The main disputes in the courts when seizing collateralized apartments from hopeless debtors are caused by the valuation of the collateral. It is beneficial for banks that the collateral value of housing is lower than the market value.

Clouds are gathering over the borrower
According to the forecast general director National Bureau credit histories(NBKI) Alexandra Vikulina, based on the results of 2013, the share of mortgage loans in the structure of household debt to banks will grow. Already today it is about 25%.

Accordingly, we can expect that the number of bad debtors will increase in the mortgage segment of the credit market. At the same time, there is an opinion that in property proceedings regarding overdue debts, the courts “for social reasons” take the side of the debtors. And if this housing is the only one the debtor has, no one will ever evict him.

Alas, this opinion is wrong.

According to Maxim Bogomolov, development director of the Filbert collection agency, courts are guided by social considerations when reducing the amount of penalties for failure to fulfill obligations under a loan agreement. And also when granting a deferment for the execution of a court decision to foreclose on the mortgaged property. This time is given to the debtor to find another suitable place to live.

When it comes to confiscating a mortgaged apartment from a hopeless debtor, the law remains on the side of the creditor. “The law allows foreclosure of a mortgaged apartment, even if the apartment turns out to be the only premises suitable for permanent residence of the debtor and members of his family,” explains Maxim Bogomolov, “And the courts, as a rule, satisfy the demands of banks to foreclose on the mortgaged property. The law is the law, and the courts cannot ignore it.”

“The current legislation does not provide for exceptions that would prevent banks from repossessing apartments from malicious defaulters of mortgage loans,” echoes the leading lawyer of the First Capital Legal Center Oleg Sukhov. According to him, both the Civil Procedure Code of the Russian Federation (Article 446) and the Law “On Mortgage (Pledge of Real Estate)” (Article 50) clearly establish the right of credit institutions to seize and sell collateral to pay off accumulated debts.

Moreover, these conclusions are confirmed judicial practice. Thus, according to the Determination of the Krasnoyarsk Regional Court dated April 4, 2012 in case No. 33-2066/2012, the registration and residence of minor children in a mortgaged apartment cannot be an obstacle to its sale in order to repay the mortgage loan.

And according to the decision of the Supreme Court of the Russian Federation dated May 29, 2012 No. 80-B12-2, an obstacle to the seizure of a mortgaged apartment is not the lack of other housing.

Assessment assessment discord
However, Russians usually do not agree to be evicted without a trial. “Cases of voluntary sale of mortgaged apartments continue to be isolated,” notes Maxim Bogomolov.

And this behavior of citizens has a certain meaning.

Let us remind you: when issuing a loan, the bank evaluates the apartment. “The collateral value is equal to the market value on the date the loan was issued,” notes VTB24 press secretary for the Northwestern Federal District Ivan Makarov. And when selling such an apartment at public auction, two options are possible. If there is not enough money from the sale of housing to cover the debt, the remaining debt is forgiven (“mortgage amnesty” under Federal Law No. 405). If the proceeds turn out to be more debt, the bank will have to return the difference.

Real estate prices are rising, while the price of the property fixed in the mortgage agreement remains unchanged. In other words, it is not profitable for the debtor to sell housing at the price specified in the contract.

That is, often the main “stumbling block” in the courts becomes the question of how much the collateral should actually be valued at.

The following practice has developed here. “As a rule, a party that does not agree with the valuation of the collateral provides an expert opinion or an appraiser’s report on the market value of the property at the time the dispute is considered in court,” says the chief lawyer of the Return Center bank commissions» Ekaterina Petrova. In this case, if there are two expert opinions, the court independently appoints a forensic examination.

Long story
The second reason for litigation is the desire of hopeless debtors to gain time. After all, not yet court decision, no one will evict the borrower from the apartment.

According to Ekaterina Petrova, such cases are considered in court at the defendant’s place of residence, unless the agreement specifies a different procedure for consideration.

