Pledge is a way of securing obligations between the debtor (mortgagor) and the creditor (mortgagee). Collateral can be primary or secondary. In the first case, the collateral is transferred to the Bank as a first priority collateral. If the borrower receives another loan (while refinancing the first loan) from another bank, the second-stage collateral mechanism is triggered.

In this case, the contractual relationship between the first Bank and the second (remortgaging) Bank is concluded in writing, and the collateral is remortgaged to the second Bank. The creditor has a priority right to the collateral relative to other creditors. The relationship between the parties is specified in the agreement and regulated by the Civil Code of the Russian Federation, the Federal Law “On Mortgage”, and the Federal Law “On Mortgage”.

Security is a set of conditions that gives the creditor confidence that the debt will be repaid. Collateral for a loan can be collateral in the form of real estate, movable property and other highly liquid assets (securities, guarantees), as well as a surety. In addition to the main collateral for the loan, in a number of countries there is a need to provide additional sources of income, because the credit risk for the lender is higher.

Similarities and differences between collateral and security

Thus, “Pledge” and “Security” are two different concepts. However, in the banking system there is a general expression - “Collateral”, which implies the entire system of contractual relations and obligations between the debtor and the creditor.

Securing a loan with collateral

There are types of loans in which the obligatory condition is the provision of collateral. These include: commercial, mortgage, consumer, leasing, etc. For them, Banks necessarily require “hard” collateral. For car loans, student loans and other “easy” loans, Banks mainly accept purchased cars, inventory items, movable property, etc. as collateral. The pledgor can be either the debtor himself or a third party, with his written permission.

Documentary component

After the loan is issued, the borrower's package is formed. It contains the loan collateral, agreements, and all other necessary documents in accordance with the “Lending Procedures”. Each unit of collateral in the Bank is accounted for as one off-balance sheet liability and reflected in the corresponding accounting entry. In practice, the nominal value of 1 collateral is usually equal to 1 unit of currency and is kept until the end of the loan term. At the end of the loan term, the off-balance sheet liability is written off from the Bank's liabilities and returned to the borrower against signature.

What happens if you don’t pay the Bank?

If the mortgagor fails to fulfill the obligations specified in the agreement, the Bank delivers to the debtor a notice registered with the relevant authority about the initiation of the procedure for forced collection of the collateral to pay off the debt. If the debtor does not “react” to the Bank’s actions in pre-trial proceedings, the Bank has the right to satisfy the obligation by selling the collateral.

The lawyer prepares a package of documents (correspondence between the debtor and the creditor), attaches signed agreements, calculates the full amount of the debt, and sends the case to court. If the court makes a decision in favor of the creditor, the debtor's property becomes the property of the Bank and is sold at an open auction under the hammer. If the court makes a decision in favor of the debtor, then one can only envy this debtor, because this is a very small percentage of all court cases.

Calculation of collateral and obligations

In order to secure a loan with collateral, the loan specialist first calculates the amount of the debtor’s obligations:

loan amount + accrued interest for the period according to the repayment schedule = loan obligations

Calculation example

To support the above material, let's give 2 examples:

Example 1.

You took out a loan:

As collateral for the loan, you provide a 3-room apartment with an approximate market price of 16,000,000 rubles. When calculating the collateral value of real estate, Banks use a liquidity ratio of approximately 40-70% of the value of the property. In your case, let's say it will be 50%. Thus, your apartment will be assessed by a Bank specialist in the amount of 8,000,000 rubles. Now let's calculate the amount of liabilities:

5,000,000 rubles * 11% * 5 years = 7,750,000 rubles.

Congratulations, your collateral fully covers your obligations and you have an excellent chance to get a loan.

Example 2.

You receive a mortgage loan to purchase an apartment, the cost of which is 14,000,000 rubles.

The goal is to buy an apartment

In mortgage lending, the property being purchased is required as collateral for the loan. What will be the calculation of the collateral security? Let's take a closer look here. The liquidity ratio will also be 50%. Now look: If the property being purchased costs 14,000,000 rubles, then after applying the coefficient, its estimated value as collateral will be equal to 7,000,000 rubles. And the amount of your obligations to the Bank is.

PLEDGING the client's PROPERTY is one of the most common forms of ensuring the repayment of a bank loan. A pledge of property is formalized by a pledge agreement signed by two parties and confirming the right of the creditor, in the event of failure to fulfill the payment obligation by the borrower, to receive priority satisfaction of the claim from the value of the pledged property.

The use of collateral in the practice of organizing credit relations presupposes the presence of a special mechanism for its application. The collateral mechanism is the process of preparing, concluding and executing a collateral agreement. The collateral mechanism arises at the time of consideration of a loan application as a condition for concluding a loan agreement. It accompanies the entire period of using the loan. The real appeal to the execution of the collateral mechanism occurs at the final stage of the loan movement - loan repayment - and only in certain cases when the client cannot repay the loan with proceeds or income.

In banking practice, operations for registration and implementation of a collateral mechanism are called collateral transactions. Collateral transactions of commercial banks do not have independent significance. They are derived from loan transactions and guarantee timely and full repayment of the loan. Loans issued on the security of the client's property or his property rights are called pawn loans.

From a legal point of view, the structure of the collateral mechanism can be presented in Fig. 13.1.

As can be seen from Fig. 13.1, the central place in the legal content of the collateral mechanism belongs to the definition of the right of ownership, possession, disposal and use of the pledged property. Uka These issues are resolved differently in the legislation of different countries. In Russia, the legal basis for the collateral mechanism is determined by the Law “On Pledge” and the Civil Code, according to which:

a) the right of ownership to the pledged property belongs to the borrower;

b) the borrower’s possession of the pledged property can be direct or indirect;

c) the pledge may be accompanied by the right to use the pledged items in accordance with its purpose.

The main stages of implementation of the collateral mechanism are:

• selection of items and types of collateral;
• assessment of collateral;
• drawing up and execution of a pledge agreement;
• procedure for foreclosure on a pledge.

THE SUBJECT OF THE PLEDGE can be things, securities, other property and property rights. At the same time, in order to be classified as a pledged property, this property must meet two criteria: acceptability and sufficiency. These criteria find different expressions in relation to different types of property.

Depending on the material content, collateral items are divided into the following groups:

1. Pledge of client’s property:

Pledge of inventory items:

a) pledge of raw materials, materials, semi-finished products;

b) pledge of goods and finished products;

c) pledge of currency valuables (cash currency), gold items, jewelry, art and antiques;

d) pledge of other inventory items;

• pledge of securities, including bills of exchange;
• pledge of deposits held in the same bank;
• mortgage (real estate pledge).

2. Pledge of property rights:

• pledge of the tenant's right;
• pledge of the author's right to remuneration;
• pledge of the customer's right under a contract;
• pledge of the commission agent's right under a commission agreement.

At the same time, in order for one or another client’s property to become the subject of collateral, it must comply eligibility and sufficiency criteria.

The acceptance criterion reflects qualitative certainty P subject of collateral, the criterion of sufficiency is quantitative. There are general and specific requirements for the qualitative and quantitative certainty of collateral.

General requirements for the quality side of collateral regardless of their material content, they come down to the following.

1. The collateral (things and property rights) must belong to the borrower (pledgor) or be under his full economic control.

2. Collateral items must have a monetary value.

3. The collateral must be liquid, i.e. have the ability to implement.

The general requirement for the quantitative determination of collateral is the excess of the value of the pledged property compared to the main obligation that the mortgagor has in relation to the pledgee, i.e. the value of the pledged property must be greater than the amount of the loan and the interest due on it.

Specific requirements for the qualitative and quantitative certainty of collateral depend on the type of collateral and the degree of risk accompanying the corresponding collateral transactions.

Acceptability of inventories The value for collateral is determined by two factors:

• quality of values;
• the ability of the creditor to exercise control over their safety. Quality criteria for inventory items are:

speed of implementation,

relative price stability,

possibility of insurance,

long-term storage. Therefore, perishable products, as a rule, are not used for collateral.

It is important not only to determine the quality criterion and select values ​​in accordance with it, but and provide their safety. Only in this case, the pledge of valuables can be a guarantee of loan repayment.

In this regard, the most reliable way to ensure the safety of pledged valuables is to transfer them to the creditor, i.e. jar. In this case, the borrower remains the owner of the pledged property with indirect ownership. He cannot dispose of or use the pledged values. This type of collateral is called mortgage When mortgaging, the lender acquires the right to use the pledged property. At the same time, he becomes responsible for properly maintaining and storing the pledged item and bears responsibility for loss and damage.

If the bank does not have storage facilities, this type of collateral in relation to inventory items has a limited scope of application. As mortgage items can be: _va currencies, precious metals, works of art, decorated and I. Current legislation also provides for the possibility (by agreement of the parties) of leaving the pledged inventory items with the pledgors. If the objects left with the pledgor are marked with signs indicating their pledge, the so-called firm pledge. IN In this case, the borrower does not have the right to use (spend) the pledged assets.

As practice has shown, hard collateral has a limited scope of application, since it is designed for values ​​not intended for current consumption.

A more common type of pledge when leaving valuables with the pledgor is pledge of goods in circulation. In this case, the pledgor not only directly owns the pledged valuables, but

and can spend them.

Pledge of goods in circulation It is currently used in the practice of domestic and foreign banks when lending to trade organizations, which must constantly have a stock of valuables in order to put them up for sale. In this case, the collateral is not only in the possession, but also at the disposal and use of the borrower. With this type of pledge, the organization can replace some pledged valuables with others, but the condition for the sale of goods is their mandatory renewal in the amount of consumed valuables. Pledge of goods in circulation is also called collateral with variable composition, Since there may be a discrepancy between the moment of sale of goods and the moment of renewal of inventory, in this case the collateral obligation does not always guarantee the repayment of the loan. This guarantee applies only to actual inventory. A type of pledge of goods in circulation is pledge of goods in processing. It is used for lending to industrial enterprises, in particular those processing agricultural raw materials. A feature of this type of pledge is the borrower’s right to use the pledged raw materials and materials included in the pledged items in production and replace them with finished products. Moreover, it may be possible to move valuables intended for processing from a warehouse to a workshop of a factory or factory. The processing of valuables by the bank is permitted if it is proven that the processing will result in a product of higher value than before. For proof, a special calculation is presented that shows the quantity and cost of pledged raw materials and materials; the period of its processing; average yield of processed products; storage. However, even in this case, the bank cannot exercise effective control over the safety of the pledged valuables.

Thus, different types of pledge of material assets (or settlement documents representing them) have an unequal degree of guarantee of loan repayment. The most realistic guarantee comes from a mortgage. Other types of collateral have conditional guarantees of loan repayment. Therefore, in the practice of foreign commercial banks, these types of collateral are used in relation to clients who have proven themselves positively, i.e. reliable partners for credit transactions.

Since in a market economy the situation with the sale of goods can quickly change, the amount of pledged assets is always higher than the amount of the loan issued. This provision defines the concept “sufficiency” of the collateral. When issuing pawn loans against inventory items, the maximum loan amount does not, as a rule, exceed 85% of the value of the collateral. This difference gives the bank an additional guarantee of loan repayment in case of unforeseen circumstances.

However, in each specific case, an individual margin(the difference between the value of the pledged assets and the borrower’s debt to the bank for the loan and interest), taking into account the risk of the credit transaction.

In addition to pledging inventory, in foreign and domestic practice, banks issue pawn loans secured by securities.

A criterion for the quality of securities, in terms of their acceptability for collateral, serve: the possibility of quick implementation and the financial condition of the issuing party. In this regard, in foreign and domestic practice, government securities with fast turnover have the highest quality rating. When issuing loans secured by them, the maximum loan amount can reach 95% of the value of the securities. When using other securities (for example, shares issued by companies) as collateral, the loan amount is 80-85% of their market price. However, commercial banks issue loans against both listed and unlisted securities. In the latter case, the quality of the loan collateral is lower, and therefore banks set a higher margin when assessing the value of the collateral.

Pledge items also include bills(trade and financial). The main requirement for a trade bill as a collateral is mandatory reflection of a real commodity transaction. It is also necessary to take into account the payment term of the bill, which cannot be shorter than the term of the loan issued. The maximum loan amount for a collateral bill, according to the experience of a number of countries, is 75-90% of the value of the collateral. In Russian practice, financial bills (obligations of the issuer to pay a certain amount of money) are mainly used as collateral. The main requirements for such a bill when used as collateral are: legality of issue, availability of a sales mechanism, liquidity.

The right of lien may also apply to deposits located in the same bank that issues the loan. Such contributions, as a rule, have a targeted nature of use. For example, an economic organization accumulates monetary resources for production capital investments or construction of social facilities (residential buildings, dispensaries, preschool institutions, sports complexes). When receiving a loan from a bank for current production needs, an enterprise can use created deposits in the appropriate amount, including foreign currency, as collateral. When using a foreign currency deposit as collateral, an order is given to the relevant bank employees to block the account in an amount adequate to the ruble loan. If the deposit is formalized by a certificate, then it can be deposited with the bank. If there is a delay in repaying the loan, the bank will ensure repayment of the loan from the deposit using incoming revenue. This is the simplest and most reliable way to guarantee loan repayment.

