5/5 (2)

Feasibility 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 arising between banking organizations and other participants, the drafting and signing of a pledge agreement is one of the criteria for ensuring the fulfillment of obligations by the borrower.

If a person's insolvency procedure is initiated, then other creditors try in every possible way to challenge the existing pledge agreements. However, the judicial authorities recognize this right in vain if it is established that the borrower, by concluding such an agreement, did not try to evade financial responsibility to other citizens and organizations.

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

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

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

Ownership of mortgaged property

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

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

Courts in their practice often encounter situations when the 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 the pledged items.

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

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

In judicial practice, there are cases when the pledgee was also bona fide from the point of view of legislation, and the new owners were not aware of the signing of the pledge agreement, the subject of which was already their property by right.

The courts can also side with the bona fide new owners of the property, despite the fact that the pledgee was not notified of the mercenary purposes of the actual pledger.

Grounds for invalidating an agreement

Remember! The following criteria are used to evaluate and invalidate a pledge agreement:

• 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 agreement is not registered in the prescribed manner;
• lack of approval of the transaction by the spouse, if the contract is concluded by a married citizen;
• the agreement does not contain the conditions that are basic for the conclusion of the transaction.

As for the situation in which the contract is null and void due to the incompetence of the party, this can be recognized in court or confirmed by documents indicating 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 of age, and he does not have the consent to conclude a deal from legal representatives, the pledge agreement will be invalidated.

All pledge agreements, the subject of which are real estate objects, must go through the procedure for registering rights with the Rosreestr authorities. Otherwise, the transaction is considered null and void.

Citizens who are legally married are obliged to enlist the consent of each other on the absence of 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 basic conditions for the validity of the document, then it can also be considered null and void.

Provided jurisdiction

The question of the correctness of determining the jurisdiction of such cases causes some difficulties among 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 arbitration court of the region.

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

Also, the dispute over the rights to real estate, the recognition of the pledge agreement as null and void are within the jurisdiction of the judges on whose sites the indicated objects, buildings and structures are located.

The order of the procedure

In order to declare a pledge agreement null and void, it is necessary to prepare a statement of claim according to the number of persons involved in the case. Copies, and in some cases originals of 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 procedural legislation, or the number of statements does not coincide with the number of persons taking part in the case, the judge has the right to leave the claim without progress, indicating that the deficiencies will be corrected 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 time limit for filing a claim. Documents are attached to it, serving as proof of valid reasons for admission.

The limitation period for cases of invalidating a pledge agreement is one year.

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

• the conclusion of an imaginary or feigned transaction;
• the pledge agreement contradicts the norms and principles of morality and law and order;
• conclusion of an agreement with an incapacitated person.

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

Important! After filing a statement of claim, the judge, within five days, makes a ruling on the acceptance of the case for proceedings, of which he notifies 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 the 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. Until the moment it comes into legal force, it can be appealed by the parties.

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

Watch the video. General provisions on pledges:

Legal implications

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

So, for the mortgagee, this can be expressed in the absence of loan collateral. The pledgor 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 in full.

If the pledgee refuses to comply with the court's decision regarding the return of property, then the pledger will need to go to court. In this case, the FSSP of Russia will already control the process of returning the subject of the pledge agreement.

Thus, if the agreement is recognized as invalid, legal consequences occur for both parties to the arisen legal relationship.

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

Arbitrage practice

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

Case 1

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

The judge satisfied the requirements of the creditor, 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 with the traffic police.

The creditor again appealed to the court with a statement on the imposition of encumbrances on the car, as well as on the collection of funds at the expense of the pledged item. The judge granted the claim in part.

The new owner of the transport filed a statement of claim declaring the pledge agreement null and void due to the fact that it had not been concluded.

The first thing that needs to be done is to declare the seizure of the vehicle by virtue of 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 in progress.

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

By virtue of the provisions of clause 43 of the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 6, Plenum of the Supreme Court of the Russian Federation No. 8 dated 01.07.1996 "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 timing and size fulfillment of obligations. Otherwise, the transaction is void.

If there is a lending agreement, then the above condition can be formalized in the form of a reference to the corresponding loan agreement.

, Family, Housing codes of the Russian Federation.