"Terms of consideration litigation depend on the court, judge, region of the trial. They can be very different - from three months to several years,” states Oleg Sukhov.

As Maxim Bogomolov notes, if, for example, an agreement is reached between the bank and the mortgagor, then there is no need to conduct a forensic examination. As a result, such a case may be considered at one or two court hearings. Taking into account the time frame associated with preparing the case for trial, notifying the parties and preparing a reasoned decision, it can be considered in just two months. After another month, the court decision comes into force, after which the mortgagee can obtain in court performance list and present it to the service bailiffs to enforce a court decision.

If the defendant objects to the satisfaction of the claim - both in terms of the amount of debt and the initial sale price of the mortgaged apartment, and if the claim is satisfied, he appeals the court decision, then the case may be considered for more than a year.

Enforcement proceedings, in turn, are also not operational.

“The two-month period for compulsory execution of a court decision established by the Federal Law “On enforcement proceedings”, is observed extremely rarely,” admits Maxim Bogomolov. This is due to the heavy workload on bailiffs, the impressive amount of documentation that the bailiff needs to prepare, the lengthy procedures associated with the transfer of property for auction, as well as with the organization and conduct of auctions.

Taking into account all the circumstances, enforcement proceedings usually last six to nine months.

Life after arrest
Further, as Maxim Bogomolov clarifies, in the act of seizing the property, the bailiff determines the mode of use of the apartment (with or without the right to use) and appoints a responsible custodian.

Typically, the debtor or a member of his family who is present at the time of drawing up the document of seizure is appointed as the responsible custodian. “In practice, bailiffs often allow the debtor to use the apartment before selling it,” says Maxim Bogomolov. “But it is also possible to transfer the seized apartment for storage to a third party, with whom the relevant territorial body of the bailiff service enters into a civil contract.” For example, if no one lives in the apartment.

Often, collectors themselves accept seized apartments for safekeeping, having previously concluded storage agreements in relation to the property of a particular debtor with the bailiff service departments.

If the initial price of an apartment is not too high, and the apartment market is favorable, there is a high probability that the apartment will be sold at the first auction. This will take two to three months from the moment the apartment is transferred for sale. If the starting price is clearly too high, hardly anyone will come to the auction, and it will be declared invalid.

If the bank does not exercise the right to retain the mortgaged item at the initial sale price at the first auction, the specialized organization will schedule a repeat auction with the initial sale price set at 15% less than the price at the first auction.

If the repeated auction does not take place, the bank has the right to retain the mortgaged item at a price no more than 25% less than the price at the first auction. And then try to sell the apartment again. This may take more than six months.

The last and most unfavorable option for a mortgage borrower to get out of the situation “When there is no money to pay the mortgage” is to sell the mortgaged apartment by court decision. Let us recall that all the previous ones: , and were discussed in previous articles (see links).

Selling a mortgaged apartment through the court

The Mortgage Law allows you to sell an apartment by court decision after all possible means have been tried. An important point: if the mortgaged apartment is the only home, then Article 54 (clause 3) of the same law allows the borrower to be granted a deferment of up to 12 months. But there must be a good reason for this. As a rule, this reason is the fact of the absence of other housing or the presence of minor children in the collateral housing space. The deferment is given to search for opportunities to repay the debt.

If, at the end of the given period, the money has not been found, then the process of collecting the debt in court begins. As in the previous case, the collateral apartment is put up for auction and the money received from its sale goes towards paying the mortgage, interest on the loan and accumulated late fees. Since no one exempts the borrower from paying monthly installments even if a deferment is granted.

For the procedure for selling a property through an auction and why the borrower-debtor should not expect benefits from it, see. In addition, the costs of conducting the auction (3% of the starting price), paying for the services of an appraiser and the services of the organization conducting the auction will be deducted from the proceeds. Usually, as a result of the auction, the borrower still owes the creditor bank.

