Your mortgage is being enforced: opposing on an unfair term
Last updated 2026-09-01 · Reviewed by Jaime Piñeira Pardo, registered with the ICAM bar, no. 138826
The short answer
Once the order opening enforcement is served, there are ten days to bring an opposition. The fourth ground of article 695.1 of the Civil Procedure Act allows you to plead the unfair nature of the term that founds the enforcement or that fixed the sum claimed. Once it is brought, article 695.2 requires the enforcement to be suspended and the parties summoned to a hearing.
You stopped paying the mortgage a year ago, while on sick leave. The bank did not claim the arrears: it declared the whole loan due and now demands the remaining one hundred and forty thousand euros in one go, plus default interest at twelve per cent. A court officer hands you an order opening enforcement against your home and a demand for payment. The envelope holds many pages and none of them says, in large letters, that you have ten days to react and that afterwards you can plead nothing.
The case, in five lines
- What is brought
- Opposition to mortgage enforcement on the fourth ground of article 695.1 of the Civil Procedure Act, the unfair nature of the term that founds the enforcement or that fixed the sum claimed.
- Before which court
- The Civil section of the Tribunal de Instancia (the first instance court) that issued the general execution order, under article 695.2, and the Audiencia Provincial (the provincial appeal court) on the appeal allowed by article 695.4.
- Deadline
- Ten days from service of the order opening enforcement. The period is preclusive: once it passes, the enforcement moves on towards the auction and the debtor loses the chance to plead unfairness within these proceedings.
- Who can bring it
- The party against whom enforcement runs: the mortgage debtor and any third party mortgagor who put up the property. Also a guarantor sued, insofar as the disputed term fixes the sum claimed from them.
- Financial risk
- Opposition suspends the enforcement, but if it is dismissed the proceedings resume with the accrued interest and the costs of that incident. Moreover, under article 695.4, outside the situations listed there the orders deciding opposition admit no appeal at all.
The list of grounds is closed and the fourth is the one that opens the case
Article 695.1 of the Civil Procedure Act begins by saying that in these proceedings opposition by the debtor is admitted only on the grounds it lists. There are four: extinction of the security or of the secured obligation, error in fixing the sum due on closed accounts, the movable asset being subject to an earlier charge, and the unfair nature of a contractual term.
The fourth ground is drafted with two distinct situations and they are worth reading separately: the unfair nature of a contractual term that founds the enforcement, or that fixed the sum claimed. The first reaches the early termination clause, which is what allows the whole capital to be demanded at once. The second reaches default interest and the fees that swell the final figure.
Outside that list there is no room here to argue that the debt is unjust, that the bank refused to negotiate a way out or that the property is undervalued. That is why the opposition is not written by telling the story of the default: it is written by identifying the specific term in the deed, setting it out and explaining why it falls within the fourth ground.
Bringing the opposition halts the auction, and that is the first objective
Article 695.2 is categorical: once opposition is brought, the court clerk shall suspend the enforcement and summon the parties to a hearing before the court that issued the general execution order. Fifteen days must elapse between the summons and the hearing. The suspension is not discretionary and does not depend on the ground looking solid at first sight.
At that hearing the court will hear the parties, admit the documents produced and rule by order within two days. It is a short and heavily documentary hearing, so everything to be relied on must already be produced or requested in the written opposition, without counting on explaining it orally.
If the term founds the enforcement, the enforcement is dropped entirely
Article 695.3 draws two outcomes. If the fourth ground succeeds, the enforcement is dropped where the contractual term founds the enforcement. Otherwise, the enforcement continues with the unfair term disapplied. The difference is enormous: in the first case the proceedings end, in the second they go on but with a cleaned up account.
The pleading must therefore attack first the term that sustains the order opening enforcement, typically the early termination clause, and only afterwards those that inflate the figure claimed. An order that merely strikes out the default interest leaves the home heading to auction for a slightly smaller sum, whereas an order holding early termination unfair closes the whole proceedings and the property stays where it is.
