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The most common methods of securing obligations and the risks associated with them

The main methods of ensuring the fulfillment of obligations for participants in civil legal relations are named in Chapter 23 of the Civil Code of the Russian Federation. For banking practice, the most common methods listed in Article 23 of the Civil Code of the Russian Federation are pledge and surety.

You should immediately turn to law enforcement practice. Despite the apparent simplicity of both collateral and surety as ways to ensure the fulfillment of obligations, in reality disputes related to such collateral may arise between the lender and the borrower. Therefore, when concluding a loan agreement and assuming obligations, the borrower should take into account a number of circumstances and assess all possible legal risks.

For example, according to the terms of the loan agreement, the borrower agreed to transfer as collateral to the creditor, by concluding relevant agreements, three real estate objects and a certain amount of shares. Such a provision did not occur within the period specified in the loan agreement: the borrower entered into only two out of three mortgage agreements with the lender; a securities pledge agreement was also not concluded between the parties. Taking advantage of the right to early withdrawal of the loan established in the loan agreement, the credit institution addressed the borrower with a corresponding demand for early repayment of the entire loan amount due to a violation of the terms of the agreement.

Such early demand, in its legal essence, is a unilateral change in the terms of the loan agreement - the conditions on the period for repayment of the loan by the borrower. Consequently, the provisions of paragraph 4 of Article 450 of the Civil Code of the Russian Federation apply to the bank’s exercise of such its right, which stipulate that the party who is granted the right by agreement to unilaterally change the agreement must act in good faith and reasonably when exercising this right. This rule is a special case of the general inadmissibility of abuse of one’s right, as provided for in Article 10 of the Civil Code of the Russian Federation. In particular, the exercise of civil rights solely with the intention of causing harm to another person, actions in circumvention of the law for an unlawful purpose, as well as other deliberately dishonest exercise of civil rights (abuse of law) are not allowed.

Paragraph 3 of the Information Letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated September 13, 2011 No. 147 “Review of judicial practice in resolving disputes related to the application of the provisions of the Civil Code of the Russian Federation on a loan agreement” also emphasizes that when changing the terms of performance under a loan agreement unilaterally, the bank must act in good faith and do not abuse your right.

It is the reference to Articles 10, 450 of the Civil Code of the Russian Federation and the provisions of paragraph 3 of Information Letter No. 147 that is the main line of defense for borrowers in disputes with banks in case of early repayment of a loan caused by failure to provide sufficient collateral. Judicial practice has not formed a unified approach to the consideration of such disputes.

For example, in disputes between VTB Bank (PJSC) and Mechel companies (case No. A40-15381/2015) and “TGK-2” (case No. A40-22882/2016) In these circumstances, the court sided with the credit institution, indicating that a violation of the bank’s rights was sufficient for early repayment of the loan.

However, there are also opposite examples of judicial practice: resolution of the Arbitration Court of the Ural District dated October 7, 2014 in case No. A07-23635/2013, resolution of the Federal Arbitration Moscow District dated November 25, 2013 in case No. A40-20776/2013, decision of the Arbitration Court of the Nizhny Novgorod Region dated October 30, 2015 in case No. A43- 9526/2015, decision of the Arbitration Court of the Moscow Region dated February 26, 2016 in case No. A41-61510/2015, etc.

In these judicial acts, the courts noted that the plaintiff did not provide sufficient evidence to conclude that there are grounds to consider that any of his rights and interests have been violated, entailing the need to protect them, and provided that the defendant fulfills his obligations in terms of repaying the debt, the claim in fact, it is aimed at obtaining grounds for subsequent early foreclosure of the pledged property, which already secures the borrower’s obligations to the bank. Credit institutions, according to the courts, used formal claims that do not prove the occurrence of circumstances entailing negative consequences for them.

Additional arguments for protecting the rights and interests of the borrower with such a security scheme are the following: regular repayment of credit debt and the absence of delays on the date of filing the claim by the credit institution, sufficient value of the pledged property to repay the issued loan in full, acceptance by the bank of performance under the agreement over a long period of time (actually the use of estoppel construction, etc.).

A risk factor for the borrower is also the right of the bank to apply to the court to declare the borrower insolvent (bankrupt) in the very fact of having a debt without the need to “find it out”. Such treatment negatively affects the reputation and business activities of the borrower.

It should also be noted that the inability to conclude a collateral agreement due to objective circumstances beyond the control of the borrower (mortgagor) is not a basis for releasing the borrower from liability for violating the provisions of the loan agreement.