Eviction from a mortgaged apartment through the court

After the auction, eviction from the secured apartment begins. And it will definitely take place, whether you have other housing or not. Since all ways to solve the situation have already been tried. Therefore, the bank can simply evict you “to nowhere” using the help of bailiffs. It's sad, but that's the reality. The debtor may file a claim in court. But if it is proven that the bank did everything according to the current rules under the mortgage law, then the eviction will still take place.

That's why the best option in this case, a certain amount will still be found to repay at least the main part of the debt even before the creditor bank goes to court. This possibility exists - just remember about loan refinancing. What is this financial instrument and how it differs from, we will tell in another article. In the meantime, we advise you not to bring the situation to the point of selling your mortgaged apartment through the court. Why, we think it’s already clear. Check out the blog if you found it helpful. We will be glad. Good luck.

Save so you don't lose

Not everyone is able to accurately predict their financial situation and prepare for difficulties in advance. It is especially difficult in such a situation mortgage borrowers. Their apartment is being taken away for mortgage debts. Today we will tell you how this painful procedure occurs, can it be avoided and what should citizens do?

Situations when an apartment is taken away for mortgage debts occur everywhere. For example, in the Voronezh region, the borrower was unable to pay mortgage loan more than 1 million rubles. The bank went to court and won the case. The mortgaged apartment was seized and sold at auction for 1.1 million rubles. The debt was repaid, enforcement proceedings were completed.

We can say that the borrower was lucky, since some citizens still owe the bank even after losing their mortgage on their apartment. So, in Saratov region After selling the apartment, the resident must still pay the bank 100 thousand rubles.

In the Yaroslavl region, a mortgaged apartment could not be sold during the auction. Then the bank accepted the housing on its balance sheet to pay off the debt, but at a price that was 25% lower than the original cost. Debtors will have to vacate their home and repay the remaining amount to the bank.

There is an option to receive credit holidays. The borrower is exempt from paying debt for 1-2 months in order to use the respite to restore his financial situation. The main thing is not to go with the flow. The sooner you start looking for ways out of a difficult situation, the greater the chances of a successful outcome. As a last resort, if you don’t have enough money, you can always apply.

Purchasing a home always involves some risk. Especially now, when apartments are purchased with a mortgage, given as collateral and become the subject of various kinds of fraudulent schemes. A very common situation is when a person buys an apartment, registers his rights to it, and then it turns out that strangers are living in the apartment quite legally. For example, relatives of the previous owner. Evicting them from an apartment is often very problematic, and sometimes even impossible.

Recently, the Constitutional Court made several rather interesting decisions that could significantly simplify the lives of buyers of problematic housing in the future. Thus, in Ruling No. 246-O dated February 17, 2015, the court actually confirmed the possibility of seizing a mortgaged apartment for non-payment of fees, even if part of this apartment belongs to a minor.

The subject of appeal here was the legislation allowing the eviction of families with children from mortgage apartments without the permission of the guardianship and trusteeship authorities. The court noted that the mortgage of a residential building or apartment owned by minor citizens is carried out in the manner established for transactions with the property of wards.

In turn, obtaining prior permission from the guardianship and trusteeship authority to conclude loan agreement and a loan agreement for the purpose of providing residential premises for the ward is required only in exceptional cases. In particular, in the case of concluding such agreements by a guardian on behalf of a ward who acts as a borrower.

In addition, the guardian, without the prior permission of the guardianship and trusteeship authority, does not have the right to commit, and the trustee does not have the right to give consent to transactions for the rental of the ward’s property for rent, lease, free use or collateral, for the alienation of the ward’s property, transactions entailing represents a decrease in the value of the ward's property.

Thus, the rules requiring obtaining permission from the guardianship authorities do not apply to cases where housing is purchased in shared ownership parents acting as co-borrowers on the loan and their child. And this is not a legal gap or a mistake by the legislator. The fact is that the obligations of the parents - co-borrowers under the loan agreement are secured by the mortgage of the apartment purchased using credit funds, by force of law.