Obviously, most of the legal disputes arising from the mortgage agreement are related to the collection of debt on a loan and the foreclosure of the mortgaged property. These claims of banks and mortgage holders are often a reason for the debtor to file a counterclaim to declare the real estate pledge agreement invalid or not concluded. As a basis for a claim, as a rule, the inconsistency in the mortgage agreement of all essential conditions (non-concluded agreement) or inconsistency of the mortgage agreement with the law are indicated (lack of consent of the spouse to an alienation transaction ..., lack of consent of the guardianship and guardianship authorities to conclude a transaction with the property of a minor, lack of rights to the property pledged (mortgage), the transfer of a building or structure to a mortgage without a simultaneous mortgage under the same agreement of a land plot on which the building or structure is located, etc.)

Courts are also considering other cases in disputes arising from a real estate pledge agreement (mortgage).

Mortgage

Foreclosure on property pledged under a mortgage agreement

Mortgage of land plots, residential premises

The "Review" uses the following judicial acts (to which there are active links in the relevant sections):

Resolution of the Plenum of the Supreme Court of the Russian Federation N 6, Plenum of the Supreme Court of the Russian Federation N 8 dated 01.07.1996"On some issues related to the application of part one of the Civil Code of the Russian Federation"
The cassation ruling of the Supreme Court of the Republic of Bashkortostan dated March 01, 2011 of the year
The cassation ruling of the Supreme Court of the Republic of Bashkortostan dated August 26, 2010 year in case No. 33-10247 / 10
The cassation ruling of the Supreme Court of the Republic of Bashkortostan dated March 17, 2011 of the year
The cassation ruling of the Supreme Court of the Republic of Bashkortostan dated November 09, 2010 of the year
The cassation ruling of the Supreme Court of the Udmurt Republic dated December 29, 2010 year in case No. 33-4303 / 2010
The cassation ruling of the Supreme Court of the Udmurt Republic dated February 21, 2011 year in case No. 33-539 / 2011
Determination of the Supreme Court of the Komi Republic dated April 14, 2011 year in case No. 33-1760 / 2011
Determination of the Supreme Court of the Republic of Tuva dated December 28, 2010 year in case No. 33-1032 / 2010
Determination of the Altai Regional Court dated September 08, 2010 year in case No. 33-6979 / 10
"Help on the results of summarizing judicial practice in cases arising from credit legal relations considered by the courts of the Amur region in 2009 "prepared by the Amur regional court"
The cassation ruling of the Astrakhan Regional Court dated January 12, 2011 year in case No. 33-93 / 2011
"Generalization of judicial practice on civil disputes arising from a property pledge agreement, including real estate (mortgages) considered in 2008 and the 1st half of 2009 "(Astrakhan Regional Court)
The cassation ruling of the Volgograd Regional Court dated February 03, 2011 year, in case No. 33-1687 / 2011
The cassation ruling of the Vologda Regional Court dated September 17, 2010 year No. 33-3927
Determination of the Voronezh Regional Court dated September 28, 2010 of the year
Determination of the Moscow Regional Court dated July 01, 2010 year in case No. 33-13607
Determination of the Moscow Regional Court dated October 28, 2010 in case no. 33-10748
Determination of the Moscow City Court dated July 15, 2010 in case No. 33-21179
Determination of the Moscow Regional Court dated April 19, 2011 in case No. 33-8813
The cassation ruling of the St. Petersburg City Court dated April 18, 2011 g. N 33-4804 / 11
The cassation ruling of the Krasnoyarsk Regional Court dated January 24, 2011 year in case No. 33-469 / 2011 А-57

Case No. 2-887 / 2015

SOLUTION

In the name of the Russian Federation

Judge of the Central District Court of Prokopyevsk L. Tikhonova

under the secretary of Dyakonova Yu.R.

examined in open court in Prokopyevsk

a civil case on the claim of Rinat Abbasovich Aftakhov against OJSC Ural Bank for Reconstruction and Development (UBRD) on recognizing the loan agreement partially invalid,

INSTALLED:

Plaintiff Aftakhov R.A. filed a lawsuit against the defendant on recognizing the loan agreement as partially invalid, removing the encumbrance from the only housing from the pledge, arguing that he took a loan in the amount of 1,900,000 rubles from the branch of UBRD OJSC, loan agreement No. from DD.MM. YYYY of the year. When signing the loan agreement, the defendant pledged his only dwelling, misleading him that the only dwelling is also subject to mortgage, taking advantage of his legal illiteracy. He bought a house in 2007, it is not a mortgage and was purchased before the conclusion of an agreement with the bank.

