Usually future borrowers, choosing mortgage bank, pay attention not only to the conditions, but also to the reputation of the bank itself: how famous and large it is. But the joy of a good choice can be short-lived: it is not uncommon for banks to sell mortgages to each other. Why is this done and what threatens the borrower?

For a year and a half of the mortgage, Alexander's loan was "sold" twice. Each time he learned about it in different ways, but always unexpectedly. Within six months of taking out the mortgage, he received a letter saying that his mortgage had been sold to another bank. As soon as the borrower had time to open an account in a new bank, he received a call from the former creditor bank and was asked to make a payment: it turned out that Alexander's loan was sold again, this time back, to the original lender. The manager was surprised that the borrower did not know this, and asked if he had received an SMS message about the resale of the mortgage.

How we are "sold"

Cases when banks sell mortgage bonds to each other occur more and more often as mortgages develop in Russia: it is economically profitable, in this way they replenish their working capital. This, of course, does not happen randomly. A whole portfolio of mortgages for a certain amount is formed and sold. Moreover, such portfolios can be formed and sold for an arbitrarily long time, an unlimited number of times during the lending period of these borrowers. It is worth noting that most often it is long-term loans, primarily mortgages, that are sold: they are issued for a period of 10-20 years, and during this time a lot can happen, from a change in the financial policy of the bank to the termination of its work on the Russian market.

“Buying and selling mortgages by banks has become commonplace, this allows the bank to raise additional cash for the issuance of subsequent loans, which supports liquidity, says the head of the department mortgage lending real estate agency Home estate Maria Ivanova. – The sale of a mortgage, as a rule, is carried out one year after its execution and registration. And, ultimately, the mortgage is sold to state, near-state and large financial corporations.

The first surprise that awaits the borrower in the event that the bank sells his mortgage is the fact that the bank is really not obliged to ask permission from him about this intention. This is evidenced by Article 382 of the Civil Code of the Russian Federation: “The right (claim) belonging to the creditor on the basis of an obligation may be transferred by him to another person in a transaction (assignment of a claim) or transferred to another person on the basis of the law.” At the same time, “the consent of the debtor is not required for the transfer to another person of the rights of the creditor, unless otherwise provided by law or the contract.” This very “other” is, of course, not provided for by the treaty: in the case mortgage loans the contract is drawn up by the bank's lawyers. True, in a conscientious bank, the borrower should be warned about the possibility of selling his mortgage.

In the case when the mortgage has already been sold, the bank is obliged to notify the borrower about it. And send not an SMS message, as in the mentioned story, but a registered letter. “In accordance with the current legislation, in particular, having studied the law “On Mortgage Lending”, we will see that the sale of a mortgage to a third party must be accompanied by a mandatory written notification to the borrower,” says Mikhail Gavrilov, director of the Northern branch network of Alexander Nedvizhimost LLC. In addition, the same article 382 of the Civil Code speaks about this: “If the debtor was not notified in writing about the transfer of the rights of the creditor to another person, the new creditor bears the risk of adverse consequences caused by this for him. In this case, the performance of the obligation to the original creditor is recognized as performance to the proper creditor. And article 385 of the Civil Code clarifies that "the debtor has the right not to fulfill the obligation to the new creditor until the evidence of the transfer of the claim to this person is presented to him."

Terms won't change

Despite the seriousness of the procedure for the assignment of rights of claim, the borrower himself risks little at the same time. “The change of the owner of the mortgage bond does not threaten the debtor with significant unpleasant consequences: nothing changes for him, and the servicing bank remains the bank that originally formed the mortgage,” explains Maria Ivanova. - When the debtor repays the mortgage, the mortgage is revoked by the bank servicing the loan within two weeks, and the encumbrance is removed. At the same time, the client can at any time contact his bank, where he took out a mortgage, with a request to explain to him who is now the owner of the mortgage.

Simply put, the borrower has the right to continue to contribute monthly payments to the bank where he originally took mortgage. For many, this moment is very important: borrowers choose a mortgage bank not only by the rate and other conditions, but also by the convenience of making further contributions, that is, by the number of its branches in the city, the proximity of their location to home or work, or by how much they usually filled. On the other hand, the bank itself may ask the borrower to make payments in new bank who now owns the mortgage. However, the borrower has the right to refuse.

The terms of the loan taken by the borrower cannot change with the change of the bank. These conditions, specified in the contract when applying for a mortgage loan, remain unchanged for the entire term of the loan, regardless of to whom and when the bank sells the mortgage (and whether it sells at all). If the contract refers to a variable rate or a fixed rate for a certain period, these conditions also remain unchanged. In the event of a conflict, one can refer, for example, to Article 384 of the Civil Code of the Russian Federation: “Unless otherwise provided by law or contract, the right of the original creditor passes to the new creditor to the extent and on the conditions that existed at the time of transfer of the right.” It is also worth remembering Article 386 of the Civil Code of the Russian Federation: “The debtor has the right to raise objections against the claim of the new creditor that he had against the original creditor by the time he received notification of the transfer of rights under the obligation to the new creditor.”