Conclusion guarantee agreement carries obvious risks for the person acting as the guarantor. But this method of ensuring the fulfillment of obligations also has a feature that should be taken into account.

Paragraph 6 of Article 367 of the Civil Code of the Russian Federation provides that the guarantee is terminated upon the expiration of the period for which it is given specified in the guarantee agreement. If such a period is not established, it is terminated provided that the creditor does not bring a claim against the guarantor within a year from the date of the deadline for fulfillment of the obligation secured by the guarantee. When the deadline for fulfillment of the main obligation is not specified and cannot be determined or determined by the moment of demand, the guarantee is terminated if the creditor does not bring a claim against the guarantor within two years from the date of conclusion of the guarantee agreement.

Thus, when a bank files a claim for debt collection, the guarantor should pay attention to the credit institution’s compliance with the deadlines for filing such a claim. The Supreme Court of the Russian Federation paid special attention to this in its Ruling dated April 10, 2017 in case No. A40-19700/2016.

Conclusion: Pledge and guarantee agreements as ways to ensure the fulfillment of obligations under a loan agreement are highly economically efficient, but carry a number of risks that must be taken into account by the borrower when concluding a loan agreement. Special attention should be paid to the reality of fulfilling the terms of the loan agreement regarding the amount and timing of the provision of collateral and to minimize the risks of non-provision of collateral due to the actions of third parties.

An important factor when a creditor files a claim to collect a loan debt is the ratio of the parties’ negotiating positions: the strong and the weak. Courts often note that contract provisions (especially those that were actually imposed during the negotiation process) are subject to interpretation in favor of the economically weaker party to the contract, which is (obviously) the borrower.

Other ways to ensure fulfillment of obligations

In addition to collateral and guarantees, the parties to a loan agreement often provide for other, less standard ways of ensuring the fulfillment of obligations. Often, the borrower’s claims against a third party, which are assigned in favor of the bank in the event of default on the main obligation, can be considered as collateral.

The closest regulation to such a scheme is the regulation of Chapter 43 of the Civil Code of the Russian Federation in relation to a factoring agreement (financing against the assignment of a monetary claim). The scheme that the parties to a factoring agreement use to secure obligations under a previously concluded agreement (for example, a loan agreement) is that the borrower transfers to the lender (creditor) its rights of claim against third parties as security for the proper fulfillment of its obligation to the creditor. If an overdue loan debt (default of the main obligation) occurs, the creditor exercises its right of claim against a third party and receives performance from such a third party instead of the original creditor (borrower under the loan agreement).

In theory, a factoring agreement in such a scheme allows each party to satisfy its interests: the lender receives performance, and the borrower does not lose a significant amount of money with interest and penalties. But in practice, participants in legal relations face serious difficulties when concluding and executing a factoring agreement as a method of security. The risk lies in the fact that the courts, when examining the legal nature of the concluded agreement, pay attention to the presence of both conditions (elements) of factoring: financing and assignment of the monetary claim.

In the scheme given as an example, independent financing as an element of factoring is absent - it is replaced by financing under a loan agreement. Thus, between the lender and the borrower there are not two separate financings (provision of a loan and financing within the framework of factoring), but only the fulfillment of the obligation to issue a loan by the bank. For the parties to a factoring agreement, this may lead to the court reclassifying the agreement concluded between them as an assignment agreement with the subsequent application of the rules of the Civil Code of the Russian Federation on the assignment of rights to such an agreement. Thus, the court, having come to the conclusion that there is no financing as a necessary element of factoring, may indicate that such an agreement was not concluded, since the parties did not agree on its essential terms.

As a rule, it is the re-qualification of the agreement by the court or the recognition of the agreement as not concluded that are the main risks for the parties when registering non-standard security for the fulfillment of loan obligations. An example of judicial practice reflecting such risks (although not under a loan agreement, but with a similar structure) is Ruling of the Supreme Court of the Russian Federation dated November 2, 2016 in case No. A56-16411/2015. You should also pay attention to the resolution of the Moscow District Arbitration Court dated July 20, 2017 in case No. A40-126361/2015.

Taking into account the legal structures specified in this article, the main risks when choosing a security method are situations in which the security becomes an independent and sufficient basis for a legal dispute between the borrower and the lender under the loan agreement. The obvious consequence for the borrower is the need to choose a method of ensuring the fulfillment of obligations that, from both economic and legal points of view, will be simple and understandable for both parties.