At the hearing the plaintiff Aftakhov R.A. he supported the claim and added that he and his minor son were registered in the house.

The plaintiff's representative John Bshoyan, acting on the basis of a notarized power of attorney, supported the claims, asked to remove the encumbrance from the house so that the plaintiff could freely dispose of the housing, t.to. the bank has illegally imposed encumbrances. Based on Part 2 of Art. 6 of the law on mortgages asks to recognize the loan agreement partially invalid.

The representative of the defendant did not appear at the hearing, he was notified of the day of the hearing.

Having heard the plaintiff, his representative, having examined the written materials of the case, the court comes to the following.

DECIDED:

Rinat Abbasovich Aftakhov filed a lawsuit against OJSC Ural Bank for Reconstruction and Development (UBRD) for recognizing the loan agreement as partially invalid, and refusing to remove the encumbrance from real estate for unfoundedness.

The decision can be appealed on appeal Kemerovo Regional Court within a month from the date of the decision in the final form.

Judge: signature

True: Judge L.G. Tikhonov

Court:

Central District Court of Prokopyevsk (Kemerovo Region)

Judges of the case:

Tikhonova L.G. (referee)

Judicial practice on:

Recognition of a transaction invalid

Recognition of a contract invalid

Judicial practice on the application of the norm of Art. 167 of the Civil Code of the Russian Federation

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 invalidating the agreement.

Causes

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

When you can still dispute the deal:

• The real estate purchased at the expense of credit funds was registered in the name of an incapacitated citizen, therefore, it was encumbered. According to the law, any transactions with incapacitated persons must be formalized by their guardians or other legal representatives.
• The contract specifies illegal requirements that put the borrower in an extremely disadvantageous position: enslavement of the transaction, sham or pretense, if he found out about this only a few months after registration.
• The plaintiff is a bank demanding the cancellation 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 that moment on, the financial organization can file a claim with the court, try to resolve the problem on its own, or conclude an agreement with the collection agency for the assignment of the right of claim (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 faces, tk. the loan can be paid by one person, but the apartment is issued to another person who is not involved 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, the 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 the 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 of registration on the second copy.
5. Wait for notification from the court. It usually arrives within 10 days and contains an SMS with the date of the first court session.

If the applicant's claim is denied, 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 challenging 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 illegality of his actions and misled the plaintiff, he can be brought to administrative or criminal liability.

Consider an example from judicial practice:

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

Later it was established that the incapacitated brother of R.O. Gryaznov was registered in the apartment, and no consent was obtained from the legal representative, the mother, to sell it, he did not live in it.

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

1. Conclusion of a transaction in violation (you need the consent of a legal representative for the sale).
2. In connection with the sale of property, the rights of 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.

I. Basic provisions on mortgage lending

This review examines the court practice related to disputes arising from mortgage lending. The mortgage agreement is an accessory agreement and consists in securing the fulfillment of obligations under the main agreement, incl. and credit. According to clause 1 of article 1 of the Federal Law of 16.07.98 N 102-FZ "On Mortgage (Pledge of Real Estate)" under an agreement on pledging real estate (agreement on mortgage), one party - the pledgee, who is a creditor for an obligation secured by a mortgage the right to receive satisfaction of one's monetary claims against the debtor under this obligation from the value of the mortgaged real estate of the other party - the mortgagor, primarily to other creditors of the mortgagor, with the exceptions established by federal law. The pledger may be the debtor himself under the obligation secured by the mortgage, or a person who does not participate in this obligation (a third party). In this case, the property in the mortgage remains with the mortgagor in his possession and use.

The review does not cover all, but only the most common types of disputes in three categories, namely disputes over:

- challenging the mortgage agreement and recognizing the mortgage agreement as invalid or not concluded;

- termination of the mortgage;

- concluding a mortgage agreement and changing the terms of the mortgage agreement.

In each of the above categories, only the main most common groups of disputes are considered based on the results of the analysis of judicial practice for 2014 - the first half of 2015.