Pitfalls - problems of debtors

Reserving the right to make payments to the new creditor bank through the branches of the former creditor bank, the borrower, on the one hand, relieves himself of unnecessary problems, on the other hand, incurs, since the monthly installment, if paid on the last settlement day, can “go » a little longer. If earlier he immediately got to the addressee, now he has a detour, through an intermediary. All this can lead to the formation of arrears. And although the truth will eventually be on the side of the borrower, the sediment, as they say, will remain.

It is worth worrying in the case of resale of the mortgage and those borrowers who seek to form a positive credit history. The fact is that different banks cooperate with different bureaus. credit histories. If the original lender bank and the new lender bank cooperate with different bureaus, information about the borrower's repayments is likely to stop entering the database. This question, as well as the previous one, is solved in each case separately.

Also, lawyers advise to pay close attention to the already mentioned paragraph 1 of Article 385 of the Civil Code of the Russian Federation, which reads: “The debtor has the right not to fulfill the obligation to the new creditor until the evidence of the transfer of the claim to this person is presented to him.” That is, no SMS messages, calls or even letters, if they do not have the seals of a credit institution, are not grounds for the borrower to rush to pay a new lender. Cases of fraud are not uncommon, when an overly gullible borrower began to pay contributions to the account of criminals, accumulating a large debt in an unsuspecting creditor bank. Experts advise borrowers, when they see any signs of selling their loan, to go to the branch of the original lender bank and find out everything on the spot, get written evidence of the sale of the mortgage and only then take any action, whether it be the decision to leave everything as it is or open an account from a new creditor and pay him from now on.

If a force majeure situation occurs, and the bank in which the borrower took a mortgage loan goes bankrupt, the debtor has no other choice but to switch to the service of a new lender. “In cases where the servicing bank went bankrupt or withdrew its business from the region, the debtor will have to be serviced to make payments on the specified obligation in the branches and offices of the new mortgage holder,” says Maria Ivanova. – But since the borrower does not need permission for a transaction when selling a mortgage, the wishes of the new owner of the mortgage are also not taken into account. Therefore, if the debtor is uncomfortable with the service in the new branch, by and large, this is the client's problem.

So that you are not "sold"

In fact, the borrower does not have to protect himself from the possibility of being “sold”. Theoretically, the impossibility of reselling a loan can be stated in the loan agreement, which is concluded when applying for a mortgage, but, according to lawyers, banks do not agree to such a condition. It is easier for them not to conclude an agreement with such a client at all than to rewrite standard conditions, which at the same time limit the bank's ability to manage assets.

On the other hand, there is one interesting point. The matter is that not any credits get to a portfolio which will go on sale. Usually these are “quality” loans, on which borrowers regularly make monthly payments, without overdue payments. A bank that buys such a portfolio always checks what it is buying: “bad” loans with problem borrowers are not needed by anyone. Therefore, such borrowers usually remain a heavy burden for the bank that issued them a mortgage loan for the entire term of the loan.

Another opportunity to reduce the chances of being “sold” is to take out a mortgage in large banks, these are less likely to sell their mortgages, they already have enough working capital. On the other hand, today, in the conditions of global economic tension, it is small banks, wanting to stay afloat, are able to offer the most favorable lending conditions.

Mikhail Gavrilov, director of the Northern branch network of Alexander Nedvizhimost LLC:

Mortgage bonds are a relatively new banking instrument for Russia, a kind of security. Banks use its sale to extract financial profit, as well as to partially hedge their risks. This practice is not very common in our country, but in the future it will develop, and sales of mortgage bonds will increase.

In fact, the sale of a mortgage mortgage does not threaten the borrower with anything. First, because this practice not very common, and secondly, because the buyers of mortgage bonds are mainly Russian banking organizations. If the buyer is foreign person, then, purely hypothetically, the borrower may have problems with early repayment a loan for the urgent sale of an apartment on bail.

The payment methods that exist today through bank terminals, as well as using the “bank-client” computer system, minimize all the inconveniences associated with paying money to a bank located even in another region Russian Federation.

Sergey Kozlov, CEO AN "Bekar":

The sale and purchase of mortgages is a common practice in most banks, because for a bank that purchases mortgages, such a purchase is profitable investment money. It should be noted that the sale of a mortgage to another bank does not affect the borrower and does not entail any negative consequences. Typically, borrowers are notified in advance about the bank's work with resales, so at the time of the conclusion of the contract, the borrower knows what to expect from the bank in the future.