Lending to an aggregate (credit for the totality of inventories and production costs) or enlarged object (credit for a checking account) may require the use of mixed collateral including goods in stock, securities, bills. IN In this case, the requirements for the components of a mixed pledge remain the same as those described above. The maximum loan amount in accordance with the Charter of the State Bank of the RSFSR dated October 13, 1921 should not exceed 75% of the total value of the total security accepted as collateral.

There are some features in the use of collateral when issuing mortgage loans, which have been widely developed in global banking practice. In this case, a type of collateral appears, such as mortgage, i.e. pledge of real estate. The object of the mortgage can be: buildings, structures, equipment, land plots, residential buildings and apartments, cottages, garden plots, garages and other consumer buildings.

The following features are typical for a mortgage:: leaving the property in the possession and use of the mortgagor; the ability of the mortgagor to independently dispose of income received from the use of mortgaged items; the possibility of the mortgagor obtaining additional mortgage loans secured by the same property; mandatory registration of the mortgage in land registers maintained at the location of the subject of the mortgage; ease of control by the pledgee over the safety of the pledged item.

Mortgages are used, as a rule, when issuing long-term loans to legal entities and individuals (the population for the purchase of a house or apartment; farmers for construction or land development).

When issuing a mortgage loan, it is important to correctly assess the value of the collateral. The success of an assessment, as foreign experience shows, depends on the abilities, experience and competence of the appraiser. The bank attaches great importance to this issue.

In Russia, the use of a mortgage as security for obligations under a loan agreement is regulated The Law of the Russian Federation “On Mortgage (Pledge of Real Estate)”, which came into force on July 16, 1998. In accordance with it, the objects of mortgage are: land plots; enterprises, as well as buildings, structures and other real estate used in business activities; residential buildings, apartments and parts of residential buildings and apartments; dachas, garden houses, garages and other consumer buildings; air and sea vessels, inland navigation vessels and space objects.

The specified property may be the subject of a mortgage if it belongs to the mortgagor on the right of ownership or on the right of economic management.

If the property is in common joint ownership or is owned under a lease agreement, the consent of all owners or the lessor is required.

Provided that the subject of the mortgage is an enterprise, the mortgaged property includes tangible and intangible assets related to this enterprise.

In modern banking practice collateral when issuing loans stands not only the property belonging to the client, but also his property rights. As a result, there is an independent type of collateral - pledge of rights. The object of the pledge in this case is the rights of: the tenant to buildings, structures, land; the author for remuneration; customer under a contract; commission agent under a commission agreement, etc. When using a pledge of rights to ensure repayment of a loan, the bank must make sure that the period for receipt of funds to the borrower corresponds to the repayment period of the loan.

Another element of the collateral mechanism is valuation of the collateral.International practice has developed the following fundamental principles in this regard:.

1. Most collateral is valued at market value. This means, in essence, the highest price for which the property could be sold if there was a potential buyer and sufficient time to complete the transaction. However, in many cases when a bank implements a collateral mechanism to repay a loan, the original cost does not correspond to the actual price. This happens due to reasons such as: a lack of interested buyers, a decrease in the price of the property in question, an economic downturn, or the need to quickly find a buyer.

2. The collateral accepted must be regularly revalued in order to cover the credit risk at any time.

3. The value of collateral must be assessed by appropriately qualified specialists.

4. Authenticity and value of works of art, antiques, etc. must be confirmed.

If inventory Valuables are used as collateral, its cost should include the costs of conducting periodic assessments of the collateral, especially if independent experts are involved in these assessments.

6. When assessing collateral, attention should be paid to the correct determination of the liquidation value and costs of selling the property.

The actual level of loan coverage in a situation of forced sale of property can be determined if open market prices subtract the following:

• implementation costs;
• forced sale margin;
• the value of any priority claims to the property;
• payment of legal costs.

If we subtract the required margin of safety (depending on the degree of risk) from the net real value, we obtain the actual value of the property, which is security for repayment of the loan.

7. The most responsible, complex and time-consuming is the assessment
real estate as collateral. In international practice
There are three main methods used to value real estate, which
used in combination to select the most optimal option.

First method(costly) focuses on determining the possible costs of acquiring land and constructing new similar buildings in the foreseeable future during the normal course of construction. Next, the replacement cost of the objects is determined taking into account the amount of business income, which reflects the investor’s remuneration for the risk of constructing a real estate property. The resulting value is reduced by the amount of depreciation.

Second method(market) is based on information about the market price of similar sales transactions. Of course, this method uses a system of amendments, since there are practically no completely identical real estate objects. This method is easier to use, but presupposes a developed real estate market and the availability of information on market prices for various real estate properties.

Third method(income) is based on the premise that the value of a property is determined by the future net income that this property can bring during its operation. To use this method, they are guided by information on rental rates for a similar property, data on possible losses when collecting payments (due to the length of time it takes to find a tenant), information on the possibility of additional income from other forms of exploitation of the property.

For Russian conditions, the development of mortgages as a form of ensuring the repayment of loans is yet to come, so the issue of assessing real estate items will become particularly relevant in the future. According to experts, at this stage the most acceptable method is to determine the market value of the collateral and issue a loan in the amount of 50-60% of it.

The most important element of the collateral mechanism is the drafting and execution of a collateral agreement, which reflects the entire complex of legal relationships between the parties regarding the collateral of property or property rights.

In accordance with Russian legislation, a pledge agreement must meet certain requirements in form and content.

To the form The pledge agreement has the following requirements.

• The pledge agreement must be made in writing. As a rule, in Russian practice, a single document is drawn up, signed by both parties and sealed.
• The mortgage agreement is subject to mandatory notarization. In Russian banking practice, agreements on pledge of not only real estate, but also any other property of the client are subject to notarization.
• The mortgage agreement is subject to registration with local property management authorities in Russia.
• An agreement on the mortgage of state property is considered valid if permission is given by local bodies of the State Property Committee.

Failure to comply with the specified requirements for the form of pledge of property or property rights of the pledgor entails its invalidity.

TOThe contents of the pledge agreement (its main conditions) are subject to the following requirements by Russian legislation:.

1. Reflection of the essence of the claim (obligation) secured by the pledge, its size and deadline for execution. If collateral secures an obligation arising from a loan agreement, then the collateral agreement specifies who is the lender and who is the borrower; the amount of the loan and interest due; loan repayment period and interest payment.

2. Composition and value of the pledged property.

3. Type of pledge, reflecting the method of ownership and disposal of the pledged property.

4. Rights and obligations of the parties in relation to types of collateral.
When mortgaging, the rights and obligations of the parties are conditioned by the transfer

pledged property to the lender (bank). With a firm pledge, pledge of goods in circulation or processing, the rights and obligations of the parties depend on the characteristics of the corresponding type of pledge.

5. Forms of organizing control over compliance with the terms of the contract. Specific methods of organizing control over the fulfillment of the terms of the pledge agreement depend on the method and disposal of the pledged property.

In the contract a mortgage providing for the right of possession of the pledged property by the mortgagee must provide:

• the obligation of the pledgee to insure the pledged item for the full value at the expense and in the interests of the pledgor;
• the obligation of the pledgee to provide measures to preserve possession of the pledged items;

• the obligation of the pledgee to immediately notify the pledgor of the occurrence of a threat of loss or damage to the pledged item;
• the obligation of the mortgagee to send a report on the use of the mortgage by Redmet, if provided for by the agreement;

The pledgee's obligation to return the pledged item after
fulfillment by the mortgagor of the obligation secured by the mortgage.

In a pledge agreement with the pledged property remaining with the pledgor (firm pledge, pledge of goods in circulation), there may be prerequisites spendthrift provisions regarding:

— the right of the pledgee to demand that the pledgor take measures to preserve the subject of pledge;

• the obligation of the pledgor to maintain the minimum balance of the pledged assets at a certain level;
• the obligation of the pledgor to submit a report to the pledgee on the availability and condition of the pledged property;
• the right of the pledgee to verify the size, composition and storage conditions of the pledged property using documents and on site.

In the case of a mortgage, the mortgagor is obliged to maintain the property in good condition and pay expenses for its maintenance (unless the agreement provides for other conditions), and the mortgagee has the right to check the documents and the actual availability, condition and conditions of maintenance of the property.

In the case of issuing a loan secured by valuables, in order to ensure its repayment, the bank must systematically check the compliance of the amount of the loan provided with the value of the pledged valuables, taking into account the degree of losses that may occur during the sale of these valuables.

An approximate scheme for checking loan collateral may be as follows, million rubles.:

2. Cost of pledged valuables

on the same date according to the borrower 700

3. Margin set by the bank

taking into account the possible risk of losses upon sale of 30% (of the value of the pledged assets)

4. Real value of pledged valuables 700 - (30% of 700) = 490

5. Surplus (+), deficiency (-) provision 520 - 490 = -30

Consequently, based on the results of checking the collateral for the loan issued, the bank established a decrease in the value of the pledged property and its deficiency in the amount of 30 million rubles. This means that it is necessary to submit requirements to the borrower for immediate replacement of the lost collateral in the specified amount. In some cases, the bank, after checking on site the composition of the pledged assets, may require the replacement of some assets with others that are more liquid.

The final stage of the implementation of the pledge right and pledge wow mechanism is the procedure for foreclosure on the pledge. The basis for foreclosure on the pledged property or property rights is the borrower’s failure to fulfill its obligation secured by the pledge.

WITH the fate of the creditor (bank) having the right to foreclose n and on the mortgaged property there may be: a) the moment of expiration of the obligation (loan term); b) the loan repayment period plus the grace period provided for in the collateral agreement.

The Civil Code of the Russian Federation establishes two ways to contact collections. The first is by filing a claim in court. It is used in cases where:

• the subject of the pledge is real estate;
• to conclude a pledge agreement, the consent or permission of another person or body was required;
• the subject of the pledge is property that has significant artistic, historical or other value for society;
• the pledgor is absent and it is impossible to establish his whereabouts.

An appeal to the creditor's court is carried out on the basis of a statement of claim with the necessary documents attached.

The second method... - without a court decision - is used mainly in two cases:

• in relation to movable property, if this is provided for in the pledge agreement or established by an additional written agreement between the bank and the pledgor;
• in relation to real estate, if after the expiration of the payment period under the loan agreement, a notarized agreement has been concluded between the bank and the mortgagor.

The sale of pledged property in both foreclosure methods is carried out by selling the pledged property at public auction. The initial sale price of the property, from which the auction begins, is determined by: a) a court decision, if the foreclosure of the property is carried out in court; b) an agreement between the pledgee and the pledgor - in other cases.

The pledged property is sold to the person who offers the highest price at the auction.

If the amount proceeds from the sale of the pledged property exceeds the satisfaction of the creditor's (bank's) claims, the remaining funds are transferred to the pledgor.

If the amount proceeds from the sale of the pledged property is insufficient to cover the claims of the pledgee (creditor bank), the missing amount of funds is satisfied in the general manner, i.e. without benefits based on collateral.

Provided that the auction is declared void, the pledgee has the right, by agreement with the pledgor, to purchase the property.

If such a transaction does not take place, a repeat auction is announced, and in the event that they are declared failed, the pledgor has the right to retain the pledged item with its valuation in the amount of no more than 10% lower than the initial sale price at the repeat auction.

Table 13. 1

		Ratio		Opportunity
	Rating	cost	Liquidity	realize	Examples for
	reliable	mortgaged	items	control	illustrations
ness		property	collateral	for the subject
		and loan amounts		collateral
	And you-	more or	easy to implement	fully	cash deposit in a quoted bank
	juicy)	equals 100%	price may vary	under bank control
	IN	less than 100%	hesitate and difficulties may arise with implementation		securities transferred to the bank for safekeeping
	WITH	less than 100%		there are problems with control	1) unquoted- valuable valuables paper 2) inventories of goods and materials, located at the client's
	D	less than 100%	the price goes down,	there is a problem	inventories of goods and materials,
			there is a problem	with control	located
			with implementation		at the client's
	E	less than 100%	price goes down	no control	inventory of valuables held by the client

In general, considering collateral as one of the forms of ensuring loan repayment, it should be emphasized that such The guarantee is generated by the legally established property liability of the borrower to the lender. This creates legal protection for the interests of the creditor.

Economically, the guarantee of loan repayment when pledged is provided by: firstly, specific values ​​and rights that are the subject of the pledge (movable and immovable property, the borrower’s rights to real estate); Secondly, common property of the client, and sometimes of several persons -

For example, When pledging a bill of exchange, the bank gives preference to bills of exchange for which there is joint liability of the parties that gave the endorsements. The guarantee of repayment of a loan secured by securities is the financial stability of the organization that issued them.

Thus, the effectiveness of collateral law is determined not only by the legal protection of the interests of the lender, the quality of the collateral, but also by the general financial condition of the borrower. This conclusion means that the pledge of the borrower’s property does not preclude taking into account his personal creditworthiness.