The mortgage agreement is considered concluded when the parties reach an agreement on all the essential terms of the mortgage agreement, specified in particular in Article 9 of the Law on Mortgage. If any condition is not contained in the mortgage agreement, then such an agreement will be considered not concluded, even subject to state registration. As a rule, two errors are widespread: there is no indication of the assessment of the subject of the mortgage, and incomplete information is also reflected about the nature, amount and duration of the obligation secured by the mortgage. In credit legal relations, there are practically no cases when the parties do not indicate the essence of the obligation in the mortgage agreement, but there are miscalculations in terms of the timing and size of the obligation. So, a change in the main obligation by concluding additional agreements to the loan agreement must be accompanied by a change in the mortgage agreement (for example, by concluding additional agreements) with an indication of the essence, size, terms of the changed basic obligation. Otherwise, the mortgage agreement may be recognized as not concluded.

However, cases of recognition of a mortgage agreement as not concluded in lending are encountered much less often than in other cases, since banks are more attentive to the issues of concluding and compliance of the content of the mortgage agreement with formal requirements. Significantly more often mortgage agreements for lending invalid.

The mortgage agreement as an accessory agreement is invalidated if the main agreement is recognized as invalid, because A mortgage is a way to ensure the fulfillment of the main obligation, and with the termination of the main obligation, the mortgage is also terminated. A loan agreement can be invalidated for any reason, but the most common is a violation of the procedure for concluding and approving major transactions, the conclusion of a transaction by interested parties.

Violation of the procedure for approving a transaction to conclude an agreement, concluding an agreement by interested parties is also the most common reason for invalidating a mortgage agreement. For example, a violation of the procedure for notifying shareholders of an extraordinary general meeting was the basis for declaring the meeting invalid, which resulted in the invalidation of the mortgage agreement. The courts proceed from the fact that if the shareholder was not properly notified of the holding of the general meeting, then his rights are violated, since the conclusion of a mortgage agreement can potentially lead to foreclosure on the property of the joint-stock company, a decrease in the value of shares and property losses of the shareholder, who, with timely notification, could take measures to minimize possible losses. When the transaction is approved by the shareholders, no interested parties are allowed to vote. For example, the mortgage agreement was declared invalid because the shareholder - the debtor under the loan agreement, in the provision of which the company concluded the mortgage agreement with the bank - participated in the voting.

All of the above is also true for cases of approval of a transaction in an LLC: members of the company, not duly notified, have the right to challenge the mortgage agreement. An analysis of judicial practice shows that usually the minutes of extraordinary meetings of LLC participants are falsified, signatures for absent participants are forged by other persons. Such actions may entail the invalidation of the mortgage agreement. Also, the contract is recognized as invalid when a transaction is made by an interested person, especially when the participant of the LLC and the borrower are the same person, or relatives.

In disputes with individuals, there are much fewer cases of recognition of a mortgage agreement as invalid on the basis of a violation of the procedure for approving a transaction. Basically, contracts are recognized as invalid when pledging property that is in the common (joint) ownership of spouses, incl. former. Potential mortgagees need to carefully check the status of the property, especially in cases of divorce between spouses, it is not enough to check which of the former spouses has registered ownership, but also whether this property is jointly acquired (how it was acquired into ownership and at what funds), and if it is, then whether the division of jointly acquired property was carried out after the divorce. Otherwise, the consent of the other co-owner-spouse may be required to pledge the property. For example, the mortgage agreement for the building was invalidated because after the divorce, the division of the jointly acquired property was not carried out and the consent of the former spouse was required to transfer the property as collateral.

Important: the mortgage agreement is recognized as invalid in the above cases only if bad faith the mortgagee. The bank must conduct a thorough examination of the purity of the approval of the transaction, the compliance of the submitted documents with the formal requirements, assess the composition of the participants (shareholders) who voted for the approval of the transaction, the presence of interest in the transaction; the regime of ownership of the property transferred to the mortgage. For example, the Bank did not pay attention to the fact that the voting was attended by a shareholder who is a beneficiary under a mortgage agreement as a borrower under a loan agreement secured by a mortgage agreement. This behavior was found to be unfair. In another case, although there was a violation of the procedure for approving the transaction - one of the LLC participants was not notified of the meeting, did not participate in the approval, and the minutes of the meeting with his signature were falsified - the bank was recognized as a bona fide pledge holder, since he could not know about the fact of falsification , proceeding from the experience of business communication with the LLC, the pledger provided the minutes of the meeting of participants with the original seal of the LLC affixed to the document.