Most often, after the mortgage is transferred to another bank, the borrower receives a mandatory written notice that his mortgage has been sold, but in rare cases, the borrower is asked to sign an agreement with the new bank.

If the bank sold the mortgage to another bank whose branches are very inconveniently located, the borrower who repays the mortgage ahead of schedule has to wait until the mortgage comes back. But even in this case, the waiting period usually does not exceed a week.

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Hello, dear users of the portal!

The situation is what is called boiled. I would like to share what happened with you. So let's start:

In mid-December 2013, there were buyers for my apartment, decent people, but they did not understand anything in the process of buying and selling real estate. About a week they received approval for a loan and received it. The bank requested a set of documents from me for evaluation, I had to order some more and therefore I could submit the documents to the bank only after the New Year. The appraisal of the apartment passed, then we entered the preparatory stage for the deal on the 20th of January.
I had no fears about a transaction involving a bank (mortgage). I asked me to send a preliminary contract of sale that is planned to be signed, as well as other documents that I, as a seller, will sign. The bank pulled to the last and on Friday evening I received draft documents by email. mail. Yes, I forgot to say, the deal was scheduled at 09.00 Monday. To my question about the adjustment of the contract, since it did not suit me, it was reported that they would discuss it on the spot. I have made a single transaction, and not only in real estate. And I got used to the fact that there are several stages. 1st discussion of conditions. 2nd negotiation with adjustment of conditions. 3. signing documents.

I do not pretend to have and correspond to your ideas about transactions, I just got used to it.

What happened in this case. I have claims to the contract, no one will discuss them on weekends, and on Monday morning I need to be at the bank office. I expressed my dissatisfaction, but as they say: "You need to be able to accept what you cannot change." You still have to take time off from work. In the morning, the buyers and I arrived at the bank's office on Torzhkovskaya Street.

Together with the representative of the bank, Maria, we sat down at the negotiating table. The bank initially refused to make any changes to the terms of the contract at all. But apparently seeing my determination to defend my interests, he made some concessions.

What specifically I did not like in the terms of the contract of sale and settlements on it. I will not bother anyone with references to sources of law and other legal "tinsel".

I write in simple terms:

1. The terms of all contracts are drawn up in favor of the bank by 1000% (mortgage amount is approximately 30% of the price of the apartment). According to the initial wording, the seller received the money for the apartment in full, and has no complaints. In fact, the money is either put into a cell (not my case, later I read here a review of the same sellers of the apartment, by the will of fate, who contacted DeltaCredit mortgage buyers, where the same bank employees appear as mine and about the horrors of their settlement through the cell) or payment through a savings account (my version). There is no reference in any document to the fact that the clauses of the agreement were drawn up exactly at the request of the bank (since the bank does not want to change the conditions, I suggested indicating that this form of the agreement was drawn up at the request of the bank - I was refused).

2. The contract of sale contains a mortgage and a mortgage by virtue of law. As a person who has nothing to do with delta credit, I asked to remove this item - refusal (the mortgage is such a secondary document, as soon as the contract is registered, it will be impossible to do anything with the apartment, regardless of whether there is a mortgage or not, the apartment is already pledged to the bank) .

3. At the same time, I, the SELLER, will be able to receive money for the sold apartment only after submitting it to the bank (this is what was left in the end before this list was much wider):

The original of the contract of sale with the mark of the Federal Registration Service, i.e. copy of the Buyer;
- evidence of ownership in the name of the Buyer (nat. copy is possible);
- the original of the Mortgage;
- The act of acceptance and transfer of the apartment;
- Receipts for receiving money;

4. An agreement with a bank on a savings account was drawn up in Moscow, and in case of claims, you need to apply to the court in Moscow at the location of the Bank's Head Office. Yes, how could I be so indignant because we sign all the papers in St. Petersburg and I live here, the answer was laconic, we will not change these conditions. I tried to say these are not conditions again, this is a statement of fact, I sign the contract in St. in my opinion is a banal non-professionalism but oh well). It would seem that the Seller (just in case, one owner since the construction of the house, owns more than 3 years, no one was registered in the apartment, direct sale) should feel more than confident and dictate the terms of the transaction, but no, in DeltaCredit he is a creature without rights . Bank employees repeated a well-memorized text, it became hot after 4 hours of discussion, they pretended to change the conditions (changing interpretations, the essence remained the same, it started to piss me off, but I held on as best I could). Slowly, I refused the demands put forward (what is called, I was starved out by both representatives of the bank and sellers), although there was one thought in my head “But I need it”, if everything happened according to the scheme described by me above, I simply would not come to sign the contract, we could not agree on the terms of the deal - I do not waste mine, as well as the time of others. As a result, after 6 hours of such negotiations, as I call them "in a circle", I got up, said goodbye and left.

