When a person decides to take out a loan for housing, he is primarily concerned with the size of the interest rate and the quality of the property. However, there are pitfalls in mortgage lending, due to which the agreement between the bank and the client may be invalidated. In what cases is it realistic to challenge a mortgage, and what does this threaten the buyer of real estate with? There are many options, we will analyze the main ones.

When Can You Dispute a Mortgage?

Situations in which compliance with a mortgage agreement is at risk can be divided into three categories:

• illegal actions of the bank;
• the borrower uses mortgaged housing for other purposes or has stopped paying the bank;
• problems with the object - contesting the sale, redevelopment of housing.

If the bank turned out to be unreliable

In relation to the mortgage borrower, the bank is a seller of services. The borrower is a consumer, and he must know his rights. The relationship between the bank and the borrower is governed by the norms of Russian legislation: the Criminal Code of the Russian Federation, the Federal Law "On Mortgage", the Law on the Protection of Consumer Rights, the Civil Code of the Russian Federation, the Federal Law "On Banks". When a bank violates consumer rights, you can challenge the loan agreement through the Central Bank and Rospotrebnadzor.

Dispute a mortgage agreement in an unreliable bank

The creditor violates the rights of the consumer in the following cases:

• prohibition on early repayment of the loan in the contract. After signing such an agreement, it can be challenged in court;
• in case of delay in payment, the bank automatically issues a new loan to the consumer without his consent and charges "compound interest". The issue is resolved through the court;
• creditor bankruptcy. In case of bankruptcy, the bank sells debt obligations of borrowers to third parties. Theoretically, this is normal. But until the loan agreement is reissued to a new lender, you need to figure out where to pay the money. Otherwise, the borrower will have to repay huge fines.

Practice shows that commercial credit organizations are more likely to try to deceive customers than state ones. Large banks value the license and are not ready to risk their billions for the sake of several million rubles.

If the borrower breaches the contract

If the mortgage lender has no money to repay the loan, the bank may unilaterally demand termination of the contract. When the payer himself does not take steps to preserve the property, the mortgaged apartment goes under the hammer for debts. The downside of this situation is that after the sale of real estate, the borrower will most likely remain indebted to the bank. The optimal solution is an independent sale at a market price, on-lending on acceptable terms or a credit holiday. No matter how difficult the situation, banks prefer to meet the needs of trusted clients.

The bankruptcy of the borrower is another reason to challenge the mortgage. What should be the position of the mortgagee? A person who owes the bank more than half a million rubles has the right to file a claim for his own bankruptcy. The delay must be at least 3 months. If the borrower is successfully declared bankrupt, the financial manager appointed by the court will resolve all issues with creditors. The disadvantage of the bankruptcy of the borrower is that within three years after going through this procedure, a person will not be able to get a loan from any bank.

According to the loan agreement, the loan recipient cannot sell, donate, exchange or rent mortgaged housing without the knowledge of the bank. If the transactions of purchase and sale, exchange and donation simply do not go through Rosreestr, then everything is more interesting with rent. Many Russians buy apartments on credit in order to rent out mortgaged housing, bypassing the rules. Theoretically, bank employees can visit the apartment to check. But if a person regularly pays, this may not happen. If the fact of renting out housing to third parties becomes known to the bank, the lender will challenge the mortgage agreement. Many owners of mortgage housing look at this ban through their fingers.

Problems with the object of collateral

The borrower's nightmare is the recognition of the sale and purchase agreement as invalid. As a result, the bank will challenge the loan agreement. This issue occurs with aftermarket items in the following cases:

• the seller is recognized as incompetent at the time of the transaction;
• the sale and purchase agreement violates the law;
• the court is filed by third parties registered in the apartment;
• suddenly appeared heirs declare the rights to housing;
• the contract of sale was signed by a child under 14 years of age without the consent of the guardianship authorities or parents;
• the transaction is fictitious.

If the transaction is challenged and declared invalid by the court, the borrower will lose the property and at the same time remain indebted to the bank. Title insurance saves you from this situation. It will not return the apartment back, but it will eliminate the need to pay debts for lost property in this case.

Difficulties with the execution of the contract may arise if there has been a redevelopment of the apartment in the mortgage. For example, citizen Ivanov is going to buy an apartment on the secondary market. In the selected room, one of the interior partitions, which is not a load-bearing wall, has been demolished. The sellers did not legalize this redevelopment. The bank demands to legalize redevelopment. This can be done in several stages. First you need to contact the ZHKO, then the BTI, then the local architectural department. Another option - the borrower signs an additional agreement with the bank, according to which the loan recipient is obliged to restore "everything as it was" within six months. Conclusion: if you have chosen an apartment with an illegal layout, you will have to seek a compromise with the bank and with the registration authorities. Otherwise, the bank may challenge the loan agreement.

There are many cases in which you can challenge a mortgage loan agreement. How not to find yourself in an unpleasant situation due to problems with the apartment or the dishonesty of the bank? Use the services of a reliable mortgage broker. Employees of the "Ipotekar" will help you not only to get a loan for the purchase of housing, but also to avoid the pitfalls in the transaction.

