Exploring Proportionality in Mortgage Enforcement Proceedings in The Netherlands: Diverse Perspectives on Balancing Debtor Protection and Legal Remedies

Abstract In this article, we analyze to what extent the mortgage debtor is protected by international and EU law against the right of parate executie by a mortgage lender. To this end, we first discuss the protection of mortgage debtors by Article 8 ECHR by critically examining the reasoning of the ECtHR case law concerning mortgage enforcement. Here, we also analyze case law from the Netherlands, where a debtor can always start a procedure for a proportionality assessment. We show that these procedures are rarely successful, and that personal circumstances seldom prevail in these procedures. Then, we call for action on the side of the government, to offer alternative housing to debtors in need, and to take into account personal circumstances of the debtor. Then, we discuss international and EU legislation and regulation on the protection of mortgage debtors. Although these regulations seem to offer better protection, we conclude by questioning whether this regime offers effective substantive protection to debtors experiencing payment difficulties and open a discussion about a route towards more substantive protection.