At the same time, it should be noted that the use of collateral of the client’s property as a form of securing loan repayment contains a number of inconveniences. For the borrower, who must provide the lender with a certain item of collateral, there is a need to remove it from the sphere of his use. However, it is not profitable for the borrower to deprive himself of the right to use movable property (raw materials, finished products, vehicles, etc.). Therefore, these types of property, as a rule, are not subject to collateral. Mortgage-backed securities and bills of exchange are used as collateral. On the other hand, leaving the pledged valuables provided for in the pledge agreement in the use of the borrower poses a certain risk for the lender and creates the need to organize control over their safety. The exception is mortgages.

Taking these factors into account, in foreign practice the quality of collateral is assessed as a form of ensuring loan repayment.

In this case, the criteria for the quality (reliability) of collateral are:

a) the ratio of the value of the pledged property and the loan amount;

b) liquidity of the pledged property;

c) the bank’s ability to exercise control over the pledged property.

In accordance with these criteria, five groups of collateral are distinguished, characterizing different reliability (Table 13.1).

In Russian practice, the quality of collateral, which is taken into account when classifying loans by risk level, determined by two criteria:

a) the ratio of the value of the pledged property and the loan amount
(including the amount of interest and possible costs associated with the implementation of pledge rights);

b) the degree of liquidity of the collateral.

The indicator of collateral liquidity is the term for its sale, which does not exceed 150 days from the day when the sale of collateral rights becomes necessary for the bank (no later than on the 30th day of the borrower’s delay in regular payments to the bank on principal and interest).

In relation to these criteria there are three degrees of quality 2ShShchga:

a) full compliance with the established criteria;

b) non-compliance with at least one of them;

c) failure to meet both criteria.

“When selling goods (work, services) under goods exchange (barter) transactions, selling goods (work, services) free of charge, transferring ownership of the pledged item to the pledgee in the event of failure to fulfill the obligation secured by the pledge, transfer of goods (results of work performed, provision of services) when paying for labor in kind, the tax base is determined as the cost of the specified goods (work, services), calculated on the basis of prices determined in a manner similar to that provided for in Article 40 of this Code, taking into account excise taxes (for excisable goods) and without including tax.” .

That is, in fact, it turns out that if the sale of the collateral occurs at a price higher or lower than the market price, VAT is charged precisely on the market price.

The market price is determined in accordance with the provisions of Article 40 of the Tax Code of the Russian Federation. In general, this question is quite complex, so we will analyze it thoroughly.

Example 5.

(The numbers in the example are taken arbitrarily)

The production association ZAO Electron produces and sells televisions. Let's assume that in February of this year ZAO Electron entered into an agreement with a bank to receive a loan in the amount of 500,000 rubles for a period of 3 months at 20% per annum. The terms of the agreement stipulated that interest accrued for the use of borrowed funds was paid to the bank simultaneously with the repayment of the principal amount of the loan. To secure this loan agreement, ZAO Electron provided the bank with 35 televisions as collateral. The amount of the deposit was 530,000. The cost of one TV is 15,000 rubles.

At the end of the loan agreement, Electron CJSC did not pay the bank, and the latter foreclosed on the pledged property, which was sold through public auction. At the time of foreclosure of the debtor's property, his debt to the bank amounted to:

500,000 rubles +500,000 rubles x 24: (366 x 100) x 90 days. =529,508.20 rubles.

At the auction, televisions were sold at a price of 18,880 rubles, including VAT -18%. The sales price excluding VAT was 16,000 rubles.

From the proceeds (660,800 rubles), the bank withheld 529,508.20 of the debt under the loan agreement, and transferred the remaining amount (131,291.80 rubles) to Electron CJSC.

In April, ZAO Electron sold:

· 15 TVs at a price of 18,000 rubles plus VAT 18%;

· 20 TVs at a price of 20,000 rubles plus VAT 18%;

· 30 TVs at a price of 21,500 rubles plus 18% VAT.

What price should an accountant base on when determining the VAT tax base when selling televisions as collateral?

In accordance with the provisions of paragraph 2 of Article 154 of the Tax Code of the Russian Federation, the accountant must use the price determined on the basis of the provisions of Article 40 of the Tax Code of the Russian Federation.

In practice, this means the following: the weighted average level of sales prices is determined for a short period, for example, a month, which is compared with the price at which the TVs were sold at auction. This price is then compared with the market price for similar TVs. If the resulting percentage is more than 20%, then the “tax authorities” will calculate the tax based on the market price.

In the example used, the weighted average level of TV sales prices for April will be:

(15 pieces x 18,000 rubles + 20 pieces x 20,000 rubles + 30 pieces x 21,500 rubles): (15 pieces +20 pieces +30 pieces) = 20,230.77 rubles.

Let's compare the average price level with the selling price at auction:

(20,230.77 rubles – 16,000 rubles): 20,230.77 x 100% = 20.91%

The result obtained is more than 20%, therefore, the price at which televisions were sold at auction must be compared with the market price.

Let us remind you that, in accordance with the provisions of Article 40 of the Tax Code of the Russian Federation, tax authorities have the right to check whether your prices correspond to the level of market prices if fluctuations in the sales price in your organization for a short time deviate in one direction or another by more than 20%.

Let's assume that the market price for such TVs is 19,000 rubles (excluding VAT).

(19,000 rubles – 16,000 rubles): 19,000 rubles x 100% = 15.78%.

As we can see, the result obtained indicates that for a short time, Electron CJSC had a deviation from the market price of less than 20%. Therefore, the sales price at the auction does not need to be adjusted for VAT purposes.

In the example used, the amount of VAT that must be paid to the budget when selling through auction will be

16,000 rubles x 35 pieces x 18% = 100,800 rubles.

In the accounting of Electron CJSC, the sale of televisions through auction will be reflected as follows:

Account correspondence		Amount, rubles
Debit	Credit
	90 subaccount “Revenue”
90 subaccount “VAT”	68 subaccount “VAT”		VAT is charged on the sale of pledged items
	76 subaccount “Settlements with the pledgee”		The debt to the bank under the loan agreement was repaid
	76 subaccount “Settlements with the pledgee”

Now let’s look at the situation when the market price for such TVs is 21,500 rubles (excluding VAT).

Let’s compare the sale price at auction with the market price:

(21,500 rubles – 16,000 rubles): 21,500 rubles x 100% = 25.58%.

The result obtained is more than 20%, therefore, VAT when selling televisions at auction must be calculated from the market price, that is, the amount payable to the budget will be:

21,500 rubles x 35 pieces x 18% = 135,450 rubles.

In this case, the entries in the accounting of Electron CJSC will look like this:

Account correspondence		Amount, rubles
Debit	Credit
			Collateral written off
76 subaccount “Settlements with the pledgee”	90 subaccount “Revenue”		Revenue from the sale of pledged TVs is reflected
90 subaccount “Cost of sales”			The cost of televisions has been written off
90 subaccount “VAT”	68 subaccount “VAT”		VAT is charged on the sale of the pledged item
	76 subaccount “Settlements with the pledgee”		The debt to the bank under the loan agreement and the amount of accrued interest has been repaid
	76 subaccount “Settlements with the pledgee”		The amount of the difference between the amount for the sale of televisions and the amount of the obligation to the bank was obtained
90 subaccount “Profit (loss) from sales”			The financial result from the sale of televisions is reflected

There is one more point to note regarding VAT. We know that there are several types of VAT rates, namely 0%, 10% and 18%. In addition, Chapter 21 “Value Added Tax” of the Tax Code of the Russian Federation, namely Article 149 of the Tax Code of the Russian Federation, exempts some transactions from taxation.

In this regard, various options may arise for transactions with collateral, since we know that the subject of collateral in accordance with the law can be various property, therefore, there may be cases when the collateral is taxed at a rate of 10% and 18% or it is generally exempt from VAT.

Let's look at examples of how VAT transactions are accounted for if the subject of the pledge is property, the sale of which is not subject to taxation on the territory of the Russian Federation.

With regard to collateral transactions, the sale of the collateral is exempt from VAT if the pledged property is:

- medical goods of domestic and foreign production according to the list approved by the Government Russian Federation, namely:

· the most important and vitally necessary medical equipment according to the List approved by Decree of the Government of the Russian Federation of January 17, 2002 No. 19 “On approval of the list of the most important and vitally necessary medical equipment, the sale of which on the territory of the Russian Federation is not subject to value added tax”; prosthetic and orthopedic products, raw materials and supplies for their manufacture, and semi-finished products for them in accordance with the List approved by Decree of the Government of the Russian Federation of December 21, 2000 No. 998 “On approval of the list of technical means used exclusively for the prevention of disability or rehabilitation of disabled people, implementation which are not subject to value added tax."

“in the form of property, property rights that are received in the form of a pledge or deposit as security for obligations”

are income not taken into account when determining the tax base for income tax.

In addition, paragraph 32 of Article 270 of the Tax Code of the Russian Federation indicates that expenses not taken into account for taxation are expenses:

“in the form of property or property rights transferred as a deposit or pledge.”

In other words, with regard to pledged property, the positions of accounting and tax legislation coincide.

The parties to a pledge agreement are the pledgor (providing the pledge) and the pledgee (receiving the pledge as security). In order to determine which party and at what moment the income tax will arise, let us again return to the Civil Code of the Russian Federation.

According to the provisions of civil legislation (Article 334 of the Civil Code of the Russian Federation), the owner of the pledged property is the party providing collateral to secure its debt. Even if the terms of the pledge agreement provide that the pledged item is transferred to the pledgee, such a transfer does not imply a transfer of ownership, and, therefore, is not a sale, on the basis of Article 39 of the Tax Code of the Russian Federation. And since there is no sale, then the mortgagor does not have tax consequences at this moment, neither for VAT nor for income tax.

The object does not arise under VAT, since in accordance with the provisions of Article 146 of the Tax Code of the Russian Federation, the object of taxation under VAT is transactions for the sale of goods (work, services). Let's try to determine why there is no income tax.

According to Chapter 25 “Organizational Profit Tax” of the Tax Code of the Russian Federation, profit is understood as the difference between the amount of income received and the amount of expenses incurred.

Moreover, income is divided in turn into income from sales and non-operating income. For tax purposes, income from sales means income listed in Article 249 of the Tax Code of the Russian Federation, and non-operating income means income listed in Article 250 of the Tax Code of the Russian Federation. The transfer of the collateral is not mentioned in either one or the other. Therefore, the transfer of the collateral cannot be considered a taxable transaction.

But this situation remains with the pledgor only until the moment the pledged item is sold. That is, until the sale of this property, the mortgagor continues to be its owner. If the owner of the collateral has changed, this indicates that the mortgagor has sold this property, and, therefore, the obligation to calculate taxes arises. The calculation of the tax base for sales of collateral is carried out in the usual manner established for the sale of property for compensation.

With regard to the pledgee, we note that since the pledged property is not his property, it is not taken into account by him when determining the taxable base for income tax, either at the time when it is transferred to him or at the time of its sale.

Let's consider the procedure for calculating income tax when selling pledged property from an organization - the pledgor, using a specific example.

Example 7.

Zenit LLC received on February 1 of this year from Sibir LLC a cash loan in the amount of 100,000 rubles for 2 months at 24% per annum. The terms of the loan stipulate that the amount of interest due must be paid monthly. To secure its debt, Zenit LLC provided Sibir LLC with goods with a book value of 70,000 rubles as collateral. The collateral is valued by the parties at 85,000 rubles.

However, during the term of the loan agreement, Sibir LLC received only the amount of interest due for February of the current year. Zenit LLC did not return the remaining amount of the debt (102,000 rubles).

Sibir LLC went to court, which decided to sell the goods at public auction. The goods were sold in July 2004 for the amount of 105,000 rubles, including VAT. Let us assume that the selling price of goods corresponds to the market price.

Zenit LLC determines income and expenses on an accrual basis.

In the accounting records of Zenit LLC, these transactions were reflected as follows:

Account correspondence		Amount, rubles
Debit	Credit
	66 subaccount “Calculations on the principal amount of debt”		Amount of borrowed funds received
			Collateral reflected
In accounting, the accountant accrued interest due to Sibir LLC for February 2004.
91 subaccount “Other expenses”	66 subaccount “Interest calculations”				Debt paid off with interest
76 subaccount “Settlements on the subject of collateral”			The difference amount was transferred to the mortgagor

Based on the analysis of accounting entries, we see that the amounts received for the pledged property pass in transit through the lender. He only withholds the amount of the debt due to him and transfers the difference to the mortgagor.

Based on this, we can conclude that when the pledged item is sold, the pledgee does not have tax obligations.

So, tax consequences when selling pledged items arise only for the pledgor, and income tax is calculated by him in the usual manner. Consequently, when incurring certain expenses associated with collateral relations, an organization must determine what type of expenses the expenses incurred by it will relate to and whether they will be taken into account for taxation in accordance with the requirements of Chapter 25 “Organizational Income Tax” of the Tax Code of the Russian Federation.