At the same time, the consent of the guardianship and trusteeship authorities is required only in the case of the transfer of residential premises already owned by a minor as collateral, and not purchased with funds received under a loan agreement, the obligation to return which is secured by the collateral of this residential premises. In other words, you can evict a family in such a situation in a simplified manner, without asking the permission of third parties.

Another issue considered by the Constitutional Court concerned the procedure for eviction of relatives of the previous owner from an apartment that is in collateral. The essence of the matter was as follows. A citizen purchased an apartment in a housing cooperative at a public auction and registered ownership of it. Later it turned out that its former owners and their family were registered and permanently reside in the apartment. They did not fulfill the loan agreement secured by housing collateral, as a result of which the apartment was put up for auction. The court allowed the eviction of the debtor spouses, refusing to evict their daughter and her minor children. In refusing to evict, the court referred to the fact that this same daughter retained the right to live in the apartment, since she was included in the order for the provision of this apartment back in the early 90s.

In accordance with this, the new owner of the apartment, through the Constitutional Court, challenged the norm of legislation (Article 19 of the Federal Law “On the Enforcement of the Housing Code of the Russian Federation”), which allows for the possibility of retaining the right to use residential premises for persons who received such a right upon moving into the house, even in the event of foreclosure on this housing as a mortgaged property. The court, in Resolution No. 5-P of March 24, 2015, agreed with the arguments of the new owner and recognized the disputed legislative provision unconstitutional.

In support of its position in the case, the court noted that the Housing Code of the Russian Federation does not currently determine the rights of family members of the previous homeowner who mortgaged the apartment and did not fulfill their obligations to repay the debt. Also, the law does not contain a mechanism for protecting these rights when foreclosure is applied to such residential premises and it is transferred to a new owner. This leads to the fact that the court is accustomed to being guided by the contested norm, which actually equates the rights of family members of the former owner of housing in a housing cooperative to the rights of persons who have terminated family relations with the owner of the privatized residential premises.

In turn, encumbering the ownership of residential premises with the right of family members of its previous owner to use this residential premises significantly limits the powers of its new owner. Moreover, if he was not promptly informed about the existence of rights of third parties to this residential premises, and did not express his consent to its acquisition with the existing encumbrances.

Meanwhile, a significant guarantee of informing the acquirer about the scope of powers and encumbrances transferred to him should be state registration the specified rights, including the right to use residential premises in the house of a housing construction cooperative, which members of the family of its previous owner acquired on the basis of a warrant.

In accordance with this, the legislator was instructed to ensure maximum transparency of information about the rights of third parties to alienated residential premises so that new owners (acquirers) are aware of what kind of real estate and with what encumbrances they receive ownership. Preservation of encumbrances, information about which is not available in the Unified state register rights to real estate and transactions with it should become legally impossible.

The court also called on legislators to ensure simultaneous protection of the rights of new owners of such apartments. At the same time, the Constitutional Court of the Russian Federation concluded that until appropriate changes are made to the legislation, family members of the previous owner included in the order retain the right to use housing. That is, it is not possible now to evict at the request of the new owner.

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The question of the possibility of eviction of the debtor and his family members from the only premises suitable for permanent residence, pledged by the creditor, is of particular importance, since it affects the most vulnerable and socially significant area of ​​human life.

No money? Outside!

For those persons whom the creditor evicts from their only home, the legislator has provided the guarantees contained in Art. 95 of the Housing Code of the Russian Federation. Citizens who have lost their living quarters as a result of foreclosure on housing that was purchased through a loan or targeted loan provided legal entity for the purchase of residential premises, and pledged to ensure the repayment of a loan or targeted loan, if at the time of foreclosure such residential premises are the only ones for them, they have the right to temporarily reside in the premises of the maneuverable fund. That is, within the meaning of Art. 95 of the Housing Code of the Russian Federation, debtors and members of their families should not be evicted to the street, but to the premises of the maneuverable fund.