Case No. 2-2719/2017

DECISION

IN THE NAME OF THE RUSSIAN FEDERATION

Traktorozavodsky District Court of Volgograd

composed of:

presiding judge Malysheva E.A.,

under the secretary Likhach O.V.,

with:

the representative of the plaintiff Zakharova T.A. - Parshina E.A.,

the representative of the defendant LLC "Money in favor" - Rytikova A.Yu.,

having considered in an open court session on October 05, 2017 in the city of Volgograd a civil case on the claim of Zakharova Galina Alexandrovna against the limited liability company "MONEY IN POLZU" to invalidate the mortgage agreement (mortgage of real estate),

SET UP:

The subject of the dispute is a 1/2 share in a two-room apartment. The specified DATA WITHDRAWAL share in the apartment is restricted in the form of a mortgage. The owner of another DATA WITHDRAWAL share of this apartment is Zakharov D.Yu.

Plaintiff Zakharova T.A. and 3rd person Zakharov D.Yu. among themselves DATA EXTRACTED.

Zakharova G.A. applied to the court with the said claim, in which she asks to invalidate the mortgage contract for the indicated 1/2 share of the apartment, concluded between her and LLC MFO "MONEY IN POLZU" (subsequently renamed LLC "Money in favor"). In support of her claims, she indicated that on October 4, 2016 she borrowed 250,000 rubles from the defendant, about which she entered into a loan agreement with the defendant dated 04.10.2016. To secure the repayment of this loan, on the same day, she entered into an agreement with the defendant to pledge the share of the apartment belonging to her DATA WITHDRAWAL No. DATA WITHDRAWAL on the street. ADDRESS WITHDRAWN, which was registered in the state register of real estate. Zakharova G.A. considers that the contested pledge agreement was concluded in violation of the law, that is, without observing the notarial form of this agreement, since the specified apartment is in the common shared ownership of the plaintiff and her son according to DATA WITHDRAWAL shares from each. Therefore, the plaintiff asks to recognize the specified contract of pledge of her share in the apartment as invalid.

Plaintiff Zakharova T.A. did not appear at the hearing. About the day, place and time of the hearing of the case duly notified. She requested that the case be considered in her absence.

The representative of the plaintiff Zakharova T.A. supported the claims at the hearing.

The representative of the defendant, DENGI V POLZU LLC, did not recognize the claim at the court session, he explained to the court that in order to conclude a pledge agreement for real estate in common shared ownership, notarization of this agreement and the consent of the other co-owners of the residential premises are not required.

third party Zakharov D.Yew. did not appear at the hearing. He was duly notified of the day, place and time of the hearing, the reasons for his failure to appear in court are not known.

The court, after hearing the representative of the plaintiff, the representative of the defendant, having examined the materials of the case, finds the claims unfounded and not subject to satisfaction on the following grounds.

According to Art. 1 of the Federal Law No. 102 “On Mortgage” under an agreement on pledge of real estate (mortgage agreement), one party - the pledgee, who is a creditor under an obligation secured by a mortgage, has the right to receive satisfaction of his monetary claims against the debtor under this obligation from the value of the pledged real estate of the other parties - the mortgagor preferentially over other creditors of the mortgagor, with exceptions established by federal law. To a pledge of immovable property arising on the basis of a federal law upon the occurrence of the circumstances specified therein (hereinafter referred to as a mortgage by virtue of law), the rules on a pledge arising by virtue of a mortgage agreement shall be applied accordingly, unless otherwise established by federal law.

In accordance with Art. 2 of the Federal Law of July 16, 1998 N 102-FZ “On Mortgage (Pledge of Real Estate)”, a mortgage can be established to secure an obligation under a loan agreement.

By virtue of h. 1 Article. 5 of the Federal Law “On Mortgage (Pledge of Real Estate)”, under a mortgage agreement, real estate specified in paragraph 1 of Art. , the rights to which are registered in the manner established for state registration of rights to real estate and transactions with it, including 3) residential buildings, apartments and parts of residential buildings and apartments, consisting of one or more isolated rooms.

Part 2 of Art. 7 of the Federal Law "On Mortgage (Pledge of Real Estate)" provides that a participant in common shared ownership may pledge his share in the right to common property without the consent of other owners.

If, at the request of the pledgee, foreclosure is applied to this share during its sale, the rules of Article 250 both on the pre-emptive right of purchase belonging to the other owners and on foreclosure on a share in the right of common ownership are applied.

On the basis of Part 1 of Article 10 of the Federal Law “On Mortgage (Pledge of Real Estate)” (as amended in force at the time of the disputed relationship), a mortgage agreement is concluded in writing by drawing up one document signed by the parties and is subject to state registration. The mortgage agreement is considered concluded and comes into force from the moment of its state registration.

I DECIDED

In the claim of Zakharova Galina Alexandrovna against the limited liability company "MONEY IN POLZU" on the invalidation of the mortgage agreement (mortgage of real estate), concluded on October 4, 2016 between the limited liability company "MONEY IN POLZU" and Zakharova Galina Aleksandrovna - to refuse.

The decision can be appealed on appeal to the Volgograd Regional Court within one month through the Traktorozavodskiy District Court of Volgograd.

