Realizacja praw z hipoteki po wykreśleniu dłużnika z Krajowego Rejestru Sądowego

In the light of the provisions of the National Court Register Act (NCRA), the State Treasury becomes the universal legal successor of entities deleted from the National Court Register (NCR) and is liable for the debts of those entities from the assets they left behind. The principle of succession adopted by the Polish legislator should serve to protect the creditors of entities deleted from the NCR, as their claims should continue, albeit against a new debtor - the State Treasury. The exercise of securities of an accessory nature established for the benefit of those creditors should not, therefore, give rise to any dogmatic difficulties, even after striking off the debtor from the NCR. This is because since the debtor’s obligations are continued, so are the accessory securities, and mortgage is considered one of them under Polish law. At the same time, however, the NCRA also provides that all claims of creditors of entities struck off the NCR expire one year after the date of striking off, unless before the lapse of that period the creditor pursues those claims against the State Treasury (before a court, or by initiating enforcement proceedings if the creditor already had an enforcement title against the debtor struck off the NCR). The expiry of the debt entails the expiry of accessory securities, and therefore of the mortgage. The study analyses the legal remedies that mortgage holders can use to counteract the expiry of the mortgage with the expiry of the aforementioned one-year period. It appears that serious difficulties in the exercise of rights from a mortgage established on a third party’s immovable property may be caused by the statute of limitations on the principal claim, even though, under mortgage legislation, the statute of limitations on the principal claim does not affect the creditor’s right to obtain satisfaction from the mortgaged property. The paper also draws attention to the more general problem of exercising rights from a mortgage established on immovable property of a third party in various cases in which creditors cannot obtain satisfaction of their claims from personally liable debtors due to their lack of assets, as striking off the debtor from the NCR is only one of such cases. It turns out that in Polish law the consequences of such situations for the mortgage holder can be very divergent and there is no uniform approach of the legislator to this problem. The author tries to look for such a uniform solution.