constitución en mora efectuada de manera auténtica

English translation: notice of default in the correct form

22:10 Jun 29, 2018
Spanish to English translations [PRO]
Law/Patents - Law: Taxation & Customs
Spanish term or phrase: constitución en mora efectuada de manera auténtica
In a legal document from Argentina regarding tax arrears.

Señaló que la jurisprudencia sostuvo que "medio fehaciente" o "constitución en mora efectuada de manera auténtica" . . . no es una carta certificada o documento o expediente administrativo, sino una intimación en legal forma que produzca efectos intimatorios.

TIA
patyjs
Mexico
Local time: 15:28
English translation:notice of default in the correct form
Explanation:
[...] sin que para ello sea necesario que el Proveedor presente un requerimiento de pago, exhortación o constitución en mora.
safescan.com

[...] without any obligation on the part of the Supplier to provide the purchaser with a warning, demand or notice of default.
safescan.com


This appears to be the Judge/tribunal etc. stating that a notive of default has to be in proper form, not a mere letter.

Depending on the specifics, many jurisdictions require a notice of default to contain specific wording

Here is UK example (Consumer Credit Act) where the requirements are strict. If a case comes to Court where an incorrect default notice is produced, the claim is likely to fail.

30/01/2017

Following draft guidance being released by the Financial Conduct Authority (FCA) in October 2016, the FCA has now published finalised guidance to consumer credit firms which confirms its interpretation of the requirement in section 87 of the Consumer Credit Act 1974 (CCA) for the creditor to serve a default notice before enforcing a guarantee or indemnity following a breach of a regulated agreement.

The guidance relates to regulated credit agreements and regulated consumer hire agreements under which an individual (which can be a partnership of two or three people) other than the borrower or hirer provides a guarantee or indemnity (or both). These agreements are referred to in this document as ‘guarantor loans’ and the person providing the guarantee or indemnity is the ‘guarantor’.
The CCA requirements

Any security provided under a regulated agreement must be expressed in writing [1].
Following a breach of the agreement, a default notice must be served on the borrower before the lender can enforce the security [2].
A copy of the default notice must be served on any guarantor [3].
The default notice must meet certain requirements [4] , and must contain specified information, including:
the nature of the alleged breach of the agreement;
if the breach can be remedied, what action is required and the date before which that action should be taken (the date must not be less than 14 days after the notice is served), and
a clear and unambiguous statement of the action the lender intends to take if the breach is not remedied.
The FCA’s view is that ‘enforcement of security’ is not limited to obtaining a court judgment; enforcement can include some forms of ‘self-help’ if the remedy is sufficiently coercive.


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Note added at 13 hrs (2018-06-30 11:28:14 GMT)
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Cruz v. JP Morgan Chase Bank, Nat'l Ass'n, No. C 12-3219 CW (N.D. ...
https://casetext.com/case/cruz-v-jp-morgan-chase-bank-5

Plaintiffs are granted leave to amend to plead prejudice from the incorrect Notice of Default. Plaintiffs are also granted leave to plead that the Trustee's sale ...
Thomas v. Bank of America CA1/2 – CourtListener.com
https://www.courtlistener.com/opinion/3158272/thomas-v-bank-...

25 Nov 2015 - ... to $3,197.70, filed an incorrect notice of default, improperly foreclosed on the property, and provided an incorrect reinstatement calculation.
Selected response from:

AllegroTrans
United Kingdom
Local time: 21:28
Grading comment
Many thanks, AllegroTrans. Most helpful as always.
4 KudoZ points were awarded for this answer



Summary of answers provided
4 +1notice of default in the correct form
AllegroTrans


Discussion entries: 2





  

Answers


13 hrs   confidence: Answerer confidence 4/5Answerer confidence 4/5 peer agreement (net): +1
notice of default in the correct form


Explanation:
[...] sin que para ello sea necesario que el Proveedor presente un requerimiento de pago, exhortación o constitución en mora.
safescan.com

[...] without any obligation on the part of the Supplier to provide the purchaser with a warning, demand or notice of default.
safescan.com


This appears to be the Judge/tribunal etc. stating that a notive of default has to be in proper form, not a mere letter.

Depending on the specifics, many jurisdictions require a notice of default to contain specific wording

Here is UK example (Consumer Credit Act) where the requirements are strict. If a case comes to Court where an incorrect default notice is produced, the claim is likely to fail.

30/01/2017

Following draft guidance being released by the Financial Conduct Authority (FCA) in October 2016, the FCA has now published finalised guidance to consumer credit firms which confirms its interpretation of the requirement in section 87 of the Consumer Credit Act 1974 (CCA) for the creditor to serve a default notice before enforcing a guarantee or indemnity following a breach of a regulated agreement.

The guidance relates to regulated credit agreements and regulated consumer hire agreements under which an individual (which can be a partnership of two or three people) other than the borrower or hirer provides a guarantee or indemnity (or both). These agreements are referred to in this document as ‘guarantor loans’ and the person providing the guarantee or indemnity is the ‘guarantor’.
The CCA requirements

Any security provided under a regulated agreement must be expressed in writing [1].
Following a breach of the agreement, a default notice must be served on the borrower before the lender can enforce the security [2].
A copy of the default notice must be served on any guarantor [3].
The default notice must meet certain requirements [4] , and must contain specified information, including:
the nature of the alleged breach of the agreement;
if the breach can be remedied, what action is required and the date before which that action should be taken (the date must not be less than 14 days after the notice is served), and
a clear and unambiguous statement of the action the lender intends to take if the breach is not remedied.
The FCA’s view is that ‘enforcement of security’ is not limited to obtaining a court judgment; enforcement can include some forms of ‘self-help’ if the remedy is sufficiently coercive.


--------------------------------------------------
Note added at 13 hrs (2018-06-30 11:28:14 GMT)
--------------------------------------------------



Cruz v. JP Morgan Chase Bank, Nat'l Ass'n, No. C 12-3219 CW (N.D. ...
https://casetext.com/case/cruz-v-jp-morgan-chase-bank-5

Plaintiffs are granted leave to amend to plead prejudice from the incorrect Notice of Default. Plaintiffs are also granted leave to plead that the Trustee's sale ...
Thomas v. Bank of America CA1/2 – CourtListener.com
https://www.courtlistener.com/opinion/3158272/thomas-v-bank-...

25 Nov 2015 - ... to $3,197.70, filed an incorrect notice of default, improperly foreclosed on the property, and provided an incorrect reinstatement calculation.

AllegroTrans
United Kingdom
Local time: 21:28
Specializes in field
Native speaker of: Native in EnglishEnglish
PRO pts in category: 61
Grading comment
Many thanks, AllegroTrans. Most helpful as always.

Peer comments on this answer (and responses from the answerer)
agree  patinba
1 day 44 mins
  -> thanks!
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