CAS 4413-10- Mortgage – PERMANENT CIVIL JUDGMENT CAS. Nº 4413- 2010 LIBERTY Lima, – Studocu

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Lima, June twenty-third, two thousand and eleven.- THE PERMANENT CIVIL CHAMBER OF THE SUPREME COURT OF JUSTICE OF THE REPUBLIC; Having seen case number four thousand four hundred thirteen – two thousand ten, in a public hearing on the date and the vote having taken place in accordance with the law, the following sentence is issued. 1.- SUBJECT OF THE APPEAL: This is the appeal filed by the plaintiff Caja Municipal de Ahorro y Crédito de Trujillo S, against the hearing resolution dated July 7, two thousand ten, on pages two hundred and eight, issued by the First Specialized Civil Chamber of the Superior Court of Justice of La Libertad, which confirms the appealed order, dated March thirty-one, two thousand and ten, on pages one hundred and sixty-two, which declares the contradiction founded due to unenforceability of the obligation and the demand is inadmissible; in those followed by the Municipal Savings and Credit Fund of Trujillo S with Ares Contratistas Generales SR, on Guarantee Execution. 2.- GROUNDS ON WHICH THE APPEAL HAS BEEN DECLARED APPROPRIATE: This Supreme Chamber, through a resolution dated April 4, 2011, has qualified the appeal as admissible on the grounds of regulatory infringement that directly affects the decision contained in the resolution. contested; regarding article 689 of the Code of Civil Procedure, for which the appellant presents as grounds: “The Superior Court indicates that there is no relationship between the title and the obligation, but rather between the title and the amount for which execution is requested, which violates the denounced norm and subtly leaves aside the defense argument because, from the beginning, from the very tenor of the claim and in the acquittal of its contradiction it is also clear that, in fact, there is no such relationship, that is not any novelty, since the fact that the obligation is not

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contained in the title of execution, that is, the contract dated May 30, 2008 (the Chamber states that it is now called the executive title) does not mean that the obligation (contained in the Promissory Note) is unenforceable since the parties expressly agreed.” ; and, article 720 of the Code of Civil Procedure, meanwhile, the plaintiff alleges that: “The Superior Chamber has not taken into account that when the last part of Section 1 of the denounced rule indicates that the obligation can be guaranteed in any other executive title , what it does is, precisely, leave open the possibility that in cases like this, that is, like the one that concerns us and is the subject of a trial, the mortgage can guarantee obligations that cannot be expressly contained in the document that contains the mortgage (contingent obligation and/or future obligation). And this is because the parties foresaw it and agreed on it, because the Mortgage Mutual Agent does not know if in the future he could request another loan. 3.- CONSIDERING: FIRST.- That, before resolving the grievances presented, it is pertinent to point out that the merit authorities have issued an inhibitory ruling, since when declaring the inadmissibility of the claim they did not rule on the merits of the litigation. Thus, this Supreme Court considers that in the event of finding reasons that warrant declaring the appeal of cassation founded, the hearing resolution must be declared null and order that a new ruling be issued by the court of first instance in order not to deprive the defendant to exercise his right to defense and double appeal.————————————————– ——————————————— SECOND.- That, Going into resolving the substance of the matter, the mortgage is defined by article 1097 of the Civil Code as the affectation of a property given as collateral for the fulfillment of an obligation, which grants the creditor the rights of pursuit, preference and judicial sale of the property. mortgaged good. Likewise, they constitute legal characteristics of the mortgage: a) It is a real right over a specific asset; b) It is an accessory right

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applicable, as guarantee of which the mortgage constituted was extended up to the sum of one million eight hundred fifty-six thousand seven hundred American dollars, determining a specific date for the mutual payment.———— FOURTH .- That, in this sense, the existence of a single mortgage established on October 19, 2006 on the property described above is verified in order to guarantee an obligation contracted by the executed Ares Contratistas Generales SR, which due to new loans that were granted to it were extended repeatedly, with the last extension being carried out on May 30, two thousand and eight.————————— —————– FIFTH.- That, now, through the nineteenth clause of the Mutual Contract with Mortgage Guarantee dated October nineteen, two thousand and six, clause ninth of the Mortgage Secured Mutual Agreement dated May twenty-four, two thousand and six, fifth clause of the Mortgage Secured Mutual Agreement dated July twenty-five, two thousand seven, fifth clause of the Mortgage Secured Mutual Agreement dated fourteen September two thousand and seven; fifth clause of the Mortgage Guarantee Mutual Contract dated December twenty-seven, two thousand seven and fifth clause of the Mortgage Guarantee Mutual Contract dated December twenty-seven, two thousand seven, the parties agreed that the guarantee offered to the mutual company supports existing or to be acquired obligations, that is, determined or determinable obligations.————————————————- ———— SIXTH.- That, among the types of mortgages that can be constituted by the will of the parties, three types must be distinguished: 1) The Closed Mortgage, which is the one that is constituted in the same title at the time of its subscription and seeks to guarantee several expressly determined obligations; 2) The Security or Open Mortgage (sheet type) whose purpose is to guarantee determinable obligations, that is, future obligations accrued or assumed subsequently, whether direct or indirect; and 3) The Mixed Mortgage, which is established to guarantee not only the obligations determined at the time of signing the title, but also

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also determinable or future obligations not foreseen in advance. Thus, article 1104 of the Civil Code allows guaranteeing a future or eventual obligation through a mortgage.————————————— ——————————– SEVENTH.- That, this being so, the mortgage established on October 19, two thousand and six on the property located on Plot Four, Mansiche Village of the District and Province of Trujillo – Department of La Libertad and later expanded in terms of the amount affected, was established to respond for all debts, direct or indirect, contracted by the executed with the Caja Municipal de Ahorro y Crédito de Trujillo S or by those contracted from now on, that is, we are faced with one of the so-called sheet mortgages, established not only to guarantee specific credits as the executed one mistakenly understands, but also, to generically guarantee all the obligations that could be maintained with the mortgagee, so in the case of this type of mortgage it is not a requirement for its validity that the obligation that is guaranteed be recorded, since as is obvious, obligations are being supported that may be contracted in the future, which cannot be determined at the execution of the mortgage, however, it guarantees their compliance if they occur.—————– ——————————- EIGHTH.- That, therefore, taking into account that in mutual contracts with guarantee mortgage, copulatively there is a main obligation and an accessory right such as the mortgage that guarantee the fulfillment of a debt, the unpaid obligation contained in the promissory note dated November 30, two thousand and seven for the amount of one million ten thousand American dollars maturing on June twenty-eight, two thousand eight, which was renewed for a final debit balance of three hundred two thousand two hundred and sixty-five point ninety-three American dollars, maturing on May twenty-third, two thousand nine, is guaranteed with the amount affected by the extension of the mortgage materialized by Public Deed dated May 30, two thousand and eight, object of execution, reason

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Caja Municipal de Ahorro y Crédito de Trujillo S with Ares Contratistas Generales SR, on execution of guarantee; intervening as speaker, the Supreme Judge, Mr. Walde Jáuregui.- SS. DE VALDIVIA CANO WALDE JAUREGUI VINATEA MEDINA CASTAÑEDA SERRANO MIRANDA MOLINA jla/igp