FULL NAME5 went to court with this claim, indicating that the DATE WITHDRAWAL concluded with the defendant an agreement for participation in the shared construction of an MKD DATA WITHDRAWAL at the ADDRESS WITHDRAWN, under the terms of which the plaintiff undertook to pay the cost of a one-room apartment in times ...

The Inspectorate of State Housing Supervision of the Volgograd Region appealed to the Interdepartmental Commission for assessing the state of residential premises of the municipal housing stock and apartment buildings on the territory of the Traktorozavodsky district of Volgograd...

5/5 (2)

The expediency of concluding a contract

The conclusion of a pledge agreement should be based on the principles of economic expediency, and the parties should not have selfish motives when signing the agreement, including the goal of causing property damage to third parties.

As for the relations that arise between banking organizations and other participants, the drawing up and signing of a pledge agreement is one of the criteria for ensuring the fulfillment of obligations by the borrower.

If the insolvency procedure of a person is initiated, then other creditors try in every possible way to challenge the existing pledge agreements. However, the judiciary recognizes this right as futile if it is established that the borrower, concluding such an agreement, did not try to evade liability to other citizens and organizations.

The judge is also guided by evidence that indicates that at the time of drawing up the pledge document, the borrower showed no signs of insolvency.

That is, if there was an economic feasibility of concluding a pledge agreement, and the agreement did not carry the threat of harm to other creditors, then the court will rule in favor of the one who is declared bankrupt under the appropriate procedure.

If the borrower was fully solvent at the time of signing the pledge agreement, then this is a clear sign that the agreement was drawn up without the intention of causing harm to third parties, and it is recognized as valid by law.

Ownership of the mortgaged property

An agreement on pledge can be concluded only with the owner of the thing that is transferred to the pledgee - this is a general rule established by civil law.

The contract is often recognized as invalid in the case when the pledgor transferred to the pledgee the property to which he did not have the right of ownership.

Courts in their practice often encounter situations where pledgees are bona fide persons who have no idea that the pledgor, by transferring the thing, violated someone's interests. The same applies to the owners of pledged things.

Civil law protects the rights of bona fide pledgees, where the new owner of the thing is the pledgor by virtue of the law (clause 2, article 335 of the Civil Code of the Russian Federation).

The provisions of this article contain a reference to the unfair taking of another's property. For example, if the thing was stolen from the previous owner or left his possession due to illegal actions, then the above rules are not applicable.

In judicial practice, there are cases when the pledgee was in good faith from the point of view of the law, and the new owners were not aware of the signing of the pledge agreement, the subject of which was already their thing by right.

The courts can also take the side of bona fide new property owners, regardless of the fact that the mortgagee was not notified about the mercenary purposes of the actual pledger.

Grounds for invalidating an agreement

Remember! The following criteria serve to assess and recognize a pledge agreement as invalid:

• lack of legal capacity of at least one of the parties to the agreement;
• lack of legal right to sign a pledge agreement;
• one or both parties are citizens under the age of 18;
• the contract is not registered in the prescribed manner;
• lack of approval of the transaction by the spouse if the contract is concluded by a citizen who is married;
• the contract does not contain the conditions that are basic for the conclusion of the transaction.

As for the situation in which the contract is void due to the incapacity of the party, this can be recognized in court or confirmed by documents that indicate the age of the person who entered into the transaction.

The same can be said about the fact that if a person is under 18 years old, and he does not have with him the consent to conclude a transaction from legal representatives, the pledge agreement will be declared invalid.

All pledge agreements, the subject of which are real estate objects, must undergo the procedure for registering the right with the Rosreestr authorities. Otherwise, the transaction is considered void.

Citizens who are legally married are required to obtain each other's consent that there are no objections to the conclusion of a pledge agreement with one of them.

If the parties, when drawing up the pledge agreement, did not refer to the main conditions for the validity of the document, then it can also be considered void.

Provided jurisdiction

The question of the correctness of determining the jurisdiction of such cases causes some difficulties for citizens. So, disputes between individuals should be resolved in courts of general jurisdiction, and if an organization is involved in the case, then the application is submitted to the regional arbitration court.

Please note! If the subject of the pledge agreement is a real estate object, then all claims are considered at the location of the relevant property (part 1 of article 30 of the Code of Civil Procedure of the Russian Federation).

Also, challenging the rights to real estate, recognizing the pledge agreement as void, is within the jurisdiction of the judges on whose plots the specified objects, buildings and structures are located.

The order of the procedure

In order to recognize the pledge agreement as void, it is necessary to prepare a statement of claim according to the number of persons participating in the case. Copies, and in some cases original documents, are attached to the claim as evidence of challenging the transaction.

If the statement of claim is not drawn up according to the rules established by the procedural legislation, or the number of statements does not match the number of persons participating in the case, then the judge has the right to leave the claim without movement, indicating the correction of deficiencies until a certain date.

If the limitation period is missed, then the applicant must, along with the application, attach a petition for the restoration of the deadline for filing a claim. Documents serving as proof of good reasons for the pass are also attached to it.

The limitation period for cases on recognition of a pledge agreement as invalid is one year.

An exception is the following situations in which this period is equal to three years:

• conclusion of an imaginary or feigned transaction;
• the pledge agreement is contrary to the norms and principles of morality and law and order;
• conclusion of an agreement with an incompetent person.