After some time, the Buyers called me and said that the bank would make concessions and on Wednesday we would be able to sign the contract. If someone has mastered the entire text, you probably think that the bank admitted its mistakes ... Naive ... the draft documents sent by me to the bank remained unanswered ... And again, you need to understand who you are dealing with ... I then naively assumed that since I did not receive objections, my edits were accepted ... how cruelly I was mistaken.

And here it is the apogee, on Wednesday I again took time off from work (like the buyers) came to DeltaCredit and found out that:

1. Some of the bank employees did not answer me and they do not accept changes in this form.
2. Again, employees Maria and Veronica took up the "old" thing. You first sign the contract of sale, and we'll talk about the rest later (that is, a person without seeing the full picture of what is happening sells an apartment, like an old car, let's say for 15 thousand).

To say that I was furious, I was by no means calmer than ever, having spent 10 minutes talking with them, I announced my final decision to them - I will not conduct a deal on such conditions.

As a result, what we have on the bottom line:

1. Buyers take out a mortgage from another bank.
2. I met DeltaCredit Bank as a Seller and realized that the bank doesn't give a damn about me. Reasonable arguments on the bank do not work. And everything will change only when the sellers of apartments will start refusing transactions with the participation of DeltaCredit Bank by dozens.

I foresee questions that you may have, but why are all the requirements of the bank normal, I will answer:

1. The documents that are required for the seller to receive money can only be received by the bank (mortgage) and the Buyers (common and original contracts marked with the UFRS) - I asked to exclude the mortgage since this document has nothing to do with the Seller (this is a relationship Bank and those who receive a loan), asked to supplement the paragraph in case of not providing a certificate in the name of the Buyer and orig. of the agreement with the mark of the Federal Registration Service to the bank, before such a date, provide an extract from the Federal Registration Service for the apartment indicating the Buyer and the DeltaCredit pledgee as the copyright holder. If someone doesn’t understand, I’ll explain, the documents are handed over and received by the company recommended by the bank, but my question is, what happens if they lose the documents or don’t bring them to DeltaCredit, Veronika said, they’ll just restore them at their own expense (Yeah, how, provided that they will have the appropriate powers and after a considerable time). At the same time, I am without an apartment, and the buyers are without documents, but the bank is already fine - the apartment is pledged for anyone, the buyers pay the loan from the 1st day of signing the loan agreement, and if I decide to sue the bank, I will go to Moscow. Of course, you will object to me that 1000 transactions are made and nothing like this happens, and everyone does it BUT:

1. I am not everything and the apartment is dear to me as a memory (everyone decides to gamble for himself, it’s probably good when people blindly trust the bank and the realtor, but when those unfortunate “deceived equity holders”, bank depositors (I hope for examples far I don’t have to go) I have only one question - in terms of amounts of several million rubles, for some reason you did not turn to an INDEPENDENT expert in this field, I hope everyone understands that the realtor (accompanying your transaction has probably already received a commission from the Buyer as a pledge for an apartment, and even if not, how much does he risk? And you?) an interested person in the transaction (and if he turns out to be "dishonest", then he will not even think about what will happen to your money (read the contract and responsibility for it between you and the Real Estate Agency and all illusions will pass)).

2. The clearer and tougher the conditions for each of the parties to the transaction are, the less "surprises" await you in the future. We can bet...

3. And most importantly, whatever happens in the event of problems on the solution of which you will not be able to agree where you will go - right in court. Really on your own ... hardly ... it means to a lawyer ... so maybe you should do it before ... "so that it would not be excruciatingly painful for aimless" ... well, then you know ...

Thank you for your attention and patience. I apologize in advance for possible errors, typos and presentation of events and thoughts. (I am writing while waiting for the plane, as they say in one breath, the author's text without editing). Good luck to all! (Including the DeltaCredit bank, I just wish him additionally to turn "face" to those who, by and large, are not their clients). If anyone has any questions, I'll be happy to answer!

Do you think you are Russian? Born in the USSR and think that you are Russian, Ukrainian, Belarusian? No. This is wrong.

You are actually Russian, Ukrainian or Belarusian. But you think you are a Jew.

Game? Wrong word. The correct word is "imprinting".

A newborn associates himself with those facial features that he observes immediately after birth. This natural mechanism is characteristic of most living beings with vision.

Newborns in the USSR for the first few days saw their mother for a minimum of feeding time, and most of the time they saw the faces of the maternity hospital staff. By a strange coincidence, they were (and still are) mostly Jewish. Reception is wild in its essence and effectiveness.

All your childhood you wondered why you live surrounded by non-native people. Rare Jews on your path could do anything with you, because you were drawn to them, while others were repelled. Yes, even now they can.

