Surely more than one reader is familiar with the mortgage processing procedure followed by BBVA, but in case there is anyone who is not familiar with it, we are going to briefly describe it, as well as its gestation and the framework in which it is based, to then make some kind of critical consideration of it.
On November 5, 2002, a collaboration agreement was signed between the General Council of Notaries (hereinafter CGN) and the Banco de Bilbao Vizcaya Argentaria (hereinafter BBVA), in which both parties, and among other issues, in order to reduce the preparation time of mortgage loan deeds and achieve better customer service, committed to the development of a computer system for the automated processing of the following tasks:
1.- Automatic transmission from BBVA to the Notary of the basic data of the loan and operation that allow the notary to carry out the tasks inherent to its function.
2.- Online monitoring of the instrumental status of the loan by the various parties involved (Notary, bank and borrower).
3.- Definition in the process of a series of milestones or situations that a mortgage loan goes through in its implementation.
For the development of this system, a working group was formed with members of the CGN and the BBBV for the analysis, definition and implementation of the procedures.
¿How does this whole framework work? BBVA, through its offices, when it has to formalize a mortgage, within the scope of the system, sends a telematic communication to the notary assigned to it, which includes a registry note and an appraisal; the notary is responsible for issuing a technical report and if it is in accordance, a day and time is arranged for the signing of the deed.
In the event that the client has requested to grant his deed before a Notary other than the notary who processes the file, he receives a communication, by virtue of which he is informed that, despite the work he performs, another notary will be the one to authorize the deed and charge the fees.
Which Notary is assigned to each BBVA office? Well, the one that BBVA itself determines based on its preferences. The consequence that derives from this whole system is that there is a marketing effort to be chosen as a BBVA Notary, because in the long run it provides an immense volume of work, normally very easy to execute, with benefits far superior to the average of the ordinary documentation of a notary's office, in which the financial institution itself manages the collection of the fees that it has provisioned before the signing, and which are usually included in the amount of the loan. In addition, there is a tendency for bank branches to send documentation, outside the e-notario system, to the same notary office that they have assigned, such as policies and sales of Bank assets, which in the case of BBVA are owned by different companies and to a certain extent it hinders the signing of operations in a Notary other than the one who has been the owner of the file.
All this is my daily experience, which I am sure many notaries can corroborate, but which is also easily verifiable. As an anecdote, I must say that when the system was launched, it was made known by BBVA employees, who were perfectly aware that there would be notaries excluded from the contract in which their entity could be a party, and in the conversations that are usually held with those notaries, who are usually more informed about everything, they always ended up saying the same thing: if the system did not exist, the contracting would be even more concentrated in a few offices.
I have always had some doubts about this e-notary system, as it goes against many different laws and principles, but above all it is based on an agreement of the General Council of Notaries.
As a purely illustrative example, I would say:
1.- It violates two basic principles of notarial legislation, such as the principle of equality of all notaries, which correctly interpreted, is a principle of equal opportunities for the development of the profession, since in this way there are notaries who are practically excluded from access to certain operations; and on the other hand, the principle of free choice of notary, which should not remain an empty principle, or a mere declaration of intentions.
2.- A system is used that is paid for by all notaries, but whose profitability does not affect all of them.
3.- It goes against competition defence legislation.
4.- It goes against the recently approved notarial codes of ethics, both internal and international.
5.- It raises doubts about the proper independence of Notaries, which has been the basic argument used by the Registry Corporation, to gradually gain ground, on the basis that there is no independence when the Notary is chosen by the financial institution and not by the consumers.
It can be said that the system itself is not bad, but the way it is developed is, but to me that argument seems to be putting a blindfold on to avoid seeing reality. It would be very interesting to do an analysis of the statistics divided by cities and how the number of loans authorized by Notary, to verify that it may have very little relation to the distribution of documents in the free choice of notary that is fulfilled more frequently.
In any case, I believe that this way of acting generates perverse effects both for Notaries, for consumers, and for BBVA itself. Consumers are deprived of advice that is not imposed and are victims of higher prices, as they become a captive clientele. Notaries adhering to the system are at fault, both in terms of regulations and ethics, for not abstaining from carrying out actions that impede the free choice of notary. And BBVA itself is at risk of enormous reputational damage. Does anyone believe that so many financial transactions would have been cancelled if the bank had been able to demonstrate that all clients had received correct pre-contractual information in a timely manner through a professional chosen by them?
Can anything be done about this whole issue? Absolutely yes, because I can't think of any other way. But the whole issue of notarial competence must be reconsidered, which must be a means and not an end in itself..