Based on the provisions of the Civil Code of the Russian Federation (Article 343 of the Civil Code of the Russian Federation), we know that when concluding collateral agreements, organizations may incur certain costs. Thus, the pledgor may have expenses associated with insurance of the pledged item, its assessment, state registration, notarization of the agreement, and so on.

Since the mortgagor determines the taxable base for income tax in the general manner, therefore, when deciding whether these expenses can be taken into account for taxation, it is necessary to proceed from the following:

if the collateral agreement secures an obligation related to the organization’s production activities, then such expenses will reduce taxable profit. However, do not forget about the requirements of Article 252 of the Tax Code of the Russian Federation, according to which such expenses, even if they are economically justified, must be documented.

As an example, let’s look at the costs of insuring the collateral. When considering insurance issues in accounting, it is no coincidence that we focused your attention on the point of what type of insurance is considered to be insurance of the collateral. This issue is indeed very important from the point of view of taxation of the mortgagor’s profits. Let's try to explain what you should pay attention to here.

The fact is that insurance costs in Chapter 25 of the Tax Code of the Russian Federation are regulated by Article 263 of the Tax Code of the Russian Federation:

“The costs of compulsory and voluntary property insurance include insurance premiums for all types of compulsory insurance, as well as for the following types of voluntary property insurance:

1) voluntary insurance of means of transport (water, air, land, pipeline), including leased ones, the costs of maintaining which are included in;

2) voluntary cargo insurance;

3) voluntary insurance of fixed assets for production purposes (including leased ones), intangible assets, objects of unfinished capital construction (including leased ones);

4) voluntary insurance of risks associated with construction and installation work;

5) voluntary insurance of inventory;

6) voluntary insurance of crops and animals;

7) voluntary insurance of other property used by the taxpayer in carrying out activities aimed at generating income;

8) voluntary insurance of liability for causing harm, if such insurance is a condition for the taxpayer to carry out activities in accordance with the international obligations of the Russian Federation or generally accepted international requirements.”

We found out that insurance of the collateral is voluntary property insurance for the pledgor. Based on subparagraph 7 of the above article, we can conclude that if the costs of voluntary insurance are used by the taxpayer when carrying out activities related to generating income, then he has the right to take them into account when taxing profits. Moreover, paragraph 3 of Article 263 of the Tax Code of the Russian Federation establishes that expenses for the voluntary types of insurance specified in this article are included in other expenses in the amount of actual expenses.

But in a pledge agreement, the pledgor can be not only the debtor, but also a third party. Now let’s consider a situation where, for example, under a loan agreement, a third party’s car is provided as collateral. The pledged property must be insured, and always at the expense of the mortgagor. note, that civil legislation does not oblige the pledgee to compensate for the expenses of the third party pledgor for insurance.

The list of types of voluntary insurance specified in Article 263 of the Tax Code of the Russian Federation is closed, that is, it is not subject to expansion, and in relation to a car, it is stipulated that vehicles must be either owned or leased, but vehicle maintenance costs should be included in costs associated with production and sales.

When transferring property as collateral, this requirement is not met. Based on this, it turns out that in this case, car insurance does not meet the criteria of Article 263 of the Tax Code of the Russian Federation and, therefore, the costs of car insurance as a collateral cannot be taken into account for tax purposes.

Let us note one more nuance. Based on subparagraph 7 of Article 263 of the Tax Code of the Russian Federation, the costs of insuring the pledged item, provided that the pledge is associated with production activities aimed at generating income, are recognized when taxing the pledgor’s profit.

What if it was insured by the mortgagee? If the pledge agreement provides for a provision that the costs of insuring the pledged property are borne by the pledgee, but at the expense of the pledgor, then in such a situation, the amount of the insurance premium paid to the insurer may be recognized by the pledgee as its expenses, but then the amount of compensation received will be recognized as income.

When determining the taxable base for income tax, the mortgagor should pay attention to one more point. As collateral, organizations often provide the pledgee with fixed assets subject to depreciation. If the pledge agreement stipulates that the depreciable property remains with the pledgor and is used by him in the process of production activities, then depreciation on it is calculated and taken into account for tax purposes. In that case, there are no difficulties. And if the collateral acts as a pledge, that is, it is transferred to the pledgee, should depreciation be calculated on such property? First, let's look at PBU 6/01. According to paragraph 23 of this accounting standard:

“During the useful life of an object of fixed assets, the accrual of depreciation charges is not suspended, except in cases where it is transferred by decision of the head of the organization to conservation for a period of more than three months, as well as during the period of restoration of the object, the duration of which exceeds 12 months.”

As we can see, depreciation is not accrued only in two specified cases, and the transfer of an item as collateral is not indicated among them; therefore, for accounting purposes, depreciation by the mortgagor continues to be accrued on the mortgage.

Note!

If the amount of accrued depreciation on a fixed asset participating in the production process is reflected in the accounting records of an organization as part of expenses for ordinary activities (recall that such a requirement follows from paragraph 5 of PBU 10/99), then when mortgaging, the amount of accrued depreciation must be reflected as part of other expenses, since with a mortgage, the fixed asset subject to depreciation is not involved in production activities.

Now let's look at tax accounting, whether it is possible to take into account the amount of accrued depreciation when calculating taxable profit.

To resolve this issue, let us turn to Article 256 of the Tax Code of the Russian Federation, which gives the concept of what is meant by depreciable property for tax purposes.

According to paragraph 1 of this article:

“For the purposes of this chapter, depreciable property is recognized as property, results of intellectual activity and other objects of intellectual property that are owned by the taxpayer (unless otherwise provided for in this chapter), are used by him to generate income and the cost of which is repaid by calculating depreciation. Depreciable property is property with a useful life of more than 12 months and an original cost of more than 10,000 rubles.”

In other words, property will be recognized as depreciable for tax purposes if three conditions are met simultaneously:

· belongs to the organization by right of ownership;

· used to generate income;

· its useful life is more than 12 months and the initial cost exceeds 10,000 rubles.

At first glance, the answer is simple; depreciation on such a fixed asset can be taken into account to calculate the tax base for income tax. After all, it seems like all the conditions have been met. However, it is no secret that our tax legislation is quite confusing and it is difficult to make the right decision based on just one article of the Tax Code of the Russian Federation. Any issue related to taxation must be resolved comprehensively by an accountant. So it is in this situation. It seems that on the basis of Article 256 depreciation can be taken into account, however, this cannot be done on the basis of Article 257 of the Tax Code of the Russian Federation, according to paragraph 1 of which:

“For the purposes of this chapter, fixed assets mean part of the property used as means of labor for production and sale goods (performance of work, provision of services) or for the management of an organization.”

Indeed, when mortgaging, this requirement is not met, that is, the transferred property is not an object of labor, but acquires the status of collateral. Consequently, accrued depreciation amounts on such property should not be taken into account when calculating income tax.

And at the end of this section, we note that the pledgee, in addition to insurance costs, may also have other expenses associated with the pledged property. For example, expenses related to the maintenance of the collateral. Indeed, in accordance with Article 343 of the Civil Code of the Russian Federation, the pledgee who holds the pledge is obliged to take measures necessary to ensure the safety of the pledged property, unless otherwise provided by law or agreement. Therefore, a situation cannot be ruled out when the pledgee can rent premises to store the pledged item. Accordingly, he will incur certain expenses. Can the creditor making these expenses take them into account for tax purposes? And again let’s return to Article 252 of the Tax Code of the Russian Federation, which states that expenses are any expenses that are aimed at generating income. If these costs are economically justified and documented, then the mortgagee can take them into account when taxing. These expenses will be taken into account by him as part of non-operating expenses.

After all, you will agree that the justification for such expenses is obvious. The pledgee puts forward a pledge condition, as a rule, in connection with a loan or credit agreement, under which he receives interest, which is recognized in tax accounting as non-operating income. When receiving such income, he incurs expenses for renting the warehouse where the pledged item is located, therefore, in the situation under consideration, rental expenses are associated with receiving non-operating income, therefore, in tax accounting, expenses for renting a warehouse from the pledge holder are classified as non-operating expenses and are recognized in the manner established subparagraph 3 of paragraph 7 of Article 272 of the Tax Code of the Russian Federation.

You can find out more about the issues of accounting and tax accounting of property pledge transactions in the book of BKR-Intercom-Audit CJSC “Borrowed and credit funds. Bail and surety."

Posted on the website 12/05/2007

During the term of the loan agreement, the fair value of the collateral may undergo a qualitative change. This may be due to the need to sell the collateral within a limited time frame (liquidation sale). This article is devoted to the consideration of the relationship between the market and liquidation values ​​of the same object and the specific operational banking risks that are associated with this. Taking this ratio into account allows you to take a fresh look at the organization of collateral work in a bank and, if necessary, make appropriate adjustments to it. To do this, this article provides a number of useful data.

In the practice of bank lending, collateral is the main type of security for obligations. At the same time, much is said about the imperfection of the collateral legislation, which overly protects the mortgagor and prevents the rapid foreclosure of the collateral.

According to many experts, the development of lending to small and medium-sized businesses is most difficult because of this. One can also reasonably assume that mortgage lending, even despite the most detailed and “pro-banking” mechanism for foreclosure on collateral, carries “deferred risks” that are associated with the accumulation of a “critical mass” of defaults. One of the most serious lessons of the mortgage crisis in the United States in 2007, according to the authors, is that the massive offering of mortgage real estate “for sale” led to its illiquidity, a serious decrease in the value of this property, and even to a decrease in the investment attractiveness of entire areas.

It should be noted that some work to improve the collateral legislation is currently underway. As Anatoly Aksakov, president of the Association of Regional Banks “Russia”, deputy chairman of the State Duma Banking Committee, said: “Our task is to do everything possible so that in 2008 the law “On Pledge of Movable Property and Property Rights” comes into force” 1 .

However, both existing bankers and experts are already confidently stating that the adoption of this law, aimed primarily at legislating the need to register a pledge of movable property, will not solve all problems. It is noted that it is necessary to make changes to a number of normative acts of substantive and procedural law governing pledged obligations from the moment they arise until the fulfillment of the obligation or foreclosure on the pledged property.

The question arises about what should be the main vector of changes in the current collateral legislation, whether it can be limited only to procedural simplification of collection or, as the authors believe, the speed of procedural actions has no independent value, since speed of collection is by no means a panacea for all ills.

The problem lies deeper: in order to quickly sell something (and the essence of foreclosure lies in this, and not in obtaining an appropriate court ruling), it is necessary that someone be ready to quickly buy this “something”, and not just buy, and quickly pay with real money.

What this basis is and what problems actually need to be solved in order for the pledge to become not just one of the types of security for obligations, but a real mechanism for satisfying the monetary requirements of the creditor bank, the authors tried to explain in this article.

Valuation uncertainty: What is the fair value of collateral

In clause 6.4 of the Regulation of the Central Bank of the Russian Federation No. 254-P “On the procedure for the formation by credit institutions of reserves for possible losses on loans, on loan and equivalent debt” (hereinafter referred to as Regulation No. 254-P) it is determined that “... under the amount (cost ) collateral is understood as follows: for collateral (except for securities quoted by the organizer of trading on the securities market) - the fair value of the collateral.” Although Regulation No. 254-P does not contain a definition of “fair value,” it can be assumed with a high degree of probability, based on the terms of Russian legislation on valuation activities, that we are talking about the market value of the collateral.

This, in particular, is evidenced by the provisions of the Federal Valuation Standard “Purpose of Valuation and Types of Value” that recently came into force (FSO No. 2, approved by Order of the Ministry of Economic Development of Russia dated July 20, 2007 No. 255): “Market value is determined by the appraiser, in particular, in the following cases: ... when determining the value of the collateral, including a mortgage ... ". Based on the market value, the court, if there is a dispute between the pledgor and the pledgee, will set the initial sale price of the pledged property 2 .

At the same time, in accordance with FSO No. 2, “When determining the market value of an appraised object, the most probable price is determined at which the appraised object can be alienated on the valuation date on the open market in a competitive environment, when the parties to the transaction act reasonably, having all the necessary information, and The transaction price does not reflect any extraordinary circumstances, that is, when:

• one of the parties to the transaction is not obliged to alienate the object of valuation, and the other party is not obliged to accept execution;
• the parties to the transaction are well aware of the subject of the transaction and act in their own interests;
• the valuation object is presented on the open market through a public offer, typical for similar valuation objects;
• the price of the transaction represents a reasonable remuneration for the object of evaluation and there was no compulsion to complete the transaction in relation to the parties to the transaction on any part;
• payment for the valuation object is expressed in monetary form.

The possibility of alienation on the open market means that the property being valued is presented on the open market through a public offer, typical for similar properties, and the period of exposure of the property on the market must be sufficient to attract the attention of a sufficient number of potential buyers.

The reasonableness of the actions of the parties to the transaction means that the transaction price is the highest price reasonably achievable for the seller and the lowest price reasonably achievable for the buyer.

The completeness of available information means that the parties to the transaction are sufficiently informed about the subject of the transaction and act in an effort to achieve the best terms of the transaction from the point of view of each of the parties, in accordance with the full amount of information about the state of the market and the subject of the valuation available on the valuation date.