To do this, the borrower should, first of all, assess the real possibility of providing the security that the parties agreed on (the independence of such security from the will of third parties, external circumstances and other factors), objectively assess the sufficiency of the security to cover the loan debt in full, and also determine how indisputable the contractual structure chosen by the parties is if the parties have chosen a non-standard method of ensuring the fulfillment of obligations.

The parties should exclude from the agreements any language that allows for ambiguous interpretation, as well as leaving the possibility for either party to abuse the right.

The term "mortgage" is of Greek origin. Even in Ancient Greece, it was possible to get loans secured by, for example, land. The borrower received money from the lender (mortgage loan), and in order to avoid the temptation to obtain money secured by the same land plot from other creditors, he was obliged to install a special sign (post or stone) on the plot encumbered with the mortgage. This sign indicated that this plot was pledged, that a mortgage loan had already been obtained against it.

A mortgage is a pledge of real estate to secure obligations to the lender. With mortgage lending, the borrower receives a loan to purchase real estate or for other purposes. His obligation to the lender is to repay the loan, and the real estate pledge ensures the fulfillment of this obligation. At the same time, you can buy and mortgage not only housing, but also other real estate objects - land, car, yacht, etc. Real estate purchased with the help of a mortgage is the property of the loan borrower from the moment of purchase. Term mortgage in Russia it is usually used in connection with solving housing problems.

The term "mortgage" in legal terms usually covers two concepts:

A mortgage as a legal relationship is a pledge of real estate (land, fixed assets, buildings, housing) for the purpose of obtaining a loan.

Mortgage as a security - implies a mortgage: a debt instrument certifying the rights of the mortgagee to real estate.

Mortgage lending is lending secured by real estate, that is, lending using a mortgage as security for the repayment of loan funds.

The mortgage is characterized by the following distinctive features:

Firstly, a mortgage, like any pledge, is a way of ensuring the proper fulfillment of another (principal) obligation - a loan or a lease agreement, etc. Consequently, the mortgage is based on the main obligation, since without it it loses its meaning.

Secondly, real estate is always the subject of the mortgage. Real estate includes land plots and everything that is firmly connected with them: enterprises, residential buildings, other buildings, structures.

Thirdly, the subject of the mortgage is always in the possession of the debtor. He remains the owner, user and actual possessor of this property, but is deprived of the right to dispose of it, at least without consent.

It is the mortgage that allows you to combine interests in the most profitable way:

population - in improving living conditions;

commercial banks and other creditors – in efficient and profitable operations;

construction complex - in rhythmic work;

the state – in economic growth and ensuring the rights of citizens to housing.

Participants in the mortgage lending system:

The pledger is an individual. or legal a person who pledges real property as collateral to secure his debt.

Mortgagee (mortgage lender) is a legal entity that issues loans secured by real estate.

Mortgage lending is based on five basic principles: payment, urgency, repayment, security and targeted use of funds. The main guarantee of repayment of loan funds is the collateral of the purchased property. Misuse of borrowed funds, as well as failure to provide the lender with the opportunity to exercise control over the use of funds for their intended purpose, gives the latter the right to demand early repayment of the loan and interest.

The most common option for using a mortgage in Russia is buying an apartment on credit. In this case, as a rule, newly purchased housing is mortgaged, although it is also possible to mortgage an already owned apartment. Mortgage loans are issued by banks, and the conditions Everyone's lending is different. At the state level in Russia, mortgages find support in the form of developed mortgage legislation, as well as mortgage agencies specially created by the state.

A mortgage transaction is a sequence of actions and methods to ensure the fulfillment of contractual obligations, and if they are violated, a set of interactions to satisfy the interests (rights) of the lender. Let us note that the collateral transaction has a complex structure of relationships, i.e., an integrated system of mutually independent partnerships in the housing and mortgage market. Let's consider the infrastructure of a mortgage transaction (Fig. 1).

The structure of a mortgage transaction shows the complexity of its nature and justifies the interdependence of markets: housing, mortgage loans, insurance services and real estate valuation services. Therefore, it is so necessary to realize that in order to form a stable, long-term mortgage loan market, a system for managing mortgage transactions in the regional investment and housing market must be organized. This system can be a set of goals, objectives, methods, methods and techniques for the effective organization of the mortgage process in the region.

Rice. 1 Structure and relationships of a mortgage transaction.