You cannot fix this - imprinting is one-time and for life. It is difficult to understand, the instinct took shape when you were still very far from being able to formulate. From that moment, no words or details have been preserved. Only facial features remained in the depths of memory. Those traits that you consider your family.

3 comments

System and Observer

Let us define a system as an object whose existence is not in doubt.

An observer of a system is an object that is not a part of the system it observes, that is, it determines its existence, including through factors independent of the system.

From the point of view of the system, the observer is a source of chaos - both control actions and the consequences of observational measurements that do not have a causal relationship with the system.

An internal observer is a potentially achievable object for the system in relation to which the inversion of the observation and control channels is possible.

An external observer is even an object potentially unattainable for the system, located beyond the event horizon of the system (spatial and temporal).

Hypothesis #1. All-seeing eye

Let's assume that our universe is a system and it has an external observer. Then observational measurements can take place, for example, with the help of "gravitational radiation" penetrating the universe from all sides from the outside. The capture cross section of "gravitational radiation" is proportional to the mass of the object, and the projection of the "shadow" from this capture onto another object is perceived as an attractive force. It will be proportional to the product of the masses of objects and inversely proportional to the distance between them, which determines the density of the "shadow".

The capture of "gravitational radiation" by an object increases its randomness and is perceived by us as a passage of time. An object that is opaque to "gravitational radiation", the capture cross section of which is larger than the geometric size, looks like a black hole inside the universe.

Hypothesis #2. Internal Observer

It is possible that our universe is watching itself. For example, using pairs of quantum entangled particles spaced apart in space as standards. Then the space between them is saturated with the probability of the existence of the process that generated these particles, which reaches its maximum density at the intersection of the trajectories of these particles. The existence of these particles also means the absence of a sufficiently large capture cross section on the trajectories of objects capable of absorbing these particles. The remaining assumptions remain the same as for the first hypothesis, except:

Time flow

External observation of an object approaching the event horizon of a black hole, if the “outside observer” is the determining factor of time in the universe, will slow down exactly twice - the shadow from the black hole will block exactly half of the possible trajectories of “gravitational radiation”. If the determining factor is the "internal observer", then the shadow will block the entire trajectory of interaction and the flow of time for an object falling into a black hole will completely stop for a view from the outside.

Also, the possibility of combining these hypotheses in one proportion or another is not excluded.

When choosing a bank for the purpose of obtaining a loan, many customers are guided not only by specific figures in the agreement, but also by the reputation of the bank, the scale of its activities, and the availability of branches within walking distance. But it may happen that the credit institution chosen with such difficulty sells the mortgage, and the client finds himself "under the wing" of a completely different bank. Should I be worried? Why do banks sell mortgages to each other? This is what the specialists of the MIC Group say. To begin with, it is worth explaining what a mortgage is. A mortgage is, in fact, a registered security that certifies the rights of the mortgagee to real estate. The mortgagee, of course, is the bank that issued the loan. Since the mortgage is a security, it can be transferred or sold to another person, both natural and legal. And cases of such sales in modern realities are by no means uncommon. Banks do this to replenish their working capital by attracting additional funds for issuing loans. The transfer of rights under the mortgage is the transfer to another bank of the right to pledge real estate, as well as obligations to pay the funds taken on credit. As a rule, the sale of a mortgage is carried out in a year and a half after its registration. When transferring a mortgage, the bank is not obliged to ask the client for permission, it is only obliged to notify him of the change of the mortgagee and provide the details of the new bank. If the client has not been notified in writing about the change of the pledgee, then all responsibility for delays and other adverse consequences lies with the new pledgee. The borrower even has the right to make payments to the same bank in which he originally received the loan. The bank may ask the client to deposit funds to the account of another credit institution, but he has the right to refuse this. But it is worth remembering that by depositing funds through the old bank at the very last moment, the client risks earning a delay, because money can go through an intermediary for several days. And although such a delay will not be the fault of the borrower, why create unnecessary problems and an occasion to talk with a loan officer? It is also worth mentioning the method of notification of the change of the pledgee. This should be a registered letter with the seal of a credit institution, but not calls, SMS or emails. Cases of fraud are already known, when attackers sent letters to borrowers with new details, to which gullible citizens began to transfer payments, eventually forming a serious delay on the loan. According to the specialists of the MIC Group, it is best to personally verify the change of the pledgee by calling your loan officer or visiting the bank branch where the loan was issued. The terms of repayment of the loan when selling the mortgage cannot be changed. The amount of monthly payments, repayment terms - all this, as well as other fundamental points specified in the contract, must remain unchanged. In theory, it is even possible to prescribe a condition in the contract on the impossibility of selling the invoice to other persons and credit institutions, however, banks rarely agree to change the standard text of the agreement and include such clauses in it. The bottom line is that, in principle, the borrower has nothing to worry about, even if his mortgage has been sold several times. Of course, on the Internet you can find unpleasant stories associated with such transitions, however, they are isolated and, as a rule, are associated with errors in the work of a credit institution, which can easily be challenged in court. “Even if your mortgage was transferred to another bank, there is no reason to worry,” comments Konstantin Shibetsky, Head of Mortgage Lending at MIC Group. - No one has the right to change the terms of repayment, the text of the contract or any other fundamental points. For the client, in fact, everything remains the same, only the account number to which the funds will be transferred can change, and then only with the consent of the client himself. If you are a client big bank, then, most likely, you will not even encounter such a situation, since such organizations do not need to raise additional funds for issuing loans.