The same article adds that the order shall rule expressly on the unfair nature of the terms examined and that, once final, that ruling has the force of res judicata. This is an advantage and also a warning: what is decided here binds later on, so the opposition allows no provisional or improvised approach.
Early termination is no longer what your 2007 deed said it was
Article 693.1 allows these proceedings where instalments of capital or interest go unpaid, if at least three monthly instalments fall due without the debtor meeting the obligation, or a number of instalments amounting to a breach of at least three months, and it requires this to be recorded in the deed and in the register entry.
Article 693.2 is what decides most of these cases today. It says the whole outstanding debt may be claimed on the terms agreed in the deed, but adds that where the loan was taken by a natural person and secured by a mortgage over a dwelling, or aimed at acquiring residential property, the governing rules are article 24 of Law 5/2019 and, where applicable, article 129 bis of the Mortgage Act.
That cross reference is the key to the pleading: the clause your older deed contained, allowing termination on one or two missed instalments, can no longer simply be applied to a loan of that kind. Checking whether enforcement was opened in line with that statutory regime, rather than with the wording of a deed from fifteen years ago, is the first review made of the case.
If it is your habitual home, you can free it even against the bank's will
Article 693.3 provides that, before the auction closes, the debtor may free the asset by depositing the exact sum of principal and interest due on the date the claim was brought, increased by the instalments and default interest arising during the proceedings that remain unpaid in whole or in part. The whole loan need not be paid, only the arrears.
The same paragraph adds a rule of its own for the home: if the mortgaged asset is the habitual residence, the debtor may free it even without the creditor's consent. And it governs repeating that power, since once an asset has been freed a first time it may be freed again provided at least three years elapse between the release and the new demand for payment, judicial or out of court.
Once payment is made on those terms, costs are taxed on the amount of the arrears paid, with the cap set by article 575.1 bis, and once they are met the court clerk issues a decree freeing the asset and declaring the proceedings ended. The same applies where a third party pays with the consent of the creditor pursuing enforcement.
How we run the case, step by step
- 1
We date the service on the very day it arrives
We record the exact date of the order opening enforcement and of the demand for payment, because the ten day period runs from there and does not reopen. All the later work is organised backwards from that deadline.
- 2
We examine the deed clause by clause
We look for the early termination clause, the default interest clause and any arrears handling fees. Each is measured against what article 693 requires and against the account the bank has produced with its claim.
- 3
We audit the bank's calculation of the debt
We check how many instalments were unpaid when the account was closed, what interest has been capitalised and what fees have been added. That audit produces the part of the pleading attacking the sum claimed.
- 4
We bring the opposition within the ten days
The pleading rests on the fourth ground of article 695.1, attacks first the term that founds the enforcement and then those fixing the sum, and attaches all the documentary evidence. Once it is in, the enforcement is suspended.
- 5
We attend the hearing and appeal where appropriate
We argue the opposition at the hearing under article 695.2. An appeal lies against the order dropping the enforcement, disapplying an unfair term or dismissing opposition on the fourth ground, under article 695.4.
- 6
We weigh freeing the property as an alternative
If the arrears can be met, we calculate the deposit under article 693.3 before the auction closes. Where the property is the habitual home, that release does not require the creditor's consent.
The evidence that decides the case
- The mortgage loan deed, with the early termination clause set out word for word.
- The balance certificate and the account produced by the bank, which show what interest and fees have been included.
- The amortisation schedule and the receipts, to establish how many instalments were truly unpaid when the account was closed.
- The municipal registration certificate and utility bills in your name, which establish that the property is your habitual home.
- The land registry extract, to check what was recorded in the entry regarding early termination.
- The record of service of the order opening enforcement, which fixes the starting day of the ten day period.
What closes the door
- Letting the ten days pass while waiting to negotiate with the bank. The period is preclusive and an open negotiation does not stop it: the enforcement moves towards the auction while you talk.
- Putting in an account of personal circumstances instead of a legal pleading. Article 695.1 closes the list of grounds and only what fits within them is admitted.
