In brief: The Lisbon Court of Appeal upheld the striking out of an enforcement brought by a securitisation company on the basis of a 2008 contract in default since 2011. The argument that the statutory arrears procedure did not apply to defaults predating 2013 failed for a reason drawn from the law of obligations: the contract was never formally terminated, so it still subsisted on 1 January 2013, and the transitional rule made entry into the procedure mandatory. The point matters to every legacy portfolio that has circulated among banks, funds and assignees.
The facts
A credit securitisation company enforced against a debtor for 67,062.92 euros, on the basis of a credit facility entered into in 2008 and in default since November 2011. On opposition, the debtor invoked the failure to enter the Out-of-Court Procedure for the Regularisation of Default Situations. The claimant replied that the regime was not retroactive and did not cover defaults predating 1 January 2013, the date Decree-Law 227/2012 entered into force.
Why the claimant’s answer does not hold
The court did not discuss retroactivity. It took an earlier route: asking whether, on 1 January 2013, the contract still existed. It did. The early maturity of instalments, under article 781 of the Civil Code or an equivalent contractual clause, is a power of the creditor that depends on a demand and does not operate automatically by the mere fact of default. And termination of the contract is a unilateral right requiring a declaration to be received, that is, a declaration addressed to the debtor and received by him. Neither was done.
The consequence
The contract subsisting at that date, the transitional rule in article 39 of Decree-Law 227/2012 applies and entry into the procedure becomes mandatory. There having been none, bringing enforcement is an inadmissible exercise of the right of action, constituting an unnamed dilatory plea, with dismissal of the instance. The enforcement was struck out.
Why this reaches many cases
There is a widespread practice of treating as closed a contract that merely stopped being paid. The loan is written off, provisioned, assigned, securitised, and passes from hand to hand labelled as matured. But matured is not the same as terminated, and the difference is not one of vocabulary: termination requires an act of the creditor, with a form and an addressee, and that act is either in the file or it is not. In portfolios built up fifteen years ago, with several transfers along the way, it frequently is not.
From the debtor’s side
Anyone facing enforcement on an old credit agreement has here a concrete line of defence, verifiable in documents. The question to ask is whether they ever received a communication declaring the contract terminated — not a demand for payment, not a reminder, but a declaration of termination — and on what date. If they did not, and the contract subsisted on 1 January 2013, the failure to enter the procedure is a ground of opposition.
What to do in practice
For portfolio holders: before enforcing, reconstruct the documentary chain and locate the declaration of termination, with proof of dispatch and receipt. If there is none, assess whether the contract subsisted at the date the regime entered into force and, if so, carry out the entry into the procedure before any judicial step. For those facing enforcement: request a full copy of the credit file, look for the declaration of termination and its date, and compare it with the date of default alleged in the enforcement application. Lisbon Court of Appeal, case 9943/24.5T8ALM.L1-7, 08-09-2026, reporting judge Rui Manuel Pinheiro de Oliveira.
The full newsletter
This note forms part of the edition of 18 September 2026 of the firm’s biweekly newsletter, with thirty-two items in Portuguese and English. The full document, on letterhead, is available here.
This note is provided for information purposes only and does not constitute legal advice. Concrete solutions depend on the facts of each case and on the regime applicable at the time. For specific questions, please consult a lawyer.