PROBLEMS OF RECOVERY FOR THE BENEFIT OF THIRD PERSONS FROM MORTGAGED OR PLEDGED PROPERTY

Abstract

Enforcement proceedings shall be effective and all procedural guarantees of the right to a fair trial shall be ensured. This article examines the problems of recovery from property pledged by mortgage or pledged for the benefit of third parties. The Law on Civil Procedure of the Republic of Lithuania allows recovery from such property in enforcement proceedings only when the creditor does not contest this possibility. However, this creditor right is not absolute, and the creditor shall not abuse this this right. This article analyses how the protection of a claim secured by a mortgage or pledge must be reconciled with the goal of an effective enforcement process when there is a need to recover from property secured by a mortgage or pledge. The article assesses the procedural problems that arise for the bailiff in order to perform recovery from such property, the legal status of the mortgagee or pledge creditor, and the rights and obligations in the process of execution. The relevant case law shows that one of the fundamental problems in such collection procedures is the objection of the mortgage or pledge creditor to the recovery of the property pledged to them. It also examines how such consent should be expressed, what legal consequences arise when the creditor opposes such recovery, and in which cases recovery from mortgaged or pledged property is possible without the creditor’s consent.

Keywords

• enforcement
• mortgage
• pledge
• enforcement measures