The absence of extraordinary circumstances means that each of the parties to the transaction has motives for completing the transaction, while there is no compulsion on the parties to complete the transaction.”

It is no coincidence that the authors provided an extensive quote from FSO No. 2, explaining the definition of market value, since it is simply impossible to compare these provisions with the real functioning of collateral as a type of institution for securing obligations.

The fact is that, being one of the varieties of the institution of securing obligations, the collateral transaction does not have its own value and significance.

In bank lending, collateral has a threefold nature, which changes during the loan term.

Thus, at the stage of consideration of a loan application, collateral is a necessary and/or sufficient condition for issuing a loan. At the stage of servicing and repaying the debt by the borrower and the administration of this process by the bank, the collateral carries the essence of disciplining the borrower, and also allows the bank to minimize its costs for the formation of reserves for possible losses. And finally, at the stage of collecting overdue debt, the pledge is a source of satisfaction of the bank’s claims to the borrower at the expense of funds received from the sale of the pledged item in the manner prescribed by law and the pledge agreement.

However, if we analyze the provisions of FSO No. 2 given above, we can absolutely definitely conclude that the collateral transaction does not fully comply with these provisions at any stage of the credit process.

So, for example, in the first two stages the object is not presented on the market in any way, especially through a public offer, and remuneration for the object is not provided in principle. However, it should be recognized that at these stages the fair value of the collateral is still close in meaning to the market value.

At the stage of collecting overdue debt, the value of the collateral is affected by a significantly larger number of circumstances, which are called “extraordinary”. In particular:

• there is an obligation of the pledgor to complete a transaction to sell the collateral;
• in the case of judicial foreclosure, there is obvious coercion of the mortgagor to complete the transaction;
• terms of exposure of the object, determined by the Federal Law “On Enforcement Proceedings” 3 , may be significantly less than necessary to attract the attention of a sufficient number of potential buyers.

The list of such circumstances that are obviously “extraordinary” can be continued.

The increase in the number of emergency circumstances affecting the market value at the stage of collection is obviously due to a change in the essence of the collateral - from the collateral itself it becomes a source of funds, the need and obligation of the mortgagor to sell the collateral appears, which was not observed in the first two stages of the credit process.

Accordingly, the essence implied in the term “fair value” of the collateral changes, and, therefore, its type must change.

In the practice of valuation activities, the term “liquidation value” is used for this purpose.

According to FSO No. 2, “when determining the liquidation value of a valuation object, an estimated value is determined that reflects the most likely price at which this valuation object can be alienated during the exposure period of the valuation object, which is less than the typical exposure period for market conditions, in conditions where the seller is forced to complete a transaction on alienation of property. When determining the liquidation value, in contrast to determining the market value, the influence of extraordinary circumstances forcing the seller to sell the subject property on terms that do not correspond to market conditions is taken into account.”

More detailed definitions are contained, in particular, in clauses 3.10 and 5.8 of the Standard of the Russian Society of Appraisers “Valuation bases other than market value” (STO ROO 20-03-96). “Liquidation value, or forced sale value, is the amount of money that can realistically be realized from the sale of property in a time frame too short to permit adequate marketing in accordance with the definition of market value. In some states, forced sale situations may include those involving an involuntary seller and buyer, or buyers who are aware of the seller's hardship."

“A forced sale involves a price conditioned by the sale of property in atypical conditions and reflecting, as a rule, an insufficient period of marketing, without proper openness and advertising, and sometimes indicating the involuntary behavior of the seller and/or sale under forced circumstances. For these reasons, the forced sale price, called forced sale value, is not a representation of market value.”

Thus, when considering the term “fair value of collateral” at the stage of collection of overdue debt for the purposes of Regulation No. 254-P, it should be identified with the term “liquidation value”.

This, in particular, is indicated by the restriction imposed on the object of pledge in order to recognize it as security from the point of view of Regulation No. 254-P: “Security of category II quality may include: ... pledge of things if there are ... sufficient grounds to believe that the corresponding the subject of pledge may be sold within a period not exceeding 180 calendar days from the date of occurrence of the grounds for foreclosure on the pledge.”

Accordingly, already at the stage of consideration of the loan application, the bank, according to the authors, is obliged to provide for such a change in the type of value of the collateral and to introduce appropriate provisions into the loan agreement and the collateral agreement, guaranteeing it against the risk of non-sale of the collateral within 180 days.

In addition, from the moment the loan is issued, the bank is obliged to “keep in mind” both values, market and liquidation, since a change in the type of value can occur regardless of the bank.

Unfortunately, this circumstance is not reflected in any way in Regulation No. 254-P.

In this regard, it seems relevant to analyze in detail the ratio of market and liquidation values ​​of the same object and the factors that determine this ratio.

Liquidation value models

The transition from the market value of the pledged item, determined at the conclusion of the pledge agreement, to the liquidation value of the pledged item is carried out by multiplying the market value by a reducing liquidation coefficient.

Art.liq. (T) = St. market (T) x K liquid., (1)

Where Art.liq. (T)- liquidation value of the collateral at time T;

Old market (T)- market value of the collateral at time T;

To liquid- liquidation coefficient, which determines the amount of reduction in the value of the pledged object due to atypical conditions for the sale of the pledged object.

The time dependence of market value is determined, in particular, by the dynamics of market conditions, obsolescence and wear and tear of the object, etc.

The atypicality of the conditions for the sale of the collateral object in the general case is due to two main factors:

• factor of limited sales time;
• factor of forced sale - a psychological aspect affecting the initiative of buyers.

Under these conditions, the liquidation ratio will be determined as follows:

To liquid = By time x To out, (2)

Where By time- coefficient taking into account the factor of limited sales time;

To the out.- a coefficient that takes into account the influence of the forced sale factor on the liquidation value of the object.

When, for example, the market conditions of the corresponding objects change over time, both K time and K ex. may change over time, which will naturally lead to a change in K liquid. However, this circumstance can be neglected to a first approximation, according to the authors.

For example, the work of Yu. Kozyr is devoted to taking into account the factor of limited sales time 4 , where three alternative models of the dependence of the liquidation value are considered without taking into account the discount caused by a forced sale, when the period of sale of the object is shorter than the typical exposure period when selling the object under normal conditions corresponding to the definition of market value.

Regarding the second factor, Yu. Kozyr concludes that it seems impossible to realistically analytically assess the magnitude of the impact of the second factor (the forced sale factor).

S. Dolgin, in addition to the limited period of exposure during the liquidation sale of an object, identified the following system of lower level factors that determine the forced sale factor 5 :

• market development;
• general investment attractiveness of the object;
• the absolute value of the market value of the object;
• market conditions on the valuation date;
• level of marketing.

In the series of works by Victor and Valery Galasyukov 6, 7 To assess the forced sale factor, it is proposed to rely on the concept of “price elasticity of demand” of the object being sold. At the same time, the authors obtained an expression for the coefficient K el.sp., which has a decreasing effect on the value of the market value of the object.

Perhaps, one cannot but agree that the elasticity of demand as a basic microeconomic concept allows us to take into account all factors of a lower level, which are given by S. Dolgin, however, this concept is focused on the “market in its pure form,” where pricing for objects of sale and purchase is determined only by the ratio supply and demand, and buyers purchase certain things mainly for their own needs, and not for subsequent resale.

An alternative approach was demonstrated by A. Rodin 8 , where the issue of motivating a potential buyer of an object is considered from the point of view of his receiving a certain rate of profit from the operation of purchasing an object in a period shorter than the typical period of exposure, and the subsequent sale of the object at market value in a period corresponding to the normal period of exposure, and using borrowed funds to finance this operation.

Since A. Rodin considers the case of liquidation of property during the bankruptcy of the owner and thus leaves out of consideration the issue of satisfying the interests of the creditor, the value that he calls “market” is in fact not the market value of the object in formula (1), but the market value already multiplied by K time, which is typical for the liquidation sale of pledged property.

In this case, it is apparently assumed that the potential buyer for the property is known. Under these conditions, his readiness to acquire an object is determined by two circumstances: the rate of profit, which he considers sufficient for himself to carry out this operation, and the cost of the resources that he attracts for this operation.

Obviously, a special case of this approach is the fairly widespread “on-lending”: issuing a loan to a company affiliated with a bank for the purchase of an object and using it as collateral.

Taking into account the above, we can conclude that taking into account the factor of forced sale of an object (K ex. in formula (2)) can be done in two alternative ways: taking into account the elasticity of demand (in this case, K ex. = K el.sp.) and taking into account speculative interest buyer (in this case K out = K sip).

Below we will consider in more detail and in order the influence of the factor of limited time for the liquidation sale of an object, as well as the influence of the factor of forced sale according to two alternative models by Victor and Valery Galasyukov and A. Rodin.

Factor of limited sales time

The formula describing the dependence of K time. from the time of liquidation sale of the object, we will present it in the following form 9 :

K time=(1+(i:m)) –(Td x m) , (3)

Where Td- discounting period (years);

m- number of interest accrual periods during the year (12 times);

i- the annual discount rate used in calculating the salvage value (expressed as a decimal fraction);

Тd = Tr – Tf , (4)

Where Tr- a reasonably long period of exposure of the object under typical sales conditions (years);

Tf- fixed period of exposure of the object under conditions of forced sale (years).

Figure 1 shows the relationship By time from the effective rate of return of the liquidation sale of the object and different values Td.

It is clearly seen that the factor of limited time for the liquidation sale of an object can have a significant impact on the ratio of the market and liquidation value of the same object.

It is significant that the degree of influence of the time factor increases significantly with i.

According to the authors of the methodology, “if the object of evaluation is the object of pledge and the pledge holder is a bank, then the annual discount rate used in calculating the liquidation value (i) is taken at the level of the annual rate on bank loans, which is determined based on market data” 10 .

However, according to the authors, this statement is not true. As the annual discount rate (i), it is necessary to take not the annual loan rate, the security of which is the pledge of this object, but some “effective rate of return on the liquidation sale of the object”, which also takes into account in the corresponding units of measurement “... a penalty, compensation for losses caused by delay in execution, as well as compensation for the necessary expenses of the pledgee for the maintenance of the pledged item and the costs of collection” (Article 337 of the Civil Code of the Russian Federation “Claim secured by a pledge”).

As a result, at current lending rates, for example, for small and medium-sized businesses, taking into account penalties and costs associated with moving, maintaining the collateral by the bank, as well as marketing costs, the “effective rate of return on the liquidation sale of the object” may exceed the rate the profitability of the loan itself more than doubles, which shifts the values ​​of i actually required by the bank to the area of ​​30–60% per annum.

From Figure 1 it is clear that the closer the value of Tf is to the value of Tr, the less the influence of the factor of limited time for selling an object on the liquidation value, and, conversely, the more significantly the value of Tf differs from the value of Tr, the more the liquidation value of the object will differ from its market value at the same point in time.

Let us dwell on the circumstances that, according to the authors, will determine the motivation of the creditor bank upon the arrival of “... the day the basis for foreclosure on the collateral arises” in accordance with Regulation No. 254-P.

It should be noted that there is neither a definition nor a list of “circumstances giving grounds for foreclosure of the pledge” in the document. Apparently, this should be done by the bank independently and reflected in the relevant internal documents and agreements (loan and collateral).

The exception is a mortgage, where these circumstances are enshrined in law and allow a very strict option in accordance with paragraph 2 of Art. 50 “Grounds for foreclosure on mortgaged property” of the Federal Law of July 16, 1998 No. 102-FZ (as amended on June 26, 2007) “On mortgage (real estate pledge)”: “Unless otherwise provided for in the mortgage agreement, foreclosure on property, pledged to secure an obligation fulfilled by periodic payments is allowed in case of systematic violation of the terms for making payments, that is, if the terms for making payments are violated more than three times within 12 months, even if each delay is insignificant.”

For example, consider the case when the borrower does not pay for three months (has not made three monthly payments), and this is considered a necessary and sufficient circumstance for foreclosure on the collateral.

In this case, the bank has 180 days to foreclose on the collateral. Only in this case, the bank has the opportunity not to incur unexpected expenses for additional reserves when issuing a loan in accordance with clause 6.5 of Regulation No. 254-P (if the amount of the reserve for possible losses was calculated based on the value of the collateral).

This circumstance is obvious and determines the range of values ​​of Tf - the fixed period of exposure of the valuation object in conditions of forced sale - in the range of Tf< 0,5 года (180 дней, 6 месяцев).

Let's consider the simplest option for collateral and the development of the situation, i.e. an option when the pledgor voluntarily puts the pledge up for sale in a specialized organization with which the bank has a corresponding agreement.

It should be noted that such a development is obviously not mandatory - rather, it is an ideal option for the bank. However, in a number of cases (but by no means always), by competently constructing a pledge agreement aimed at the fastest possible sale of the pledged property, the actual development of events can be brought closer to the ideal.

Now let's define the value Tr- a reasonably long period of exposure of the property being valued under typical sales conditions.