The defendant in the lawsuit will be the other party participating in the transaction.

Important! After filing a statement of claim, the judge shall, within five days, issue a ruling on accepting the case for proceedings, of which he shall notify the parties. The first court session takes place in the form of a conversation to establish the details of the future proceedings.

After that, the judge sends a notice of summons to court for the first court session.

Based on the results of the proceedings, which should last no more than two months, a decision is made. Before it enters into force, it may be appealed by the parties.

The appeal is submitted to the court of first instance, which sends it to a higher judicial body.

Watch the video. General provisions on collateral:

Legal Consequences

In the case when the judge makes a decision indicating the recognition of the pledge agreement as null and void in full or in any part, then for the parties this means only one thing: all legal consequences of the agreement cease to have legal grounds.

So, for the mortgagee, this may be expressed in the absence of loan security. The mortgagee in this situation practically does not risk anything. However, the lender may subsequently change the terms of the loan agreement and oblige the borrower to pay the entire amount.

If the pledgee refuses to comply with the court decision regarding the return of property, then the pledgor will need to apply to the court. In this case, the Federal Bailiff Service of Russia will control the process of returning the subject of the pledge agreement.

Thus, if the agreement is declared invalid, legal consequences occur for both parties to the legal relationship that has arisen.

Attention! Our qualified lawyers will assist you free of charge and around the clock on any issues.

Arbitrage practice

Consider the judicial practice on the recognition of a pledge agreement as invalid.

Case 1

The subject of the pledge was a vehicle, the passport of which was also held by the pledgee. In case of systematic default by the borrower, the creditor filed a claim with the court for the return of funds with foreclosure on the pledged movable property.

The judge satisfied the creditor's requirements, but at the stage of enforcement proceedings it was established that the unscrupulous borrower made a duplicate of the title and sold the vehicle, which by that time was deregistered by the traffic police.

The lender again applied to the court with a statement on the imposition of encumbrances on the car, as well as on the recovery of funds at the expense of the collateral. The judge allowed the claim in part.

The new owner of the vehicle filed a claim for the recognition of the pledge agreement as void due to the fact that it was not concluded.

The first thing to do is to declare the arrest of the vehicle in accordance with the provisions of Art. 353 of the Civil Code of the Russian Federation. This measure will keep the property from being sold while the trial is going on.

The new owner of the car is obliged to prove his good faith when considering the case, since in this case the citizen purchased a vehicle whose passport was re-issued.

By virtue of the provisions of clause 43 of the Resolution of the Plenum of the Supreme Court of the Russian Federation N 6, the Plenum of the Supreme Arbitration Court of the Russian Federation N 8 of 07/01/1996 "On some issues related to the application of part one of the Civil Code of the Russian Federation", one of the essential conditions of the pledge agreement is an indication of the terms and amount fulfillment of obligations. Otherwise, the transaction is void.

If there is a loan agreement, then the above condition can be formalized as a reference to the corresponding loan agreement.

Challenging a mortgage agreement

In some cases, it is possible to challenge the mortgage agreement, despite the minimal chances. The contestation procedure is carried out in court and if there are grounds for recognizing the agreement as invalid.

Causes

The most common reason why citizens want to challenge a mortgage agreement is the unwillingness or inability to pay debts. In this case, it will be more efficient to organize the bankruptcy procedure in the Arbitration Court, because cancellation of an agreement between a bank and an individual at the request of the latter is impossible in this case.

When else can you dispute a deal:

• The real estate purchased at the expense of credit funds was registered in the name of an incompetent citizen, therefore it was under a burden. According to the law, any transactions with the incapacitated must be executed by their guardians or other legal representatives.
• The contract contains illegal requirements that put the borrower in an extremely disadvantageous position: bondage of the transaction, sham or pretense, if he learned about it only a few months after registration.
• The plaintiff is a bank demanding the annulment of the transaction due to the accumulation of large interest and penalties for the borrower.

IMPORTANT!!! The latter occurs when the debtor does not pay the loan for more than three months. From this moment on, a financial institution can file a lawsuit, try to resolve the problem on its own, or conclude an agreement on the assignment of the right to claim with a collection agency (Article 47 of the Federal Law “On Mortgage”).

How to dispute a mortgage agreement: step by step instructions

In Art. 30 of the Code of Civil Procedure states that when challenging transactions with property, it is necessary to apply to the court at the place of its registration. A borrower, co-borrower or property owner can apply. Often these are completely different persons, tk. the loan can be paid by one person, but the apartment is issued to another, not participating in the transaction.

What needs to be done:

1. Collect all documents indicating the illegality of the transaction or individual clauses of the contract.
2. Draw up a statement of claim, indicating in it your full name, passport data, contract number, name of the creditor, date of the transaction. It also indicates the essence of the claim, provides links to articles of laws that were violated by the bank when concluding the agreement. At the end, an inventory of the attached materials is made, a signature is put.
3. Submit a claim to court. This can be done in person or through an electronic form on the website of the judicial authority, if such an opportunity is provided in the region of residence.
4. When filing a claim, ask the judge to put a note on registration on the second copy.
5. Wait for a notice from the court. It usually arrives within 10 days and contains an SMS with the date of the first court hearing.

