The open mortgage as an enforceable title in ecuadorian civil procedural law

Abstract

In Ecuadorian law, the open mortgage is a legal instrument widely used because its flexibility allows for securing future or indeterminate obligations. However, its characteristics call into question its suitability as an enforcement title. In this context, the central research question of the study has been: What are the elements that prevent the open mortgage from continuing to be considered an enforcement title within Ecuadorian civil procedural law? The objective is to determine the legal viability of maintaining it as an enforcement title, despite the reform to number 10 of article 363 of the Organic General Code of Processes (COGEP) following the enactment of the Organic Law for Digital and Audiovisual Transformation on February 7, 2023. The axes of analysis deployed are: 1) mortgage: definition, types, and characteristic features; 2) enforcement titles: defining elements; 3) modalities for the enforcement of the open mortgage; 4) legal framework and juridical considerations. The methodological approach is qualitative, incorporating normative, doctrinal, and jurisprudential review through exegetical and dogmatic methods. The result indicates that the open mortgage should not be considered an enforcement title, since, unlike other titles provided for in the COGEP, it does not meet requirements such as the exact determination and the immediate enforceability of the obligation, which renders it unenforceable. In conclusion, the legal uncertainty derived from its very nature prevents its recognition as an enforcement title within the current regulatory framework.