According to the authors, the possibility of a reasonable determination of such a value is one of the necessary conditions for meeting the requirement of Regulation No. 254-P, according to which “the provision of quality category II may include: ... collateral of things in the presence of a stable market for the specified collateral items …”.

In other words, if the bank cannot determine the value of Tr with an accuracy of 30 days, then there is no need to talk about the presence of a stable market for collateral, and such collateral cannot and should not be considered collateral from the point of view of Regulation No. 254-P (on this circumstance we We will dwell further below when considering the influence of the factor of price elasticity of demand for the collateral on the liquidation ratio).

At the same time, the bank is left with “a certain loophole” in the form of “... and (or) other sufficient grounds to believe that the corresponding collateral can be sold within a period not exceeding 180 calendar days from the date of occurrence of the grounds for foreclosure on the collateral.” According to the authors, this option corresponds to that described in the work of A. Rodin, i.e. option with a well-known buyer, well-informed about the collateral object and determined to receive a certain rate of speculative profit.

Let us assume that there are grounds for setting the value Tr = 1 year. This, according to the authors, is the upper estimate for the urban residential real estate market in Moscow, the optimal estimate for the suburban real estate market in the Moscow region and the minimum estimate for the market of special technological equipment (for example, offset printing machines), but is not applicable, for example, for the market of individual models cars - foreign cars with a short service life (less than three years), where Tr can be significantly less (6 months or less).

Therefore, in formula (4) the value Td = Tr – Tf should be taken for less than or equal to 6 months.

Here is a dilemma for the bank:

• focus on the minimum possible values ​​of Td in reality, for example, one month, and thereby underestimate the liquidation value, but minimize fines and penalties and thereby increase the liquidation value by reducing i; or
• focus on the maximum possible values ​​of Td = 6 months and thereby increase the liquidation value, while increasing fines and penalties and thereby reducing the liquidation value by increasing i.

• the bank - opportunities for adequate marketing (searching and notifying potential buyers about the fact of liquidation sale and trading with them, if necessary and possible);
• potential buyers - time to concentrate financial resources (if necessary, and to attract borrowed funds);
• the borrower who has made a late payment has time to correct the situation.

In addition, according to the authors, the second option minimizes the bank’s risk associated with the potential possibility of the mortgagor challenging the sale of the collateral due to the enslavement of the transaction (Clause 1 of Article 179 of the Civil Code of the Russian Federation “Invalidity of a transaction made under the influence of ... a combination of difficult circumstances”: “1. ... a transaction that a person was forced to make as a result of a combination of difficult circumstances on extremely unfavorable conditions for himself, which the other party took advantage of (a enslaving transaction), may be declared invalid by the court at the request of the victim." In this case, the unfavorable terms of the liquidation sale of the collateral arise directly not from the fact of the accelerated sale of the collateral, but from the fines and penalties defined in the loan agreement and the collateral agreement.

Summarizing the consideration of the influence of the time factor on the ratio of the market and liquidation values ​​of the same collateral, we can reasonably say that in reality we should expect that the liquidation value of the collateral (subject to the presence of a stable market for the above-mentioned similar objects) will be in the range of 60– 90% of market value. This is due to the need to accept an effective rate for the liquidation sale of the pledged object in the amount of at least 40% per annum and the time for selling the object in liquidation conditions is two or more times less than in normal market conditions.

Market approach based on demand elasticity factor

Now we will consider two models of the influence of the forced sale factor on the ratio of market and liquidation values ​​of the same object.

In accordance with the model proposed by Victor and Valery Galasyuk, if the data necessary to determine the coefficient of price elasticity of demand (Kel.sp.) is available, it can be determined by the formula 11 :

To el.sp. = th |ED|, (5)

Where th- hyperbolic tangent;

ED- price elasticity of demand.

This type of dependence was used by the authors, who proceeded from purely qualitative considerations: the hyperbolic tangent takes values ​​from zero and tends to unity, never reaching it. Therefore, if desired, one can accept another type of addiction with similar characteristics.

To calculate the actual price elasticity of demand, you can use the following formula 12 :

Where ED- price elasticity of demand;

Q1- the initial value of demand for the object;

Q2- the final amount of demand for the object;

P1- market value of the object;

P2- liquidation value of the object.

Depending on the price elasticity of demand, the following types of demand are most often distinguished:

• absolutely inelastic - |ED| = 0, when the quantity demanded does not change when the price changes;
• inelastic - 0< |ED| < 1, когда относительное изменение величины спроса меньше, чем относительное изменение цены;
• with unit elasticity - |ED| = 1, when the relative change in quantity demanded is equal to the relative change in price;
• elastic - |ED| > 1, when the relative change in quantity demanded is greater than the relative change in price;
• absolutely elastic - |ED| = u, when an infinitesimal change in price leads to an infinitely large change in the quantity demanded.

At the same time, absolutely elastic and absolutely inelastic demand is almost impossible to meet in real economic conditions.

Thus, the greater the value of the price elasticity coefficient of demand, the more insignificant, other things being equal, the value of the liquidation value of the object differs from the value of its market value.

In cases where there is no reliable data to calculate the price elasticity of demand, the authors propose to use a simplified procedure for determining the price elasticity of demand coefficient shown in Table 1.

Table 1 represents the simplest version of the dependence K el.sp. from two parameters, each of which takes three values. If desired, you can increase both the number of parameters and the number of possible values, and thereby increase the accuracy of determining K el.sp.

Returning to the condition for classifying the collateral as collateral from the point of view of Regulation No. 254-P (“... in the presence of a stable market for the specified collateral ..."), one should ask the question whether the market for objects with high specialization and a small number of buyers can be considered stable. The answer, according to the authors, is unequivocal - it’s impossible. Moreover, according to the authors, all objects with an elasticity of demand for them worse than “weakly inelastic” are unacceptable from the point of view of liquidity, i.e. with a demand elasticity coefficient less than 0.68.

As an example of using the data in Table 1, we will conduct a comparative qualitative analysis of the elasticity of potential demand in different segments of the Moscow and Moscow region real estate market.

Qualitative analysis of the Moscow and Moscow region real estate market from the point of view of demand elasticity

The market for Moscow and Moscow region real estate is the simplest and most understandable for a qualitative study of the elasticity of demand according to the parameters given in Table 1. Obviously, the concept of “developed” is fully applicable to this market, and, therefore, there is every reason to seriously consider the corresponding objects as collateral.

Within this market, two macro-segments can be distinguished - the residential real estate macro-segment, consisting of urban and suburban real estate segments, and the commercial real estate macro-segment, consisting of retail, office, warehouse, industrial and special purpose segments (hotels, restaurants, fitness centers, etc. ) real estate. Within each segment, classes, subclasses, etc. are distinguished, consideration of the elasticity of demand within which is beyond the scope of qualitative analysis.

According to the “number of buyers” criterion, the breakdown of these segments into three groups, according to the authors, is as follows:

1) “significant” - urban residential real estate. Even from the most general considerations, it is clear that of all the identified segments, the number of buyers in this segment is maximum and significantly exceeds the number of potential buyers in the other segments separately;

2) “average” - suburban residential real estate, office real estate, retail real estate. The number of potential buyers in these segments is less than in the urban residential real estate segment, but higher than in the warehouse, industrial and special real estate segments;

3) “minor” - warehouse, industrial, special real estate. According to the authors, the number of potential buyers in these segments is smaller than in all others.

The “degree of specialization” of all objects in all segments is assessed by the authors as “significant”, which is actually quite obvious, since, for example, the use of suburban real estate as urban is excluded, and its use as industrial, although it makes some sense, but , at least, is not typical.

Accordingly, if we use the criteria given in Table 1, then:

• urban residential real estate is characterized by moderately elastic demand and an elasticity coefficient of 0.94;
• suburban residential real estate, office and retail real estate are characterized by slightly inelastic demand and, accordingly, an elasticity coefficient of 0.68;
• for warehouse, industrial and special real estate - absolutely inelastic demand and zero elasticity coefficient, which, as noted above, has no practical meaning. Apparently, in this case it is necessary to use an elasticity coefficient of 0.16.

Despite its simplicity, the use of Table 1 requires caution, since in the presence of more detailed information characterizing the price distribution of demand, calculation using formulas (5) and (6) can give both significantly higher and significantly lower values ​​of the demand elasticity coefficient compared to their “frontal” calculation based on the data in Table 1.

As an example, let’s take a closer look at the suburban real estate market segment near Moscow.

An example of using price elasticity of demand to analyze the acceptability of suburban real estate as collateral

Data on the relationship between supply and demand on the suburban real estate market near Moscow in 2006 were borrowed from an article by I. Terentyev 13 (Table 2).

Table 2 shows that the balance of supply and demand is observed in the price segment of $400–600 thousand, in the segments up to $200 and 200–400 thousand, demand significantly exceeds supply, and in the segment over $800 thousand, on the contrary, supply seriously exceeds demand.

Consequently, when the price of an object decreases, for example, from $1200 thousand to 900 thousand, i.e. by a significant amount of 25%, there will be no increase in demand, and accordingly, an increase in the liquidity of the object cannot be expected - demand is inelastic or even completely inelastic.

A similar conclusion can be made regarding the decrease in the price of an object within all price segments. Therefore, to ensure elasticity of demand and increase the liquidity of the property, one should move to lower price segments.

So, for example, lowering the price of an object from $900 thousand to 700 thousand will increase demand from 11 to 24%, from $900 thousand to 500 thousand - from 11 to 49%, etc., i.e. more significant than the relative price reduction. Consequently, demand will become elastic, and it will be possible to count on an increase in the liquidity of the object.

Table 3 shows data for calculating demand elasticity coefficients for different market and liquidation values ​​of suburban real estate properties near Moscow using formulas (5) and (6) and data from Table 2.

Table 3 shows that in all cases, moving to one price segment lower makes demand highly elastic, and a further reduction in price should be considered inappropriate, since, even despite a further increase in the modulus of demand elasticity, the increase in the demand elasticity coefficient is already negligible due to the definition the form of the relationship between them in the form of a hyperbolic tangent.

Apparently, this circumstance is a limitation of the model, since even from the most general ideas it is clear that a significant - by two or three price segments - reduction in the offer price should lead to the inclusion of new target buyers - speculative investors in real estate - and thereby speed up the liquidation process implementation of the object. However, strictly speaking, the data in Table 2 do not take into account the demand from such buyers, but are based on calm market conditions - when buyers purchase only what they need for life and do not intend to overpay, and sellers do not intend to speed up the sales process real estate by reducing prices.

Nevertheless, it is possible that a more suitable form of dependence of the elasticity coefficient on its modulus should be selected.

Thus, the calculation of specific values ​​of K el.sp. based on data on the price elasticity of demand gives significantly different values ​​than 0.68 obtained by the authors in a qualitative analysis based on the data in Table 1.

Moreover, with proper consideration of price elasticity, the values ​​of K el.sp. significantly higher than 0.68, and, therefore, the use of such a value can lead to an unjustified understatement of the sales price. At the same time, using the value of K el.sp. = 0.68 should be considered justified within the upper price segment and with market values ​​of objects up to $1,200 thousand, which will move the object one price segment lower. If the market value of the object is even higher, it is necessary to apply To el.sp. even less than 0.68, which will provide the same result.

Thus, even from these qualitative considerations, the following conclusions can be drawn:

• the most acceptable from the point of view of liquidity of collateral is suburban real estate near Moscow with a market value of up to $800 thousand - in this price segment, the relative increase in demand will always be more significant than the relative decrease in price;
• When pledging suburban real estate near Moscow with a market value of more than $1,000 thousand, one should take into account the need to significantly reduce the liquidation sale price - up to 50% or more, which in absolute figures is $300–500 thousand or more. Only under this condition should we expect accelerated growth in demand.

An alternative to the market “approach with a speculative buyer”

As stated above, this approach presupposes the presence of a buyer known to the mortgagee, who pursues the goal of obtaining an interesting rate of profit from the speculative resale of this object, about which he is well aware. For example, such buyers may be specialized resellers: realtors, car dealerships, competitors of the mortgagor, etc.

The use of this approach is, in fact, no alternative in the case of low - less than 0.68 - demand elasticity coefficients, determined from Table 1.

Based on data from the work of A. Rodin 14 we can write the following expression for the coefficient that reduces the market value of an object due to the need to take into account the speculative interest of the buyer (Ksip):

Ksip = (1 – (in.p. (Td)) / (1 + (icredit (Td)), (7)

Where icredit. - interest rate for borrowing funds;

in.p.- the investor’s rate of return, in this case - income minus expenses on funds raised, but not taking into account any other expenses of the investor associated with the implementation of the project.

Td = Tr – Tf- in this case, represents the period for raising borrowed funds, Tr and Tf - as in formula (4), a reasonably long period of exposure of the object of evaluation in typical conditions of sale and a fixed period of exposure of the object in conditions of forced sale, respectively.

Table 4 shows the results of calculating the dependence of the coefficient taking into account the speculative interest of the buyer (K ​​sip) on the rate and period for raising borrowed funds, as well as the rate of profitability of the project for the investor - buyer.