If the applicant is denied acceptance of the claim, within 5 days a ruling is sent to him indicating the reasons (Article 134 of the Code of Civil Procedure of the Russian Federation).

When it comes to contesting a mortgage agreement between individuals, a similar algorithm is applied, but there is one caveat: if the court establishes that the defendant knew about the unlawfulness of his actions and misled the plaintiff, he may be brought to administrative or criminal liability.

Consider an example from judicial practice:

Volokhov S.V. signed a mortgage agreement with Gryaznov R.O., according to which the latter sells him an apartment in installments at interest, and after the conclusion of the transaction it becomes a pledge until the debt is repaid. The contract indicated that the property was owned by Gryaznov R.O., a certificate of ownership of the property was provided.

Later it was established that Gryaznov's incompetent brother R.O. was registered in the apartment, and consent to its sale from the legal representative - the mother - was not received, he did not live in it.

Subsequently, the mother of the incapacitated person filed a lawsuit to invalidate the mortgage agreement on two grounds:

1. Conclusion of a transaction with a violation (the consent of the legal representative for the sale is required).
2. In connection with the sale of property, the rights to residence and free use of housing by the incapacitated were violated.

Having considered the materials of the case, the court ruled to terminate the mortgage agreement in connection with a significant violation of the rights of the borrower and the defendant's incapacitated brother.

This word has become fashionable in Russia quite recently by global standards. In developed countries, the real estate market has long been firmly associated with mortgages. In Russia, the mortgage entered the homes of citizens only 15 - 20 years ago. At first, mortgage issues were regulated only by the Civil Code of the Russian Federation and the Law of the Russian Federation of May 29, 1992 N 2872-1 "On Pledge" and only six years later the Federal Law of July 16, 1998 N 102-FZ "On Mortgage (Pledge of Real Estate)" was adopted (hereinafter - Federal Law "On Mortgage"), the norms of which are guided by the parties to civil law relations when concluding a mortgage agreement.

In modern conditions of mass, acquired with credit funds, a certain practice of mortgage disputes has also developed. What do the parties of credit and mortgage relations dispute in court? What decisions does the court make? And what conclusions can be drawn based on the analysis of judicial practice in this area? Let's take a closer look at the disputes around mortgage housing, without going into the issues of commercial real estate mortgages, corporate mortgages, and also without perceiving as a dispute an ordinary foreclosure on mortgaged real estate without any controversial issues or nuances.

Disputes about foreclosure on already lost collateral

The essence of the dispute: the pledge has long been lost or retired from the pledged property, and the bank requires foreclosure on the pledged property. This is possible in cases where during the term of the contract the bank team has changed more than once, and the documents confirming the removal of the encumbrance from the apartment are lost in the bank. And there were no reasons for such a step on the part of the bank.

Rule of law: by virtue of a pledge, the creditor under the obligation secured by the pledge (pledgee) has the right, in the event that the debtor fails to fulfill this obligation, to receive satisfaction from the value of the pledged property preferentially over other creditors of the person who owns this property (pledger), with exceptions established by law (part 1 of article 334 of the Civil Code of the Russian Federation).

Foreclosure on the pledged property to satisfy the claims of the pledgee (creditor) may be levied in case of non-fulfillment or improper fulfillment by the debtor of the obligation secured by the pledge. The pledgee acquires the right to foreclose on the subject of pledge if on the day of the due date for the performance of the obligation secured by the pledge, it is not performed, except in cases where, under the law or the contract, such a right arises later, or, by virtue of the law, the execution can be carried out earlier (h 1 article 348 of the Civil Code of the Russian Federation).

Court position: collection at the request of the bank can only be applied to property that is the subject of pledge at the time of the decision. If the property has already retired from the pledge, the mortgage agreement has already been terminated, and the mortgage record in Rosreestr has been canceled (in particular, on the basis of a joint application by the mortgagor and the mortgagee), then legal grounds, by virtue of the provisions of Art. 334 of the Civil Code of the Russian Federation there is no right to foreclose on the debtor's property released from pledge.

Case Study: the bank went to court with a claim to recover the amount of debt on an unreturned loan and foreclose on the mortgaged apartment. The court granted the bank's claims for the recovery of the amount of the debt. And he refused to foreclose on property due to the lack of grounds for this. Based on the evidence presented, as well as on the basis of an extract from the Unified State Register of Rights to Real Estate and Transactions with it (hereinafter referred to as the USRR or Rosreestr), requested by the court, the court concluded that the disputed apartment at the time of the decision was not burdened by the rights of third parties . Consequently, it could not be levied as a pledged property (Appeal ruling of the Supreme Court of the Republic of Buryatia dated 06/03/2013 in case No. 33-1265).

Conclusion: regardless of the reason for the repayment of the mortgage record in Rosreestr, the pledge is considered terminated, and it cannot be levied.

Disputes about paying off a mortgage entry and repaying a loan

The essence of the dispute: borrower - physical. the person submits to the court considering the case on the recovery of the amount of debt on the loan, documents on the repayment of the mortgage entry. And with reference to Art. 352 of the Civil Code of the Russian Federation and Art. 25 of the Federal Law "On Mortgage" claims that he has already fulfilled all his obligations under the transaction, which is why the encumbrance was lifted by a joint statement of the borrower (mortgagor) and creditor (mortgagor).