However, if we analyze the law enforcement practice in disputes about the eviction of debtors from mortgaged housing, it turns out that these persons are evicted from mortgaged apartments to the street, that is, without the provision of other residential premises (maneuverable fund) (Appeal rulings of the Yaroslavl Regional Court dated March 29, 2012 N 33-1552, dated July 23, 2012 in case No. 33-3769/2012; Rostov Regional Court dated June 25, 2012 in case No. 33-7194; Tomsk Regional Court dated July 10, 2012 in case No. 33-1738/2012; Supreme Court Republic of Chuvashia dated 07/04/2012 in case No. 33-2109/2012; Supreme Court of the Republic of Tatarstan dated July 19, 2012 N 33-6168/2012; Samara Regional Court dated August 30, 2012 in case No. 33-7403/2012; Supreme Court of the Komi Republic dated August 23, 2012 in case No. 33-3558AP/2012; Moscow City Court dated July 20, 2012 in case No. 11-12044).

Who is the owner?

Article 35 of the Housing Code of the Russian Federation provides that if a citizen’s right to use residential premises is terminated, this citizen is obliged to vacate the corresponding residential premises, otherwise, at the request of the owner, he is subject to eviction based on a court decision. In other words, only the owner of such premises has the right to demand the eviction of debtors from the only mortgaged housing. As long as the creditor has the status of a mortgagee, he does not have such a right.

Thus, the Orenburg Regional Court did not agree with the position of the lower court, which satisfied claim bank and decided to evict the debtor family from the disputed residential premises and deregister it. The court of first instance proceeded from the fact that the right to use the defendants’ apartment is subject to termination after foreclosure on the disputed residential premises due to the debtors’ failure to fulfill the terms of the loan agreement on the basis of the provisions of Art. 78 Federal Law dated July 16, 1998 N 102-FZ “On mortgage (mortgage of real estate)”, in connection with which the residence and registration of the defendants in the disputed residential premises violates the rights of the plaintiff as the owner of this residential premises to own, use and dispose of the apartment.

The regional court did not agree with this conclusion, since in order to terminate the right to use residential building or an apartment requires not only foreclosure, but also the sale of this property, since until the sale of the mortgaged real estate and registration of ownership of it by the new owner in accordance with clause 2 of Art. 223 of the Civil Code of the Russian Federation, the pledgor, as the owner of this property, can own and use it, as indicated in paragraph. 3 p. 1 art. 1 of Law No. 102-FZ.

Since the bank is not the owner of the disputed residential premises and the decision to foreclose on the pledged property itself does not entail the transfer of ownership of this property from the pledgor to the pledgee, the defendants cannot be evicted from it and deregistered (Appeal ruling of the Orenburg Regional court dated September 11, 2012 in case No. 33-5217/2012).

Other courts have expressed similar conclusions. general jurisdiction(Appeal ruling of the Samara Regional Court dated May 15, 2012 in case No. 33-4430).

The mortgagee's right of ownership to the mortgaged residential premises, which has been foreclosed by a court decision, may arise after a public auction. The pledgee becomes the owner if he left this property for himself in the manner provided for in paragraph 11 of Art. 87 of the Federal Law of 02.10.2007 N 229-FZ “On Enforcement Proceedings”, namely, if the debtor’s property was not sold at secondary public auctions, that is, the auction did not take place, the bailiff sent the claimant an offer to keep this property for himself, which the latter accepted. If a public auction takes place, then the owner of the mortgaged residential premises becomes the third party who won it.

Where do the guarantees end?

Regardless of who acquires the status of owner of the residential premises, it is logical to assume that the new owner will wish to vacate the residential premises from the residence of strangers as soon as possible. The right of the new owner of a residential premises to demand the eviction of persons living there is regulated by Art. 292 of the Civil Code of the Russian Federation, according to clause 2 of which the transfer of ownership of a residential building or apartment to another person is the basis for termination of the right to use residential premises by family members of the previous owner, unless otherwise provided by law.