Resolution of the Eleventh Arbitration Court of Appeal dated February 1, 2010 in case n A55-16658 / 2009 state registration an additional agreement on the mortgage of an apartment, on the obligation to register this additional agreement, as well as the collection court costs for the travel of the representative. Court of First Instance Arbitration Court of the Samara Region

ELEVENTH ARBITRATION COURT OF APPEALS
RESOLUTION
dated February 1, 2010 in case N A55-16658 / 2009
The operative part of the resolution was announced on February 01, 2010
The decision was made in full on February 01, 2010
Eleventh Arbitration Court of Appeal composed of:
presiding judge Marchik N.Yu.,
judges Rogaleva E.M., Zasypkina T.S.,
when maintaining the protocol by the secretary of the court session Usanova M.P.,
with:
from the applicant - Myagkova O.V., power of attorney dated 12.01.2010 N 05/2010,
from the defendant - Zarifov I.R., power of attorney dated December 25, 2009 N 12-5239, Lovygina E.V., power of attorney dated December 25, 2009 N 12-5241,
from the third person - did not appear, notified,
having considered in an open court session on February 01, 2010 in the courtroom, in room No. 7, the appeal of a closed joint-stock company " Commercial Bank DeltaCredit"
on the decision of the Arbitration Court of the Samara Region dated October 29, 2009 in case N A55-16658 / 2009 (judge Yu.E. Kholodkova)
according to the application of closed joint-stock company "Commercial Bank DeltaCredit", Moscow,
to the Office of the Federal Registration Service for the Samara Region, Samara,
third party:
Gutkovich Ilya Igorevich, Samara,
on the recognition of illegal refusal to state registration of an additional agreement on the mortgage of an apartment,
installed:
CJSC "Commercial Bank DeltaCredit" (hereinafter - the applicant, the Bank, CJSC "KB DeltaCredit") applied to the Arbitration Court of the Samara Region with a statement to the Federal Registration Service for the Samara Region (hereinafter - the Defendant, the Federal Registration Service for the Samara Region) to declare illegal refusal to state registration of an additional agreement on the mortgage of an apartment located at the address: Samara Region, Samara, Leninsky District, st. Vilonovskaya, house 4 "a", apt. 17, 18, and on the obligation of the defendant to register an additional agreement on the mortgage of an apartment located at the address: Samara Region, Samara, Leninsky District, st. Vilonovskaya, house 4 "a", apt. 17, 18.
The bank also filed an application to recover from the defendant the court costs for the travel of his representative to the Arbitration Court of the Samara Region in the amount of 11,982 rubles.
By the decision of the court of first instance dated October 29, 2009, the stated requirements were denied.
When adopting a judicial act, the court of first instance proceeded from the fact that the pledge of the holder is certified by a mortgage, and, therefore, changes and additions to the mortgage registration record can be made on the basis of an agreement to change the content of the mortgage, but not on the basis of an additional agreement submitted by the applicant to the contract about mortgage. The disputed refusal to state registration of the additional agreement does not violate the applicant's rights, since the volume and conditions of mortgage legal relations in this case are due to a change in the content of the mortgage, and not the mortgage agreement.
Disagreeing with the conclusions of the court of first instance, the Bank filed an appeal, in which it asks to cancel the decision of the court of first instance.
The complainant believes that the decision of the court of first instance does not comply with the general rules of civil law on the conclusion of contracts, in particular, paragraph 1 of Art. 452 of the Civil Code of the Russian Federation, which provides for the right of the parties by agreement to supplement or change the terms of the contract. The court, when making a decision, incorrectly applied the norms of substantive law - Art. 164 of the Civil Code, paragraph 4 of Art. 9, Art. 10, Art. 13, art. 3, Art. 50 federal law"On mortgage (mortgage of real estate)".
The applicant's representative at the hearing supported the arguments set out in the appeal.
Representatives of the defendant, considering the decision of the court of first instance lawful and justified, objected to the satisfaction of the appeal.
The representative of the third party did not appear at the hearing.
In accordance with Part 3 of Art. 156, part 1 of Art. 266 of the Arbitration Procedure Code of the Russian Federation, the case on appeal was considered by the court of appeal in the absence of a representative of a third party duly notified of the time and place of the trial.
At the hearing on January 25, 2010, a break was announced in accordance with Article 163 of the Arbitration Procedure Code of the Russian Federation until 12:30 on February 1, 2010.
Having checked the materials of the case, after listening to the representatives of the parties, assessing the evidence in the case in aggregate, the court of appeal considers the decision of the court of first instance lawful and justified, and the appeal is not subject to satisfaction on the following grounds.