Rule of law: according to art. 352 of the Civil Code of the Russian Federation, the pledge is terminated:

1) with the termination of the obligation secured by the pledge;

2) at the request of the pledgor, if there are grounds for demanding early termination of the pledge (in case of gross violation by the pledgee of the obligations listed in paragraph 1 of Article 343 of the Civil Code of the Russian Federation:

• to insure at the expense of the pledgor the pledged property in its full value against the risks of loss and damage, and if the total value of the property exceeds the amount of the claim secured by the pledge - for an amount not less than the amount of the claim;
• take measures necessary to ensure the safety of the pledged property, including to protect it from encroachments and claims from third parties;
• immediately notify the other party of the threat of loss or damage to the pledged property);

3) in the event of the destruction of the pledged thing or the termination of the pledged right, if the pledgor did not use the right to restore the subject of pledge within a reasonable time or replace it with other equivalent property, unless otherwise provided by the agreement (clause 2 of article 345 of the Civil Code of the Russian Federation);

4) in case of sale (sale) of the pledged property in order to satisfy the requirements of the pledgee in the manner prescribed by law, as well as in the event that its sale turned out to be impossible.

Article 25 of the Federal Law "On Mortgage" establishes the procedure for registering the termination of a mortgage:

1. The registration authority receives one of three possible documents:

mortgage holder's statement;

joint application of the mortgagor and the pledgee;

application of the mortgagor with the simultaneous presentation of a mortgage bond containing a note from the owner of the mortgage bond on the fulfillment of the obligation secured by the mortgage in full, or a decision of the court, arbitration court to terminate the mortgage.

No other documents are required to redeem a mortgage registration entry.

2. The body that carries out the state registration of rights, within three working days from the receipt of one of the above documents, redeems the mortgage registration entry in the USRR.

Court position: the performance by both parties of the transaction of actions to terminate the mortgage agreement does not a priori mean the termination of credit obligations. A letter from the bank that the borrower has no debt on the loan and there are grounds for repaying the mortgage entry is not sufficient proof of the borrower's fulfillment of its obligations to the bank.

An example from practice: a high-profile case ended only at the stage of appeal. First, the court of first instance, having studied the letter of the bank, signed by an authorized person, about the debtor's absence of debt on the loan, considered that this fully confirmed the absence of the borrower's debt to the bank on the mortgage loan. Given that the bank, together with the borrower, filed an application with Rosreestr for the redemption of the mortgage record, the court was finally convinced of this conclusion. And only the higher court, with the same evidence in the case, came to the opposite conclusion: it is possible that the parties decided to terminate the mortgage agreement, which does not automatically mean the termination of the loan agreement, which was secured by it. The court, having made calculations, recovered from the borrower the amount of debt under the loan agreement, despite the presence of an official letter from the bank about the absence of this very debt, previously submitted to Rosreestr. At the same time, the court pointed out that the letter was inadequate evidence of the repayment of the debt. Thus, only financial documents (account statement, receipt orders and other documents) are able to confirm the absence of debt (Appeal ruling of the Moscow City Court dated 08.05.

Conclusion: a mortgage record can be repaid without fulfilling obligations. However, this will not release the borrower from repaying the debt on the loan.

Disputes about the legitimacy of imposing a penalty on an already changed subject of pledge

The essence of the dispute: the mortgagor - the defaulter on the loan believes that, since during the period of the mortgage agreement the state of the pledged property has changed (the area of ​​the mortgaged house was increased due to an extension), and the corresponding changes have not been made to the mortgage agreement, to foreclose on the already new property impossible due to the invalidity of the mortgage agreement.

Rule of law: according to art. 76 of the Federal Law “On Mortgage”, when granting a loan or a targeted loan for the construction of a residential building, a mortgage agreement may provide for securing the obligation with construction in progress and materials and equipment belonging to the mortgagor that are prepared for construction. If the said building has been reconstructed, then, by virtue of the same norm, the mortgage agreement, without making any changes and additions to it, shall also apply to the constructed residential building.

Court position: the court is guided by the Federal Law "On Mortgage", taking into account the explanations given in the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated January 28, 2005 N 90 "Overview of the practice of consideration by arbitration courts of disputes related to a mortgage agreement." According to these clarifications, a change in the subject of mortgage during the validity period of the mortgage agreement does not mean either the physical or legal death of the subject of pledge, which, within the meaning of paragraphs. 3 p. 1 art. 352 of the Civil Code of the Russian Federation entails the termination of the pledge. Neither the Civil Code of the Russian Federation, nor the Federal Law "On Mortgage" require, in order to maintain the force of the mortgage agreement, the introduction of changes to it regarding the description of the subject of mortgage and its assessment, and the registration of these changes.

Within the meaning of Art. 76 of the Federal Law "On Mortgage" a mortgage agreement, the subject of which was a residential building under construction, without making any changes and additions to it in terms of describing the subject of mortgage and its assessment and without registering such changes and additions, applies to the constructed residential building.