Carried out on the basis of clause 2 of Art. 292 of the Civil Code of the Russian Federation, occurs without the provision of other residential premises. Arguments of persons evicted from residential premises about the need to provide residential premises from the premises of the maneuverable stock are not accepted by the courts. Law enforcement authorities believe that such arguments are based on an incorrect interpretation of paragraph 2 of Art. 95 of the Housing Code of the Russian Federation, since the requirements of the owners of residential premises are based on the provisions of Art. Art. 209, 292, 304 of the Civil Code of the Russian Federation, to which the guarantees of housing legislation regarding the provision of a flexible fund should not be applied (Decision of the Supreme Court of the Republic of Bashkortostan dated May 29, 2012 in case No. 33-5175/2012).

In other words, law enforcement authorities believe that from the moment the ownership of residential premises sold at public auction arises, this premises ceases to be mortgaged and the persons living in it are no longer subject to special guarantees provided for in Art. 95 Housing Code of the Russian Federation.

The Saratov Regional Court indicated that the debtors’ arguments that the court did not consider the issue of providing the defendants with other residential premises of a flexible fund, a specialized state housing stock areas for temporary residence in accordance with Art. 95 of the RF Housing Code, since the provisions of this article do not regulate legal relations that arose after the residential premises were sold at public auction (Appeal ruling dated October 31, 2012 in case No. 33-6393).

The Magadan Regional Court noted: it is impossible to agree with the arguments that, when deciding to evict the debtors, the court was obliged to provide their family with residential premises from the maneuverable fund, since, after the residential premises were sold at public auction, the debtors are classified as persons , named in Art. 95 LC RF, do not apply (Appeal ruling dated 09/07/2012 N 33-785/12).

The Samara Regional Court outlined the position that the defendants’ reference to the court’s violation of Art. Art. 95 and 106 of the Housing Code of the Russian Federation cannot be taken into account, since the current legislation imposes the obligation to provide residential premises of a flexible stock on the relevant municipal authorities, and not on the new owner of the residential premises (Appeal determination dated June 28, 2012 N 33-6013/2012) .

Reading the Code

We believe that the courts demonstrate a fundamentally incorrect understanding of Art. 95 Housing Code of the Russian Federation. The right of citizens to temporary residence in the premises of a maneuverable fund who have lost their residential premises as a result of foreclosure on these residential premises, which were acquired through a bank loan or other credit organization or funds from a targeted loan provided by a legal entity for the purchase of residential premises, and pledged to secure the repayment of the loan or targeted loan, if at the time of foreclosure such residential premises are the only ones for them, arises regardless of what stage the eviction occurs: before or after holding public auctions. Otherwise, the legal guarantee enshrined in Art. loses all meaning. 95 Housing Code of the Russian Federation. In addition, by virtue of Part 1 of Art. 69 of Law N 229-FZ foreclosure on the debtor’s property includes the stage of forced sale (public auction) and the stage of transfer of property to the claimant. Consequently, Art. 95 of the RF Housing Code implies that the right to temporary residence in the premises of a flexible fund arises from the debtor and members of his family, including as a result of the sale of mortgaged housing at public auction or its transfer to the claimant. The correctness of this position is confirmed by Art. 106 of the Housing Code of the Russian Federation, which states that the rental agreement for residential premises of a maneuverable fund is concluded for the period until the completion of settlements with citizens who have lost residential premises as a result of foreclosure on them, after the sale of residential premises on which foreclosure was applied.

Thus, the eviction of the debtor and his family members from the only mortgaged housing in the cases listed in Art. 95 of the Housing Code of the Russian Federation, should occur only if they are provided with premises of a flexible fund for temporary residence.

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