Análisis jurídico de la hipoteca abierta y cerrada como título de ejecución: ¿Podría volver inaplicable el inciso tercero del art. 351 del COGEP?

Abstract

Abstract: The reforms to the General Organic Code of Processes (COGEP), in force since February 7, 2023, seek to improve the administration of justice and protect the fundamental rights of citizens. These modifications respond to social evolution, technological advances and the need to address legal gaps. A key figure in these reforms is the mortgage, both open and closed, as a title of execution. Historically, the mortgage did not have a specific procedure for its execution, which generated uncertainty. The 2019 reform included the mortgage in the execution titles, but doubts arose about its application. Therefore, in several consultations with the National Court of Justice, it was determined that only the closed mortgage could be considered as an execution title, since it must contain a liquid and pure obligation. However, in practice there are still challenges to foreclosing mortgages, and in some cases, the traditional foreclosure procedure must be followed. This work analyzes the complexities of the open and closed mortgage as an execution title; analyzing that with the latest reforms to COGEP this legal figure must be executed without the need for a prior executive trial; It will also be analyzed that, although it is true that the mortgage has its own procedure, it could render void the third paragraph of Art. 351 of the General Organic Code of Processes.