Case Study: a citizen entered into a loan agreement with the bank, in order to secure obligations under which the parties registered a mortgage agreement - a pledge of a two-story house along with the land plot on which it was located. Over the long period of the contract, the borrower-mortgagor added a building, thus increasing the area of ​​\u200b\u200bthe house. As a result of construction activities, the subject of pledge has changed significantly. When it came time to collect funds and foreclose on the collateral (after the borrower had not fulfilled his obligations to repay the loan), the citizen - the owner of the property began to insist that the mortgage agreement was no longer valid, since the collateral had already changed a long time ago, the changes are registered. No changes were made to the mortgage agreement. The court, guided by the above position, did not share the delusions of the owner of the pledged property. And the bank's claim was satisfied, recovering the amount of the outstanding loan and foreclosing the house with a land plot (Determination of the St.

Conclusion: changing the subject of collateral during the validity period of the agreement without making appropriate changes to the mortgage agreement does not invalidate such an agreement and does not prevent further foreclosure on the changed subject of pledge.

Foreclosure on the only housing. special circumstances. Postponement.

The essence of the dispute: the pledgor believes that it is impossible to foreclose on the only housing of people. Especially if the person living in mortgage housing is terminally ill. Or the resident is a minor child.

Rule of law: Part 1 Art. 446 of the Code of Civil Procedure of the Russian Federation prohibits levying execution under executive documents on residential premises (parts thereof) owned by the debtor citizen, if for the debtor citizen and members of his family living together in the owned premises, it is the only premises suitable for permanent residence. An exception to this is housing that is the subject of a mortgage. It can be foreclosed on in accordance with the legislation on mortgage.

According to Part 1 of Art. 78 of the Federal Law "On Mortgage" foreclosure by the mortgagee on the mortgaged residential house or apartment and the sale of this property are grounds for terminating the right to use them by the mortgagor and any other persons living in such a residential house or apartment, provided that such a residential house or apartment was pledged under a mortgage agreement or under a mortgage by virtue of law to secure the repayment of a loan or target loan provided by a bank or other credit institution or other legal entity for the acquisition or construction of such or other residential house or apartment, their overhaul or other inseparable improvement, and also for the repayment of a previously granted credit or loan for the purchase or construction of a residential house or apartment. The procedure for the sale of housing foreclosed on is provided for by the same Art. 78 FZ "On mortgage". The procedure for the eviction of persons living in mortgage housing is regulated by Art. 107 of the Federal Law of 02.10.2007 N 229-FZ "On Enforcement Proceedings".

Court position: the law allows foreclosure on any housing provided as collateral under a mortgage agreement, including the only one. With the identity of persons registered in housing, the law does not connect the foreclosure in any way. The law also allows the eviction of all persons registered in the residential premises. But taking into account the specific circumstances of the case, if there is a corresponding application from the interested parties, the court may postpone the execution of the judgment. For example, eviction decisions.

Case Study: the son took a loan from the bank, deciding to try himself in the field of entrepreneurship. And as a pledge he provided an apartment in which he and his parents lived. The parents didn't mind. When the unfortunate borrower did not pay off the loan and the bank began to demand its return, as well as to foreclose on the mortgage, both the son and his parents, speaking in court, began to prove that the mortgaged apartment was their only home. In addition, during this time, a minor child was registered and settled in the apartment, over whom the borrower's parents issued guardianship. All these circumstances did not prevent the court from not only recovering the loan amount from the borrower, but also foreclosing this only housing. And the higher instance considered this decision lawful and justified (Cassation ruling of the Saratov Regional Court dated 08/09/2011 in case No. 33-4014).

The recovery was levied, the premises were not sold at the auction, and the pledger-bank accepted it on the balance sheet, having issued the relevant documents in Rosreestr. And only after that came the turn of the actual eviction of both the son, and his parents, and the guarded minor child.

The only advantage in this situation was the postponement of the execution of the court decision on eviction: having lost the case on foreclosure on the subject of pledge in the cassation instance, as well as the case on eviction from the only housing, people evicted from mortgage housing turned again to the court, but with a statement about postponement of the execution of the judgment. As a justification, they provided certificates stating that one of the borrower's relatives living in the apartment was seriously ill with cancer and his transportation could lead to his death. The court made concessions, postponing the eviction by as much as 1.5 years, but obliging the borrower to pay at least 5,000 rubles each. debt per month on account of loan debt and, of course, pay all utilities. Subsequently, the bank also went to meet the disadvantaged people, allowing, on the same conditions as in the court decision, to live for another 1 year in an apartment. Giving people, so to speak, the opportunity and time to look for a new place to live.

And people got used to it... And when, at the end of all the delays (documented!) they were nevertheless evicted with the help of the bailiff service, they were perplexed: "Couldn't the bank let us all live out our lives here?" For reference: the borrower's parents at that time were about 65 years old, the borrower himself - 40, and the ward child - 14 years old. How long did the bank have to wait? Half a century or more?

For reference: this situation (including the period of consideration of the case) lasted more than five years. In the end, the bank sold the apartment and "closed" the debt of the failed businessman.

Division of property and debts

The essence of the dispute: the spouses once took out a loan together, together they secured its repayment as a pledge of joint property - an apartment or a house. And it doesn’t even matter if only one spouse acted as a party in all transactions, and consent was only requested from the other, which was documented. After the divorce, neither spouse wanted to pay for the other. Both (or one of the spouses) wished to share the debt, with which they went to court. Additionally, citizens are also asked not to foreclose on one of the spouses' share in the apartment as property allocated to the spouse during a divorce.