It follows from the materials of the case that on April 29, 2008, between CJSC CB DeltaCredit (mortgagor) and gr. Gutkovich I.I. (mortgagor) concluded a mortgage agreement N 88932-DI-2008, under the terms of which the mortgagor, in order to secure the fulfillment of his obligations under loan agreement dated 29.04.2008 N 88932-KD-2008, concluded in the city of Moscow between the pledgor and the pledgee, transfers the pledgee (mortgage) apartment to the pledgee at the address: Samara, Leninsky district, st. Vilonovskaya, house 4 "a", apartment 17, 18.
According to paragraph 1.3 of this agreement, the rights of the mortgagee as the mortgagee of the apartment, as well as the rights of the mortgagee under the loan agreement, are certified by a mortgage drawn up by the pledgor on the terms provided for in this agreement.
According to the data of the Unified State Register of Rights to Real Estate and Transactions with It (hereinafter referred to as the USRR), the mortgage agreement dated 04/29/2008 N 88932-DI-2008 was registered on 05/05/2008, as there is a corresponding entry in the USRR.
On 07.05.2008 the original pledgee CJSC Commercial Bank Delta Credit was issued with a mortgage (vol. 1 pp. 130 - 140).
04/23/2009 between CJSC "CB DeltaCredit" (pledge holder) and gr. Gutkovich I.I. (mortgagor) concluded an additional agreement N 1 to the mortgage agreement dated April 29, 2008 N 88932-DI-2008, according to which clause 1.1. the mortgage agreement is set out in a different wording.
04/27/2009 gr. Gutkovich I.I. and CJSC "CB DeltaCredit" applied to the Department of the Federal Reserve for the Samara region with an application for registration of an additional agreement dated
04/23/2009 N 1 to the mortgage agreement of 04/29/2008 N 88932-DI-2008. (vol. 1 ld 55 - 56).
By message of 04.05.2009 N 01/112/2009-179, the registering authority refused the Bank to state registration of an additional agreement to the apartment mortgage agreement on the basis of paragraph 4, clause 1, art. 20 of the Federal Law of July 21, 1997 N 122-FZ "On State Registration of Rights to real estate and transactions with it" due to the fact that the documents submitted for state registration of rights do not comply with the requirements of the current legislation in content (v. 1 ld 72 - 73).
The refusal is motivated by the fact that since the mortgagee's rights are certified by a mortgage bond, changes and additions to the mortgage registration record can only be made on the basis of an agreement to change the content of the mortgage bond.
Considering the refusal to state registration of the supplementary agreement as unlawful, the Bank applied to the arbitration court with this application.
Refusing to satisfy the stated requirements, the court of first instance rightly proceeded from the following.
According to paragraph 4 of paragraph 1 of Art. 20 of the Federal Law "On State Registration of Rights to Real Estate and Transactions Therewith", state registration of rights may be denied if the documents submitted for state registration of rights do not comply in form or content with the requirements of the current legislation.
Part 1 of Art. 452 of the Civil Code of the Russian Federation provides that an agreement to amend or terminate a contract is made in the same form as the contract, unless otherwise follows from the law, other legal acts, contract or business practices.
Meanwhile, the norms of the Federal Law "On Mortgage (Pledge of Real Estate)" (hereinafter referred to as the Law on Mortgage) determine a special procedure for making such decisions, which differs from the procedure for making transactions established by the norms of the Civil Code of the Russian Federation, if the rights of the pledgee are certified by a mortgage.
According to paragraph 1 of Art. 13 of the Mortgage Law, the rights of a mortgagee under a mortgage-secured obligation and under a mortgage agreement may be certified by a mortgage, unless otherwise established by this Federal Law.
By virtue of paragraph 2 of Art. 13 of the Mortgage Law, a mortgage bond is a registered security certifying the following rights of its legal owner: the right to receive performance on monetary obligations secured by a mortgage, without presenting other evidence of the existence of these obligations, the right to pledge property burdened with a mortgage.
According to paragraph 6 of Art. 13 of the Law on Mortgage, the debtor under the obligation secured by the mortgage, the pledgor and the legal owner of the mortgage bond may, by agreement, change the previously established conditions of the mortgage bond.
When concluding an agreement specified in paragraph 6 of this article and paragraph 3 of Art. 36 of this Federal Law, and the transfer of debt under a mortgage-secured obligation in such an agreement provides for either making changes to the content of the mortgage bond by attaching the original of such an agreement to it and indicating by the official of the body that carries out the state registration of rights, in the text of the mortgage itself, to the agreement as a document, which is an integral part of the mortgage, in accordance with the rules of the second part of Art. 15 of this Federal Law, or the annulment of the mortgage and at the same time the issuance of a new mortgage, drawn up taking into account the relevant changes (clause 7, article 13 of the Mortgage Law).