The conclusion of a transaction by interested persons or a person with excess of authority also entails the recognition of the mortgage agreement as invalid. We have already mentioned the cases when the transaction was made and approved by interested parties - when the debtor and the lender or its executive body (participant, shareholder) coincide in one person or are relatives; but no less common are cases when a transaction is made by a trustee, a representative under a power of attorney with excess of authority, when the power of attorney does not contain an indication of the possibility of such transactions, or when the trustee or representative is a beneficiary under a mortgage agreement (for example, the conclusion of the mortgage agreement by the representative as security for the loan agreement, under which he acted as the borrower, was recognized as a transaction by an interested person in violation of the requirements of the law on representation).

Another group of disputes on the recognition of a mortgage agreement as invalid is closely related to insolvency (bankruptcy) cases.

A mortgage agreement is invalidated if it was concluded for the purpose (even if not consciously, not explicitly) of causing damage to other creditors of a person declared bankrupt, or having obvious signs of insolvency. So, for example, the mortgage agreement between the debtor and the bank was invalidated, since it was concluded to secure all previously concluded loan agreements between the parties in order to first satisfy the claims of the pledgee bank bypassing other creditors, and such satisfaction of claims would make it impossible to recover the debt to other creditors.

Violation of the balance of interests of other creditors, a decrease in the debtor's bankruptcy estate is the most frequent reason for recognizing the mortgage agreement as invalid. Moreover, it is not necessary that the mortgage agreement was concluded with the debtor as the pledger. Often, the subject of a mortgage is acquired under a sale and purchase agreement on conditions that are clearly unfavorable for the seller-debtor, and the sale and purchase agreement is invalidated, and, therefore, the mortgage agreement is also recognized as invalid in connection with the loss of the property right by the mortgagor. It is worth noting that in the case of the pledgee's good faith, the encumbrance of the property remains, but the courts rarely recognize the pledgee as good faith, especially in insolvency (bankruptcy) cases in the circumstances of the purchase and sale transaction indicated above. So, for example, the court refused to recognize the bank as a bona fide pledgee, t.to. The bank, relying on the expiration of the limitation period for the sale and purchase transaction, did not check the transaction and did not reveal the defect of the transaction in the form of an obviously understated selling price of the property. In another case, the bank was also not recognized as a bona fide pledgee, since the acquisition by the pledgor of the subject of the mortgage from the debtor-seller was carried out at a price several times lower than the real market price, and the bank should have known about this.

That is, one of the main grounds for recognizing a transaction as invalid will be damage to the property rights of creditors, while three circumstances must be established simultaneously: the purpose of the transaction is to harm the property rights of creditors (albeit not explicitly), such damage has been caused, the other party to the transaction knew or must be aware of the specified goal at the time of the transaction (clause 5 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation of December 23, 2010 N 63 "On some issues related to the application of Chapter III.1 of the Federal Law" On Insolvency (Bankruptcy) ").

A potential mortgagee must carefully and responsibly assess the legal risks of concluding a transaction for the transfer of property as a pledge (mortgage); it is worth checking not only the formal compliance of the transaction with the requirements of the law, but also to what extent this transaction meets the interests of the pledger, what is his property status. Thus, the mortgage agreement was invalidated on the grounds that the transaction was clearly disadvantageous to the mortgagor, since in the event of foreclosure on the subject of a mortgage, the activity of the pledgor will be impossible (paralyzed), and the fulfillment of his obligations under the main obligation, in support of which the mortgage agreement has been concluded, is doubtful due to obvious insolvency. At the same time, the bank, as a pledgee, should have been aware of the signs of insolvency and the disadvantage of the transaction for the pledger.