Rule of law: Part 1 Art. 391 of the Civil Code of the Russian Federation allows the debtor to transfer his debt to another person only with the consent of the creditor. Thus, if the creditor agrees, the court can divide the debt between the spouses. If you don't agree, this can't happen. Although in practice there are various solutions, including those that do not take into account this provision of the law (see the Appeal ruling of the Altai Regional Court of November 12, 2013 N 33-9286 / 2013).

According to part 2 of Art. 45 of the Family Code of the Russian Federation (hereinafter referred to as the RF FC), the collection is levied on the common property of the spouses for the general obligations of the spouses, as well as for the obligations of one of the spouses, if the court has established that everything received under the obligations of one of the spouses was used for the needs of the family. In case of insufficiency of this property, the spouses bear joint and several liability for the specified obligations with the property of each of them.

Position of banks: despite the fact that theoretically debts can be divided, in almost 100% of cases out of 100 banks are against the division of debts. And there is an explanation for this: they know their borrower as conscientious (or not so good). Their relationship is already documented. The bank has grounds and the right to recover in case of non-repayment of the loan. The civil law does not provide for a mechanism for imposing the obligation to repay a loan under an unsigned loan agreement (with a new borrower), as well as forcing a new borrower, formed as a result of a court decision, to sign a loan agreement without actually receiving the money spent by the spouses jointly before the trial.

Court position: given the position of the creditor bank, guided by the complexity of the real division of debts on a mortgage loan, the courts in most cases resolve the situation as follows: without touching all previously fulfilled loan obligations before the dissolution of the marriage, the court sets the amount of the balance to be repaid under the loan agreement. It also appraises mortgages. Then, if the immovable property is not subject to division in kind, he awards it to one of the spouses, obliging him to pay the other spouse the share due to him in the amount determined by the court. The borrower leaves all obligations under the loan, and the second spouse is obliged to pay 1/2 of the loan payment amount every month to the spouse who remained the borrower. If there is a desire of the spouses, the data of the amounts exchanged between them can be set off. If the spouses act as co-borrowers on the loan, they are jointly and severally liable for the loan obligations. The decision of the court in this case is almost the same.

The court forecloses on the apartment, based on the provisions of Art. 50, 54 and 78 of the Federal Law "On Mortgage", within the meaning of which the mortgagee has the right to foreclose on property pledged under a mortgage agreement in order to satisfy claims at the expense of this property caused by non-fulfillment or improper fulfillment of an obligation secured by a mortgage. The courts note that when determining shares in common debts, the division of the debt and the replacement of the debtor in the obligation are not made, i.e. the loan agreement itself in connection with the division between the former spouses of the debt has not changed. Determining the share of each of the spouses in the total debt establishes only the obligation of the former spouse to reimburse the other spouse for part of the expenses incurred by him to pay off such debt. The allocation of a share in a mortgaged apartment also does not affect the court's right to foreclose on the entire apartment.

Case Study: the lender filed a lawsuit to recover the outstanding debt on the loan and foreclose on the mortgaged housing (mortgage by virtue of law), submitting to the court a loan agreement, a mortgage and other documents confirming the validity of the claims. The court satisfied the claim, not accepting the arguments of the defendants on the division of their debts under the above loan agreement by the earlier decision of the court. The court found that by decision of the district court, the debts of the three co-borrowers under the loan agreement were indeed divided in equal shares. Meanwhile, the court found that the creditor did not give consent to replace debtors or to change the composition of debtors and thereby transfer the debt to other debtors. At the same time, two of the three co-borrowers previously applied to the court with demands to change the terms of the loan agreement, to impose the obligation to conclude an additional agreement to the loan agreement, however, the requirements specified by the decisions of the courts were left unsatisfied. Taking into account the position of the courts on the correct understanding of the division of the share in the total debt and maintaining the obligations to repay the loan unchanged, the court indicated in the decision that the obligations to the creditor of the defendants as joint and several co-borrowers continue to exist to the extent that they are determined by the loan agreement concluded between them . The court also did not accept the defendants' argument that by the time the foreclosure was made, the mortgaged apartment was already with the borrowers in common shared ownership, and not joint ownership, since when dividing the property, each of them was allocated a share in the mortgaged apartment. Based on the above conclusions, the court, despite the termination of the marriage of the co-borrowers and the division of property between them and the share in the total debt to the bank, recovered the loan amount from them in solidarity and foreclosed on the apartment as a pledge secured by a mortgage. And the allocation of shares in the apartment to each of the co-borrowers did not prevent this (decision of the Leninsky District Court of the city of Barnaul, Altai Territory dated 09/03/2013; Appellate ruling of the Altai Regional Court dated 11/12/2013 N 33-9286 / 2013).

Conclusion: the division of the debt is possible only with the consent of the bank. But even in the case of the division of the debts of the separated spouses, their obligations to the bank do not change, but only the share of each in the total debt is determined. Allocation of a share in mortgage housing also does not affect the bank's right to foreclose on the entire subject of pledge.