In accordance with paragraph 1 of Art. 19 of the Mortgage Law, a mortgage is subject to state registration in the Unified State Register of Rights to Real Estate and Transactions Therewith in the manner established by the federal law "On State Registration of Rights to Real Estate and Transactions with It".
According to paragraph 3 of Art. 20 of the Law on Mortgage, if the rights of the mortgagee are certified by a mortgage, the body that carries out the state registration of rights, simultaneously with the documents for the state registration of the mortgage, shall also submit: the mortgage, its copy, as well as the documents named in the mortgage as attachments, and their copies.
Paragraph 1 of Art. 11 of the Mortgage Law establishes that the state registration of a mortgage agreement is the basis for entering into the Unified State Register rights to real estate and transactions with it mortgage records.
According to paragraph 2 of Art. 23 of the Mortgage Law, amendments and additions to the mortgage registration entry are made on the basis of an agreement between the pledgor and the pledgee to amend or supplement the terms of the mortgage agreement.
Changes and additions to the mortgage registration entry are not allowed if the rights of the mortgagee are certified by a mortgage, except for the case provided for in paragraph 6 of Art. 13 of the Mortgage Law.
The procedure for changing a mortgage registration entry is regulated by the Instruction on the procedure for state registration of a mortgage on real estate objects, approved by order of the Ministry of Justice of the Russian Federation of June 15, 2006 N 213 (hereinafter referred to as the Instruction).
According to paragraph 21 of the Instruction, changes and additions to the mortgage registration entry are not allowed if the rights of the mortgagee are certified by a mortgage, except for the case provided for in paragraph 6 of Art. 13 of the Law on Mortgage (Article 23 of the Law on Mortgage) (in the event that the debtor under the obligation secured by the mortgage, the pledgor and the legal owner of the mortgage conclude an agreement to change the previously established conditions of the mortgage).
An analysis of the above articles of legislation indicates that the mortgage has a special status, and its issuance and its presence in this case has a law-forming and legal significance for mortgage legal relations.
Based on the foregoing, as the court of first instance correctly pointed out, in this case the rights of the mortgagee are certified by the mortgage, and, therefore, changes and additions to the mortgage record can be made on the basis of an agreement to change the content of the mortgage, but not on the basis of an additional agreement provided by the applicants to mortgage agreement.
In addition, paragraph 4 of Art. 14 of the Law on Mortgage, it is determined that if the mortgage agreement does not comply with the mortgage agreement or the agreement, the obligation from which is secured by mortgage, the content of the mortgage bond is considered correct, except if its acquirer at the time of the transaction knew or should have known about such a discrepancy.
Thus, the contested refusal to state registration of the additional agreement does not violate the applicant's rights, since the scope and conditions of mortgage legal relations in this case are due to a change in the content of the mortgage, and not the mortgage agreement.
Under such circumstances, the trial court came to the correct conclusion that the contested refusal complied with the requirements of Art. 20 of the Federal Law "On state registration of rights to real estate and transactions with it" and does not violate the rights and legitimate interests of the applicant, and on the basis of Part 3 of Art. 201 of the Arbitration Procedure Code of the Russian Federation reasonably refused to satisfy the stated requirements.
The arguments given by CJSC CB DeltaCredit in the appeal are based on an erroneous interpretation of the law and do not refute the circumstances established by the court of first instance when considering this case, and, accordingly, do not affect the legality of the decision made by the court.
Thus, the factual circumstances relevant to the case were established by the court of first instance on the basis of a full and comprehensive study of the evidence available in the case, the norms of substantive and procedural law were not violated, in connection with which the court of appeal finds no reason to cancel the adopted judicial act.
Guided by Art. Art. 266 - 271 Arbitration Procedure Code of the Russian Federation, court
decided:
The decision of the Arbitration Court of the Samara Region dated October 29, 2009 in case No. А55-16658/2009 is left unchanged, and the appeal is dismissed.
The decision comes into force from the date of its adoption and can be appealed within two months to the Federal Arbitration Court of the Volga District through the court of first instance.
presiding
N.Yu.MARCHIK
Judges
E.M.ROGALEVA
T.S. ZASYPKINA