Recognition of the mortgage agreement as invalid serves as the basis for the removal of the encumbrance from the property in the pledge, the redemption of the registration record in the USRR on the mortgage. In this case, the basis for canceling the registration record is a court decision on recognizing the transaction as invalid and applying the consequences of the invalidity of the transaction. Important: in itself, the recognition of the mortgage agreement as invalid does not entail the removal of the encumbrance from the property and the cancellation of the registration record, because the court decision must contain an indication of the application of the consequences of the invalidity of the transaction; it is allowed to file a claim for the removal of encumbrances from property, redemption of the registration record as an independent way of protecting the violated right (clause 52 Resolution of the Plenum of the Supreme Court of the Russian Federation N 10, Plenum of the Supreme Court of the Russian Federation N 22 dated resolution of disputes related to the protection of property rights and other property rights "). If the consequences of the invalidity of the transaction are applied in the form of removing the encumbrance from the property, it becomes impossible to foreclose on the subject of the mortgage.

Mortgage termination disputes

A mortgage can be recognized by a court as terminated due to various circumstances, this review lists the most common grounds (categories) of disputes.

Thus, a mortgage is recognized as terminated when the mortgagor loses ownership of the subject of the mortgage. Moreover, one should pay attention to the fact that we are talking about the loss, and not the transfer of property rights under compensated or gratuitous transactions, when the right of pledge is preserved. Loss of ownership, as a rule, is carried out as a result of vindication, when a sale and purchase transaction, another transaction on the basis of which the mortgagor acquired ownership of the mortgage subject, is invalidated. Thus, the recognition of the sale and purchase agreement as invalid as a transaction made in violation of the approval procedure and causing property damage to the seller served as the basis for the recognition of the mortgage as terminated due to the loss of ownership of the mortgaged property by the mortgagor.

Important: the pledgee can retain the right of pledge only in the case of good faith, but, as a rule, the courts often recognize the actions of the pledgee to be unfair, because banks are not doing enough and carefully assessing the legal risks, the basis for the acquisition by the mortgagor of the ownership of the mortgage, the purity of the transaction on the basis of which the ownership was acquired. Often banks are content only with the presence of a registration record in the Unified State Register of Legal Entities on the ownership of the mortgagor, forgetting that the registration record itself is not an indisputable proof of the acquirer's good faith (see paragraph 38 of the Resolution of the Plenum of the Supreme Court of the Russian Federation N 10 and the Plenum of the Supreme Arbitration Court of the Russian Federation N 22 dated 04/29/2010 "On some issues arising in judicial practice when resolving disputes related to the protection of property rights and other property rights"). A person is recognized as a bona fide acquirer (equal to a mortgagee) if he proves that during the transaction he did not know and should not have known about the unlawfulness of the alienation of the property by the seller, in particular, he took all reasonable measures to find out the seller's powers to alienate the property.

Thus, the bank was not recognized as a bona fide pledgee, since should have known on the basis of the sale and purchase agreement, other documents containing information about the subject of the mortgage, about the defect of the transaction for the sale and purchase of property that was acquired at a deliberately low price with causing damage to the seller, the alienation of property entailed a decrease in the bankruptcy estate, causing property damage the seller's creditors.

The most common ground for termination of a mortgage is the termination of the main obligation, in the provision of which the mortgage agreement was concluded. The main, credit, in our case, the obligation can be terminated for any reason, for example, due performance. In this category, the most common applications to the court are to declare illegal the refusal to repay the mortgage registration record, although sometimes the mortgagees also hinder this. So, for example, it was recognized as illegal evasion of the mortgagee from the repayment of the mortgage record on the basis of an allegedly arising legal dispute over a loan obligation, t.to. the loan obligation was terminated by proper performance, which means that the mortgage was also terminated.

Termination of the main obligation may arise on other grounds, for example, by liquidation of the debtor, the mortgage in this case is also recognized as terminated if the pledgor does not respond to the liquidation procedure in time and does not state the relevant requirements.

By agreement of the parties, the mortgage can also be terminated, moreover, without terminating the main obligation. The parties have the right to terminate the mortgage agreement at any time by concluding an appropriate agreement and thereby terminate the mortgage.

