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The issues raised by the use of subrogation in a refinancing context have been addressed by recent reforms:
- Subrogation ex parte debitoris, with or without the assistance of the creditor, has a complete transfer effect: it transmits the claim and its accessories, the first of which are the security interests;
- In a refinancing context, the new bank has the choice between:
- Subrogation ex parte debitoris, without the priority of the creditor, if the debt is overdue or the term stipulated exclusively in favour of the debtor or, by extension of the latter case, if the debtor is entitled to repay early.
- Subrogation ex parte debitoris, with the priority of the creditor, if the aforementioned conditions are not met.
- The transfer of the mortgage by subrogation makes it possible to cover the new interest and accessories within the limits of the initial registration and the balance of the claim transferred.
In the end, subrogation, in a purely French national context, i.e. with an initial creditor having made its credit agreement subject to French law, and a new creditor subjecting its new loan to French law, no longer raises any difficulty today; subrogation is therefore effective.
In a context where the initial claim is subject to French law, and the new claim to Luxembourg law, the French subrogation ex parte debitoris does not pose any further problem. It is indeed the law of origin of the claim, i.e. French law, which must be consulted to know whether the claim is transmissible. Then, the agreement of the new creditor and the debtor will allow, for a moment after the transfer of the claim, to amend the law applicable to the claim, so that Luxembourg law governs the relations between the new creditor and the debtor.