- Attacking only the default interest. If that alone succeeds, article 695.3 requires the enforcement to continue with the term disapplied and the home still goes to auction.
- Signing a variation or handing the property over without analysing the case. Acknowledging the balance calculated by the bank neutralises the grounds of opposition the deed contained.
- Depositing an approximate sum to free the property. Article 693.3 requires the exact amount due plus the instalments and interest arising during the proceedings.
The law that applies
- Art. 695.1 LEC. Sets out an exhaustive list of grounds of opposition in mortgage enforcement: extinction of the security or the secured obligation evidenced by a registry certificate or deed, error in fixing the sum due on closing an account, the movable asset being subject to an earlier registered charge, and the unfair nature of a term that founds the enforcement or that fixed the sum claimed. BOE-A-2000-323
- Art. 695.2 LEC. Once opposition is brought, the court clerk suspends the enforcement and summons the parties to a hearing before the court that issued the general execution order, with fifteen days from the summons. At that hearing the court hears the parties, admits the documents produced and rules by order within two days. BOE-A-2000-323
- Art. 695.3 y 695.4 LEC. Where the fourth ground succeeds, the enforcement is dropped if the term founds it and otherwise continues with the term disapplied; the order rules expressly on unfairness and, once final, has the force of res judicata. An appeal lies against the order dropping the enforcement, disapplying the term or dismissing opposition on that ground, and outside those cases no appeal is available. BOE-A-2000-323
- Art. 693.1 y 693.2 LEC. Allows these proceedings where at least three monthly instalments fall unpaid or a number of instalments equal to three months of breach, as recorded by the notary in the deed and by the registrar in the entry. To claim the whole outstanding debt in loans taken by natural persons secured over a dwelling or aimed at residential property, it refers to article 24 of Law 5/2019 and article 129 bis of the Mortgage Act. BOE-A-2000-323
- Art. 693.3 LEC. Allows the debtor to free the asset before the auction closes by depositing the exact amount of principal and interest due on the date of the claim, plus instalments and default interest left unpaid during the proceedings. If the asset is the habitual home, the release does not require the creditor's consent, and it may be repeated provided at least three years elapse. BOE-A-2000-323
Each article checked against the consolidated text published in the BOE (the Spanish official gazette).
Frequently asked questions
Can I oppose if I genuinely did stop paying?
Yes. The fourth ground of article 695.1 does not require you to deny the default: what is pleaded is the unfair nature of the term that founds the enforcement or that fixed the sum claimed. Admitting the arrears and arguing at the same time that the bank could not accelerate the whole loan are perfectly compatible in the same pleading.
Does the auction stop when the opposition is brought?
Yes. Article 695.2 requires that, once opposition is brought, the court clerk suspend the enforcement and summon the parties to a hearing before the court that issued the general execution order, with fifteen days from the summons. The suspension does not depend on the ground being considered well founded in advance.
I have let the ten days pass. Is there nothing left to do?
The situation becomes much harder, because the opposition period is preclusive and the enforcement continues. Other routes remain apart from this opposition, such as freeing the asset under article 693.3 by depositing the arrears before the auction closes, which for a habitual home does not require the creditor's consent. The exact stage of the proceedings has to be examined.
How many missed instalments are needed before enforcement starts?
Article 693.1 speaks of at least three monthly instalments, or a number of instalments equal to three months of breach, to start these proceedings. But to claim the whole outstanding debt at once in a loan taken by a natural person over a dwelling, article 693.2 refers to article 24 of Law 5/2019 and article 129 bis of the Mortgage Act, which set that regime.
If I win the opposition, do I lose the house anyway?
It depends on which term falls. Article 695.3 requires the enforcement to be dropped where the unfair term founds the enforcement, and in that case the proceedings end and the home is not auctioned. If the term only fixed the sum claimed, the enforcement continues with that term disapplied and for a smaller amount.
This guide explains how the action works in general. It does not replace the study of your own case: deadlines depend on when things happened and on what you have done since.