The third most widespread basis for recognizing a mortgage as terminated is the termination of the mortgage by force of law in the absence of an application by the pledgor to leave the subject of the mortgage to himself in the event that repeated auctions for the sale of the subject of the mortgage are recognized as not concluded. We will not dwell in detail on the essence of the disputes, we only note that the monthly period of notification-statements about leaving the subject with oneself should be counted not from the moment of receiving the corresponding proposal-notification from the bailiff service, but from the moment the auction was declared invalid and information about this was published in the media. The courts proceed from the fact that the pledgee must know about the bidding and monitor their state, the publication in open sources of information on the recognition of the bidding as invalid is the legal basis for starting the calculation of the monthly period established in Article 58 of the Law on Mortgages. We also note that in enforcement proceedings in relation to foreclosure on the subject of a mortgage, special rules on enforcement proceedings contained in the Law on Mortgages have priority. Thus, it was recognized as irrelevant that before the re-bidding the claimant withdrew the writ of execution, tk. although such a right is granted to the claimant, it creates legal uncertainty regarding the fate of the subject of the mortgage, which is unacceptable for the stability of economic turnover.

Let's pay attention to one more reason for terminating the mortgage: the sale of the subject of the mortgage within the framework of the bankruptcy procedure. If the pledgor does not declare, within the timeframe and procedure established by law, about his claims as a creditor, he may lose the opportunity in the future to foreclose on the subject of the mortgage, because the mortgage may be terminated by the sale of property at auction in order to satisfy the claims of the creditors of the debtor-pledger.

Disputes about the conclusion of a mortgage agreement, changes in the terms of the mortgage agreement

When concluding a mortgage agreement, attention should be paid to the identification of the subject of the mortgage, especially with respect to things that are not belonging to the main thing, such property should be designated separately as a separate subject of the mortgage. Thus, the mortgage was terminated in relation to the gas pipeline due to the fact that no evidence was provided that the gas pipeline belonged to the CHP and could not be used independently separately from the CHP.

The mortgage agreement is concluded in writing with a mandatory indication of the essence of the obligation, in the security of which the property is transferred to the mortgage, otherwise the agreement may be recognized as not concluded.

The mortgage agreement can be changed by the parties to the agreement at any time by agreement of the parties both by concluding a mortgage agreement in a new edition, and by an additional agreement to the agreement. At the same time, the supplementary agreement is not a new mortgage agreement, although it must be concluded in the same form as the main mortgage agreement. The supplementary agreement is recognized as an integral part of the mortgage agreement and should not contain all the terms of the mortgage agreement, but only an indication of the part that changes (although there is also a different position in the courts). Changes to the mortgage agreement are subject to state registration. In practice, there are cases of refusal of state registration of additional agreements on the grounds that they do not contain any essential condition of the mortgage agreement in accordance with Article 9 of the Law on Mortgage. In this case, the court usually recognizes the refusal as unlawful, because the supplementary agreement only changes the terms of the main mortgage agreement, and is not a new mortgage agreement.

The mortgage agreement can be changed by concluding and approving an amicable agreement on the main loan obligation. It is worth noting that in this case, the mortgage does not provide an initial obligation, but the fulfillment of the obligation changed by the amicable agreement. Thus, the decision of the court of first instance on the satisfaction of claims for debt collection on interest on a loan at the expense of the property in the mortgage was canceled, since by the amicable agreement, the loan obligation was changed, does not provide for the payment of interest, and the mortgage agreement with the approval of the amicable agreement ensures the execution of the amicable agreement.

Changing the mortgage agreement is also possible by fulfilling the main obligation for the debtor by another person - the guarantor, to whom in this case the rights of the pledgee are transferred. It is worth noting that in judicial practice there are cases of refusal to recognize the right of the pledgee for the surety, if he has not made state registration of the transfer of the rights of the pledgee. Thus, it was denied recognition of the rights of the pledgee to the person who filed a requirement to include the debt in the register of claims of the bankrupt debtor, on the basis that, according to state registration data, the pledgee's right was registered with the bank, while the very claim to repay the debt to the surety was included ...

II. Conclusions of the courts on controversial issues of mortgage lending

Contesting a mortgage agreement and recognizing a mortgage agreement invalid or not concluded

1. In the event that the agreement, in support of which the pledge (mortgage) agreement has been concluded, is recognized as invalid, the mortgage agreement shall also be recognized as invalid.

1.1. Determination of the Supreme Court of the Russian Federation of 04/27/2015 N 305-KG15-3033 in case N A41-38495 / 2013

Claim:

Revise in cassation the judicial acts on the invalidation of the pledge (mortgage) agreement.

The court's decision:

Refused to transfer the case for consideration by the court of cassation.