Table 4 shows that taking into account the buyer’s speculative interest as an alternative to the elasticity of demand in the market can also lead to a significant reduction in liquidation value, and the degree of reduction in market value is greater, the more speculative the buyer’s intention is (high, compared to the attraction rate, profitability rates) , the longer the period for raising borrowed funds (i.e., the stronger the reasonably long period of exposure of the property being assessed under typical conditions of sale exceeds the fixed period of exposure of the property under conditions of forced sale), and also the higher the rate of raising borrowed funds.

Influence of factors of limited time for liquidation sale of an object and forced sale

Now let's return to formula (2) and combine the influence of both considered factors into one value of the liquidation coefficient.

From the above data it follows that joint consideration of both factors discussed above can, even with formal satisfaction of the condition of the presence of a developed market for the corresponding objects, give values ​​of the liquidation coefficient less than 0.50. Moreover, such values ​​of the liquidation ratio should be considered expected.

This means that even if the condition “the market value of the collateral is twice the size of the loan debt when issuing the loan” (the condition of the minimum required reserve for possible losses) is ensured, the funds that will be received during the liquidation of the collateral-thing are with a high degree of the probability may not be sufficient to satisfy at least all the creditor's claims.

However, if such a possibility exists, one more important circumstance should be kept in mind, limiting the applicability of a pledge in the form of security from the point of view of Regulation No. 254-P. Namely, in accordance with clause 6.5 “Collateral cannot be taken into account for the purposes of these Regulations if: ... there are grounds for recognizing the impossibility of realizing the rights arising from the presence of collateral for a loan without significant loss of the amount (value) of the collateral.”

The term “significant loss of value” is not defined in Regulation No. 254-P, but it can be assumed that a double loss in value of collateral is not yet “significant.” This, in particular, is indirectly indicated by the compliance of the minimum reserve for possible losses with a two hundred percent ratio of the market value of the collateral and the amount of loan debt.

However, a greater ratio between the market value of the collateral and the amount of loan debt should also be treated with caution.

This is due to the fact that in the event of a judicial foreclosure, the court may refuse to foreclose on the pledge on the basis of a clear disproportion to the demands of the pledgee to the value of the pledged property. The same may be the result when appealing the fact of sale of the collateral by the mortgagor and in case of out-of-court collection. In this case, the court will proceed from the need to determine the initial sale price of the pledged property, which, we recall, is established based on the market value 15 .

In the article by T.S. Lvovoy 16 Two examples of such refusals are given: in one case, the value of the pledged property exceeded the size of the claims by 3.0 times, in the other - by 3.9 times.

Therefore, if the pledge agreement provides for a judicial procedure for foreclosure on the pledged property or such a procedure may arise at the request of the mortgagor, the bank should proceed from the maximum permissible ratio of the market value of the pledge and the amount of claims equal to 300%.

Accordingly, it is risky to use calculated values ​​of liquidation value, which are more than three times lower than the market value.

On the benefits of regular revaluation of the value of collateral

Clause 6.4 of Regulation No. 254-P determines that “the fair value of collateral ... is determined by the credit institution on an ongoing basis, but at least once a quarter. Changes in the fair value of the collateral are taken into account when determining the amount of the reserve...”

Often, banks treat this requirement formally (except for securities), and the main motivating factor for revaluing the collateral is precisely the need to adjust or confirm the amount of the reserve.

Meanwhile, the market value of many types of collateral changes over time, which can significantly affect the ratio of market and liquidation values, and this circumstance should be taken into account starting from the moment the loan is issued.

There are at least two main factors that can influence the time dependence of market value.

Firstly, this is market conditions and its forecast for the period of validity of the pledge agreement.

As confirmation, we can cite the “avalanche-like” increase in the value of residential real estate in Moscow, which contradicted all forecasts, in 2006. Obviously, at that moment, the influence of this factor largely neutralized the influence of the liquidation sale factor on the value of the corresponding collateral.

Obviously, the increase in market value will be influenced, for example, by such factors as the introduction of additional import duties on foreign cars, etc.

In addition, we can confidently predict, for example, a constant and continuous increase in the cost of passenger cars, since the opposite - a decrease in prices - has never been observed.

The factor of obsolescence and wear and tear of the collateral constantly acts in the direction of lowering the market value.

For example, the amount of natural physical wear and tear of motor vehicles (AMV) can be determined in accordance with the “Methodological Guide...” 17 .

In particular, for passenger cars owned by individuals and used by them for personal purposes, in accordance with this “Methodological Guide ...”, the amount of basic natural physical wear and tear will range from 5 to 8% per year, depending on the class and country of manufacture. It should be especially noted that these data were obtained based on the analysis of large amounts of information on offers of cars for sale, and not on the basis of mathematical models. Consequently, they are not speculative, but rather objective.

Amendments to the operating conditions of passenger cars, which increase wear, increase it in the range from 1.00 to 1.45 times.

Obsolescence can have an even stronger impact on the market value of certain types of objects. For example, the market value of computer and office equipment decreases several times in two to three years, and in one year this decrease can be more than 50%. This is explained by the constant updating of model ranges.

These effects, perhaps so significant when analyzing the market value of the collateral, have a significantly stronger impact on its liquidation value.

There are also cases when the sale of certain types of food products was unexpectedly limited or completely prohibited by the state (Georgian and Moldavian wines, vodka, Polish meat, etc.). Obviously, in such conditions the market value of the collateral may be reset to zero.

Concluding remarks

The above data and considerations, according to the authors, clearly demonstrate the fact that collateral work in a bank cannot be built only on the basis of determining the market value of the collateral object.

For example, on the forum of the leading appraisal portal Appraiser.ru, among others, the following question was discussed: “When accrediting an appraisal company, the bank requires that a provision be included in the relevant agreement that the appraiser undertakes to compensate the difference between the value of the collateral indicated in the appraisal report and the amount actually received by the bank in the process of foreclosure on the collateral. What to do in this situation?

Taking into account the data presented in this article, it becomes quite obvious that the “factor of breakdown” of the value of the collateral into “market”, “liquidation” and “fair” is manifested in this case in full force. It is obvious that the appraiser means “market” value, the bank speaks of “liquidation” value, and Regulation No. 254-P speaks of “fair” value.

At the same time, as evidenced by the above data, an appraiser (or a bank independently) can brilliantly and reliably determine the market value of the collateral, but in reality it will be impossible to sell it at the appropriate price in a short time, and it is impossible for objective reasons, not due to the fault of the appraiser (or bank employee).

This obviously will not happen if the following conditions are met.

1. Liquidation value should receive a full place and equal to market value in the collateral work of banks.

2. In Regulation No. 254-P it is necessary to define the term fair value of a pledged item as a value that:

• equivalent to “market” when concluding and properly executing a loan agreement;
• is equivalent to “liquidation” when circumstances arise that give grounds for foreclosure on the pledge.

It is also possible to reformulate the condition of the minimum reserve for possible losses, based on the requirement “the liquidation value of the collateral item is not less than the amount of all obligations of the borrower.” Accordingly, banks will have to write appropriate internal documents that formalize the algorithm for determining the liquidation value. However, according to the authors:

• firstly, it will bring nothing but benefit;
• secondly, the source information for this is given in this article and all that remains is to use it creatively;
• thirdly, this will make it possible to “cut off” low-liquid types of collateral already at the stage of considering a loan application; it is even possible that banks can specialize in their work with collateral, in respect of which they have a complete understanding of how and how to sell them, and not according to the principle “we take everything, as long as the cost doubles the amount of debt”;
• fourthly, this will make it possible to include in pledge agreements provisions regulating the sale price of the pledge by the pledgee on a voluntary basis or by the bank when transferring the object to the pledgee, etc., which will increase the degree of diligence of the pledgor when concluding a pledge transaction.

Other arguments can be made in favor of this.

Both market and liquidation values ​​must be determined at the time the loan is issued, and then on a regular basis, but at least once a quarter. This, at a minimum, will allow the bank to reasonably require the borrower to provide additional collateral for the loan in the event of a critical decrease in the liquidation value of the collateral.

Ideally, appropriate changes should be made to the collateral legislation in terms of determining the initial value of the auction in the case of a judicial foreclosure procedure that is not equal to the market value, but to the liquidation value - this circumstance, according to the authors, will have a greater effect than, for example, mandatory registration of a collateral of movable property.

Moreover, taking this into account, the pledge of goods in circulation, which is hated by many as a liquid by definition, type of collateral, may appear in a qualitatively different form.

In fact, with adequate analysis, it may turn out that it is easier and cheaper to organize high-quality control over the availability and movement of goods in circulation than to incur significant losses associated with the non-sale of, for example, warehouse and industrial real estate. 1 Zamulina I. The new law on collateral will reduce interest rates by an average of 2–3% // RBC.Credit. 07/12/2007.

2 Review of the practice of considering disputes related to the application by arbitration courts of the norms of the Civil Code of the Russian Federation on pledge // Appendix to the letter of the Supreme Arbitration Court of the Russian Federation dated January 15, 1998 No. 26.

3 Federal Law of October 2, 2007 No. 229-FZ “On Enforcement Proceedings” (comes into force on February 1, 2008).

4 Kozyr Yu. Estimation of liquidation value, http://www.appraiser.ru/default.aspx?SectionId=41&Id=1610

5 Dolgin S. Procedure (features) for assessing the liquidation value of the bankruptcy estate, http://www.arni.ru/arni/doc/stat/170402_dolgin.htm

6 Galasyuk Viktor V., Galasyuk Valery V. A method of taking into account the elasticity of demand by price when determining the liquidation value of objects, http://www.appraiser.ru/default.aspx?SectionId=41&Id=1608

7 Galasyuk Viktor V., Galasyuk Valery V. Methodological recommendations for the assessment of property and property rights in conditions of forced sale and a shortened exposure period, http://www.appraiser.ru/default.aspx?SectionId=41&Id=1595

8 Rodin A. Methodology for assessing liquidation value // Questions of assessment. 2003. No. 1.

9 This type of dependence was used in the works of Victor and Valery Galasyukov. A similar type of dependence was used by Yu. Kozyr in one of the three models he considered.

10 Galasyuk Viktor V., Galasyuk Valery V. Methodological recommendations for the assessment of property and property rights in conditions of forced sale and a shortened exposure period, http://www.appraiser.ru/default.aspx?SectionId=41&Id=1595

11 Galasyuk Victor V., Galasyuk Valery V. A method of taking into account the elasticity of demand by price when determining the liquidation value of objects, http://www.appraiser.ru/default.aspx?SectionId=41&Id=1608

12 Samuelson Paul. A., Nordhaus William D. Economics. - Per. from English - M.: Publishing house "BINOM", 1997. P. 99–106.

13 Terentyev I. Meters of variable directions. Demand for suburban real estate is shifting to economy class // Kommersant. 03/02/2007. No. 33. P. 20.

14 Rodin A. Methodology for assessing liquidation value // Questions of assessment. 2003. No. 1.

15 Review of the practice of considering disputes related to the application by arbitration courts of the provisions of the Civil Code of the Russian Federation on pledge // Appendix to the letter of the Supreme Arbitration Court of the Russian Federation dated January 15, 1998 No. 26.

16 Lvova T.S. Features of legal support for secured lending // Bank lending. 2007. No. 3. pp. 77–78.

17 Methodological guidelines for determining the cost of motor vehicles, taking into account natural wear and tear and technical condition at the time of presentation. RD 37.009.015-98 with amendments No. 1, 2, 3, 4, http://www.appraiser.ru/default.aspx?SectionId=187&Id=930

Al-r A. Slutsky
Slavic Financial Center, President, Ph.D.

Anat. A. Slutsky
Slavic financial center

Collateral assessment and determining the market value of the collateral makes it possible to establish a fair relationship between the value of the pledged property and the size of the loan, and also helps to prevent disagreements between the parties to the transaction that arise when foreclosure on the collateral and partial fulfillment of the borrower’s obligations using the collateral. As mortgages and other types of lending develop, such a service as collateral assessment. When receiving a loan, an independent collateral assessment creates a solid and fair legal basis for further interaction between the lender and the borrower and now, as a rule, banks do not draw up loan agreements without a preliminary assessment of the mortgaged property.

Pledge as a way to ensure the fulfillment of obligations

The most effective way to ensure the fulfillment of obligations is a pledge, since the satisfaction of the creditor's claims through the pledge does not depend on the financial condition of either the debtor or the guarantor, which makes it possible to actually fulfill the debtor's obligations to the creditor at the expense of the property that is the subject of the pledge.

According to Art. 334 of the Civil Code of the Russian Federation, by virtue of a pledge, a creditor under an obligation secured by a pledge (pledgee) has the right, in the event of failure by the debtor to fulfill this obligation, to receive satisfaction from the value of the pledged property preferentially before other creditors of the person who owns this property (the pledgor), with exceptions established by law. The rule on priority in foreclosure also confirms the advantage of collateral over other methods of securing obligations.

In order for a pledge to be a truly appropriate and effective method of security, it is necessary to pay attention to the following important points when considering specific property as a subject of pledge.

