the seller could not provide the buyer with a copy of the loan issued by the notary for enforcement purposes.
Recently, a resolution enacted by the General Directorate for Registries and Notaries – which is binding in the same manner as case law is with respect to courts and judges – has clarified (because it was implied in the applicable laws and regulations, but no public authority had made a pronouncement about it) that when the law requires that a court order or the consent from the other parties to the loan agreement are obtained prior to the issue by a notary of further copies of the loan agreement for enforcement purposes, it does so for cases where it is the same party – who obtained a first copy for enforcement purposes – the one requesting another copy of the agreement for enforcement purposes. Therefore, if pursuant to an acquisition of the loan the new lender is the one requesting from the notary the issue of such a copy, then it shall be entitled to obtain it, since it is a new party with a legitimate interest in having that copy duly issued.
This conclusion seems to be too obvious and to come too late in the eyes of any third party observer but, up until then, acquisition agreements were intensely negotiated by the parties with respect to the delivery of original documentation and the effects of not being able to deliver copies of the loan agreements for enforcement purposes within a certain period of time (the lack of delivery resulting in the categorization of such loans as defective and then their mandatory repurchase by the seller). While we celebrate this outcome, it is a shame that the law makers or the General Directorate did not clarify this matter a long time ago, easing the enforcement of loan agreements in Spain by assignees of the original lenders.