Position of the court:

A pledge (mortgage) agreement was concluded between the plaintiff and the bank to secure the obligation under the non-revolving credit line agreement between the bank and a third party LLC. During the trial, it was established that the agreement on the opening of a non-revolving credit line, a surety agreement, as well as additional agreements to them on behalf of the general director of the borrower were signed by another, unidentified person. Hence the conclusions of the courts based on Article 168 , clause 2 of article 434 , Article 819 , 820 of the Civil Code of the Russian Federation, on the nullity of the agreement on the opening of a credit line are legitimate, which means that the pledge (mortgage) agreement was reasonably recognized as invalid, tk. the mortgage agreement is an accessory agreement, serves to ensure the fulfillment of the obligation established by the main agreement; in case of invalidation of the main agreement, the mortgage agreement is also recognized as invalid.

1.2. Resolution of the Arbitration Court of the Ural District of December 16, 2014 N F09-8849 / 12 in case N A76-12681 / 2010

Claim:

To invalidate the clause of the supplementary agreement to the mortgage agreement, clauses of the purchase and sale agreement.

The court's decision:



Position of the court:

Requirements are met because Earlier, by a decision of the arbitration court, which has a prejudicial significance, the revolving credit line agreement and the mortgage agreement were declared invalid (void). The supplementary agreement to the contract, as well as the provisions of the sale and purchase agreement on encumbrance of real estate with a mortgage, the extension of a previously concluded mortgage agreement to the premises are also recognized as invalid, because based on an invalid transaction.

2. A mortgage agreement may be invalidated if its conclusion and execution causes property damage to the debtor's (bankrupt) creditors, the property status of the person who entered into the transaction; the conclusion of transactions is fraught with abuse of the right.

2.1. Resolution of the Arbitration Court of the North Caucasus District of 03/02/2015 N F08-751 / 2015 in case N A32-11077 / 2012 (see also Determination of the Supreme Court of the Russian Federation of 11.06.2015 N 308-ES15-6068 in case N A32-11077 / 2012 , who were refused transfer for review of judicial acts in the order of cassation proceedings).

Claim:

Recognize the real estate pledge agreement (mortgage) as invalid, apply the consequences of the invalidity of the transaction.

The court's decision:

The claim was satisfied.

Position of the court:

The debtor was declared bankrupt, the liquidator applied to the court with the above requirements. The mortgage agreement was declared invalid, because his conclusion entails infliction of property damage and violation of the balance of interests of the debtor's creditors, tk. puts one creditor (bank) in a more advantageous position in comparison with other creditors by virtue of the provisions of Article 334 of the Civil Code of the Russian Federation. The bank, acting reasonably and exercising the required prudence, could not be unaware of the company's financial situation, which did not allow it to fulfill its monetary obligation due to insufficient funds. The mortgage agreement was concluded as security for all loan agreements previously concluded between the bank and the debtor. At the time of the conclusion of the contract, the debtor had a debt to other creditors, which arose earlier than a debt to the bank. The conclusion of a mortgage agreement is aimed at ensuring the fulfillment of the bank's claims on a priority basis to the detriment of the interests of other creditors and may lead to the complete or partial loss of the ability of other creditors of the debtor to obtain satisfaction of their claims.

2.2. Resolution of the Arbitration Court of the West Siberian District of 08/06/2014 in case No. A45-11177 / 2010

Claim:

Recognize the pledge (mortgage) agreement invalid, invalidate the surety agreements.

The court's decision:

The claim was satisfied.

Position of the court:

Actions to conclude controversial transactions were recognized as aimed solely at causing harm to the debtor and his creditors in the form of an increase in accounts payable in violation of the interests of the debtor and creditors, that is, there are signs of abuse of the right. The bank knew (should have known) about the misappropriation of credit funds, but at the same time continued to lend to the debtor. In addition, when concluding disputable transactions, it was known that they were not secured by the debtor's net assets; for a significant period of time, the debtor had a deficit in circulating funds.

2.3. Resolution of the Arbitration Court of the Volga District of 08/19/2014 in case N A12-10845 / 2013

Claim:

Recognize concluded contracts, incl. the mortgage agreement is null and void.

The court's decision:

The claims were partially satisfied, the mortgage agreement was declared invalid.

Position of the court:

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