1. In accordance with Art. 335 of the Civil Code of the Russian Federation, the pledgor of a thing can be its owner or a person who has the right of economic management over it, and the pledgor of the right can be the person who owns the pledged right. Accordingly, the potential mortgagor must provide the lender with documentary evidence of his rights to the property offered as collateral. Such documents may be: an agreement on the basis of which the property was acquired (rights transferred), with evidence of the transfer of ownership of the property in the manner prescribed by Art. Art. 223, 224 of the Civil Code of the Russian Federation (transfer and acceptance certificate, invoice, bill of lading, other document of title depending on the terms of the contract), or transfer (emergence) of rights; for property (rights) subject to state registration - a corresponding registration certificate.

In practice, a situation often arises when the mortgagor cannot provide the agreement that is the basis for the acquisition of property due to its loss over the years. In this case, Art. 234 of the Civil Code of the Russian Federation on acquisitive prescription. According to this article, a person - a citizen or a legal entity - who is not the owner of property, but who conscientiously, openly and continuously owns either his own real estate for fifteen years or other property for five years, acquires the right of ownership of this property.

In accordance with paragraph 4 of Art. 234 of the Civil Code of the Russian Federation during the period of acquisitive limitation in relation to things held by a person from whose possession they could be claimed in accordance with Art. Art. 301 and 302 of the Civil Code of the Russian Federation, begins no earlier than the expiration of the statute of limitations for the relevant requirements.

In paragraph 17 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated February 25, 1998 N 8, it is stated that the period of acquisitive limitation begins no earlier than the expiration of the statute of limitations on the repossession claim of the owner or other title holder.

The statute of limitations applicable to these requirements is three years (Article 196 of the Civil Code of the Russian Federation) and in accordance with paragraph 1 of Art. 200 of the Civil Code of the Russian Federation begins to flow from the day when the person whose right is violated learned or should have learned about the violation of his right. Based on the norm of paragraph 1 of Art. 200 of the Civil Code of the Russian Federation, it is not possible to definitely establish the moment when the limitation period begins; this issue is evaluative and must be resolved in each case, taking into account specific circumstances. Moreover, as a rule, these circumstances are known only to the potential plaintiff, and the person who considers himself the owner of the property due to the rules on acquisitive prescription does not have information about when the owner (other owner) learned about the violation of his rights. Consequently, by studying documents confirming ownership of property, it is impossible to definitely determine the moment when a person’s right of ownership arose due to acquisitive prescription. At the same time, taking into account the above, for the purpose of confirming a person’s ownership of movable property, it should be assumed that the person claiming the property in accordance with the rules on acquisitive prescription must provide evidence of ownership of the specified property (as a rule, these are accounting documents) for at least eight years.

When accepting lease rights or other rights to someone else's property as collateral, it should be remembered that such collateral is not allowed without the consent of the owner or the person who has the right of economic management over it, if the law or agreement prohibits the alienation of this right without the consent of these persons.

2. In accordance with Art. 336 of the Civil Code of the Russian Federation, the subject of pledge can be any property, including things and property rights (claims), with the exception of property withdrawn from circulation, claims inextricably linked with the personality of the creditor, in particular claims for alimony, compensation for damage caused to life or health, and other rights, the assignment of which to another person is prohibited by law. The pledge of certain types of property, in particular the property of citizens, which is not subject to foreclosure, may be prohibited or limited by law. The list of types of property that cannot be foreclosed on is contained in Art. 446 of the Civil Procedure Code of the Russian Federation. Article 51 of the Fundamentals of the Legislation of the Russian Federation on Culture (approved by the Supreme Council of the Russian Federation on October 09, 1992 N 3612-1) provides that cultural values ​​stored in state and municipal museums, art galleries, libraries, archives and other government organizations cannot be the subject of collateral. culture. According to Art. 63 of the Federal Law “On Mortgages (Pledge of Real Estate)” mortgages are not allowed:

Land plots in state or municipal ownership;

Parts of a land plot, the area of ​​which is less than the minimum size established by the regulations of the constituent entities of the Russian Federation and regulations of local governments for lands for various purposes and permitted uses.

The list of property, the pledge of which is limited, was approved by Decree of the President of the Russian Federation of February 22, 1992 N 179. The List contains property the free sale of which is prohibited. According to Art. 129 of the Civil Code of the Russian Federation, such property can belong only to certain participants in the turnover, or its presence in circulation is permitted with a special permit. So, the pledge of the specified property itself is not prohibited, but the pledgee may have difficulties in foreclosure on such property, since the circle of its acquirers is limited. In accordance with Decree of the Government of the Russian Federation dated December 10, 1992 N 959, supplies of the specified property (products) are carried out to consumers who have permission to use it in the Russian Federation, or on the basis of quotas.

Let's look at some types of collateral that are quite widespread in banking practice.

As security for the fulfillment of obligations to repay the loan, property rights to funds that will be credited to the mortgagor’s account in the future are accepted as collateral. As a rule, such collateral is used if the payer of the funds is a fairly well-known and financially reliable organization. Despite the widespread use of this type of security, it should be remembered that the agreement under which these rights are accepted as collateral is invalid in accordance with Art. 168 of the Civil Code of the Russian Federation, since it contradicts Art. 336 Civil Code of the Russian Federation. Rights to funds may be subject to pledge to the extent that rights under a bank account agreement can be assigned, and during the period of validity of the account agreement, partial assignment of rights under a bank account agreement is impossible. Thus, the pledge of property rights in relation to funds in the account can only take place in relation to those rights that arise after termination of the bank account agreement (in relation to the balance of funds in the account). This position is based on arbitration practice regarding the possibility of assigning claims during the validity period of a bank account agreement (see, for example, Resolutions of the Presidium of the Supreme Arbitration Court of the Russian Federation dated 05.27.1997 N 584/97, dated 04.29.1997 N 4966/96, dated 29.04 .1997 N 1435/97).

Pledgors who own the exclusive right to a trademark offer banks rights to the trademark as security for the fulfillment of their obligations to repay the loan. At the same time, the Law of the Russian Federation of September 23, 1992 N 3520-1 “On Trademarks, Service Marks and Appellations of Origin of Goods” does not directly provide for the possibility of transferring rights to a trademark as a pledge. According to Art. Art. 25, 26 of this Law, the transfer of the exclusive right to a trademark is possible only in the form of an assignment, and the transfer of the right to use a trademark is possible under a license agreement. The law does not provide for other forms of transfer of a trademark or the right to use it. Thus, to exercise exclusive rights to a trademark or the right to use it in accordance with Art. 350 of the Civil Code of the Russian Federation is impossible. Consequently, it is impossible to accept these rights as collateral.

Quite often, in addition to securities, the specifics of the pledge of which will be discussed below, the pledger’s share in the authorized capital of a limited liability company is offered as collateral.

Article 22 of Federal Law No. 14-FZ dated 02/08/1998 “On Limited Liability Companies” (hereinafter referred to as the LLC Law) gives a company participant the right to pledge his share (part of the share) in the authorized capital of the company to another company participant or a third party. The pledge of a share in the authorized capital of an LLC to a third party is possible only by decision of the general meeting of the company's participants, adopted by a majority vote of all the company's participants, unless the need for a larger number of votes of participants to make such a decision is not provided for by the LLC's charter. A share in the authorized capital of an LLC cannot be pledged if the company's charter contains a ban on such transactions. Thus, the decision on the issue of accepting a share in the authorized capital of an LLC as collateral should be preceded by a legal examination of the LLC’s charter to determine whether it contains the above provisions.

It is also necessary to check the payment by the company participant for the share belonging to him, transferred as collateral, since in accordance with clause 3 of Art. 21 of the LLC Law, the share of a company participant can be alienated only to the extent that it has been paid for. If an incompletely paid share is pledged, the subject of the pledge will be determined based on the actually paid share of the LLC participant.

3. In accordance with paragraph 3 of Art. 334 of the Civil Code of the Russian Federation, a pledge arises by virtue of an agreement, as well as on the basis of the law upon the occurrence of the circumstances specified in it, if the law stipulates what property and to ensure the fulfillment of what obligation is recognized as being pledged.

The emergence of a pledge on the basis of law is provided for, for example, by Art. 488 of the Civil Code of the Russian Federation: goods sold on credit, from the moment of their transfer to the buyer and until the moment of full payment, are considered to be pledged by the seller to ensure the fulfillment by the buyer of his obligation to pay for the goods, unless otherwise provided by the purchase and sale agreement. This rule should be followed when conducting a legal examination of the pledge. When analyzing the agreement that is the basis for the acquisition of the property offered as collateral, it is necessary to pay attention to the payment procedure provided for in the agreement. If at the time of pledge the property has not been paid by the buyer (mortgagor), that is, there is a pledge by force of law, the pledge of this property as security for repayment of the loan will be a subsequent pledge. According to Art. 342 of the Civil Code of the Russian Federation, if property that is pledged becomes the subject of another pledge to secure other claims (subsequent pledge), the claims of the subsequent pledgee are satisfied from the value of this property after the claims of previous pledgeholders. Thus, when accepting property as a subsequent pledge, it is necessary to assess the size and timing of the claims of previous pledgees and correlate them with the assessment of the subject of pledge, so that the subsequent pledgee has enough funds from the sale of the subject of pledge.

Subsequent pledges are permitted unless prohibited by prior pledge agreements. Violation of this requirement entails recognition of the subsequent pledge as invalid under Art. 168 Civil Code of the Russian Federation. To reduce the risk of loss of collateral for this reason, it is necessary to require the mortgagor to provide documents confirming the absence of an encumbrance in the form of a pledge on the property offered as collateral (extract from the book of pledges, extract from the Unified State Register of Rights to Real Estate). In accordance with paragraph 3 of Art. 342, the pledgor is obliged to inform each subsequent pledgee of information about all existing pledges of this property, provided for in paragraph 1 of Art. 339 of the Civil Code of the Russian Federation, and is responsible for losses caused to mortgagees by failure to fulfill this obligation.

According to paragraph 5 of Art. 488 of the Civil Code of the Russian Federation, you can require the mortgagor to include in the agreement under which the property was purchased a condition that until full payment the property is not pledged to the seller.

Based on the law, from the moment of state registration of the borrower’s ownership of the corresponding residential house or apartment, a mortgage arises on a residential house or apartment acquired or built in whole or in part using credit funds from a bank or other credit organization (Clause 1, Article 77 of the Federal Law “On Mortgage” (mortgage of real estate)" as amended, put into effect on January 11, 2005 by Federal Law of December 30, 2004 N 216-FZ).

4. Article 339 of the Civil Code of the Russian Federation establishes the requirement to conclude a pledge agreement in writing, which can be observed in a written agreement drawn up in the form of a single document, as well as in the case of the exchange of documents between the parties to the pledge agreement via postal, telegraphic, teletype, telephone, electronic or other connection that allows us to reliably establish that the document comes from a party to the contract. In order for the parties to have such an opportunity, they must first agree on the intended means of communication, methods of identifying the parties (mailing address, fax number, e-mail address, etc.) and the procedure for exchanging documents (determine deadlines, authorized persons, entry procedure by virtue of an agreement concluded using the means of communication listed above). This agreement can be implemented in an agreement drawn up in the form of a single document. For a mortgage agreement, Art. 339 of the Civil Code of the Russian Federation also provides for mandatory registration in the manner established for registration of transactions with the relevant property.

Collateral assessment

The Civil Code does not establish any requirements for determining the valuation of the collateral. At the same time, the property that is the subject of a pledge may have several different estimates: book value, market value, price contained in the decision of the board of directors or the general meeting of a joint stock company on concluding a pledge transaction, which is a major transaction or an interested party transaction for this joint stock company . The question arises: which of these assessments should be included by the parties in the pledge agreement as its essential condition? The valuation of the collateral is a valuation determined by agreement of the parties, which may not coincide with either the market or book value. At the same time, the price of the subject of pledge (transaction price), contained in the decision of the board of directors or the general meeting of the joint-stock company to conclude a pledge transaction, which is a major transaction or a transaction with an interest, must be included in the pledge agreement as its essential condition.

The assessment of the collateral by the parties to the agreement must be objective and correlated with either the book value or the market value of the collateral. In current banking practice, the valuation of the collateral is determined by discounting the market value of the property. It seems that if the valuation of the collateral is significantly underestimated, we can say that the parties did not agree on the specified valuation. It should also be borne in mind that the valuation of the collateral must not be lower than the amount of the obligation secured by the pledge, otherwise there will be no security nature of the collateral (unless the pledge secures part of the main obligation, the amount of which is equal to the valuation of the collateral).

When accepting property as collateral, you should remember the provisions of Art. 348 of the Civil Code of the Russian Federation, which provides that foreclosure on the pledged property may be refused if the borrower’s violation of the secured obligation is extremely insignificant and the size of the pledgee’s claims is therefore clearly disproportionate to the value of the pledged property. Thus, the value of the collateral must be proportionate to the amount of the secured obligation.

If you would like to have your collateral assessed, you can contact us usingcontact information . Call us, we will help! Working with us is profitable and convenient! We hope to see you among our clients!