When managing collateral (mortgage) transactions, the end result in the consumer market is the purchase and sale of an apartment using a mortgage loan. In the mortgage market - efficient management, execution and completion of mortgages. In the insurance market - completion of a home insurance contract that is pledged as collateral. In the market for valuation services - an act on the valuation of residential real estate. In the market for services for registration of rights to real estate and transactions with it - the introduction into the real estate register of a note on the rights of ownership or pledge over it, termination of the pledge.

Management of collateral (mortgage) transactions is implemented when organizing the mortgage process, which can be characterized as multifunctional, long-term, and risky. Let's consider the structure of the mortgage process (Fig. 2).

Rice. 2 Structure of the mortgage process.

Any business process presupposes the presence of a resource base, the organization of conditions for entering the business process, its completion, exit from the business process and achieving the expected socio-economic result. Business process management includes economic methods such as planning, analysis, synthesis, forecasting, and adjustment of economic indicators. In this case, management methods adopted in logistics, strategic, and financial management can be used. The fundamental goal is to achieve the main goal of management - launching, forming and maintaining a stable and long-term mortgage process.

Applying for a mortgage is a multi-stage procedure, including collecting documents, going through a bank’s credit commission, searching for suitable housing, assessing and insuring it, and concluding a mortgage agreement.

The procedure for obtaining a mortgage loan from a bank consists of several stages and begins with the preliminary qualification of a potential client and the completion of an application for a loan. At the next stage, the bank collects and verifies information about the client and the collateral, assesses the likelihood of repayment of the loan (this procedure is called underwriting the borrower), and then makes a decision to issue a loan or give a reasoned refusal.

1. If the decision is positive, the lender calculates the loan amount and forms other important conditions for its issuance (term, interest rate, repayment procedure). Then the selection of an apartment that meets the financial capabilities of the borrower and the requirements of the lender begins, and the subject of the mortgage is assessed. The last stage is the conclusion of a purchase and sale agreement between the borrower and the seller, as well as a loan agreement and a mortgage agreement between the borrower and the lender. Under a mortgage agreement, the borrower (mortgagor), when mortgaging real estate acquired through a loan, loses the right to dispose of it, but retains the right of ownership and use. The creditor becomes the pledge holder, which gives him the opportunity, in the event of failure by the borrower to fulfill his obligations under the loan agreement, to obtain satisfaction of his monetary claims against the debtor from the value of the pledged property, preferentially before other creditors of the pledgor. The pledgee has the right to check the availability and condition of the property and demand that the necessary measures be taken to preserve this property. It is mandatory to insure the subject of the mortgage, as well as the life, health and ability to work of the borrower at his expense (Article 31 of the Federal Law “On Mortgage (Pledge of Real Estate)”). The mortgage agreement includes the following conditions: subject of the mortgage; the price of the property being mortgaged; the essence of the main obligation secured by the mortgage (provision of credit funds); loan amount and interest; deadline for fulfillment of the main obligation; requirements for insurance of property being mortgaged; grounds for foreclosure on the subject of mortgage and others (Part 4, Article 9 of the Federal Law “On Mortgage (Pledge of Real Estate)”). The mortgage agreement is subject to state registration (Part 1, Article 10 of the Federal Law “On Mortgage (Pledge of Real Estate)”).

In addition, the mortgagor draws up a mortgage, which is transferred to the creditor by the body carrying out state registration of mortgages, and certifies the right of its legal owner “to receive execution of a monetary obligation secured by a mortgage, without providing other evidence of the existence of this obligation,” as well as “the right of pledge on property encumbered with a mortgage" (Article 13 of the Federal Law "On mortgage (mortgage of real estate)").

2. After state registration and settlement of settlements with the real estate seller, the borrower moves into the purchased apartment, then he must make payments to repay the loan, while the lender accepts payments from the borrower and keeps appropriate records of the repayment of principal and interest. After fulfilling the obligations under the loan agreement, the loan is considered repaid, and the mortgage is terminated, which is recorded in the state register. If the borrower fails to fulfill its obligations, foreclosure of the collateral is carried out with its subsequent sale in order to repay the borrower's debt to the lender. The remaining amount after repayment of the loan, minus the costs associated with the foreclosure procedure and the sale of housing, is returned to the former borrower. Thus, the following main participants operate in the long-term residential mortgage lending market:

Borrowers (buyers of real estate) - individual citizens of the Russian Federation, persons who have entered into loan agreements with banks (credit organizations) or loan agreements with legal entities (not credit organizations), under the terms of which the funds received in the form of a loan are used to purchase housing; real estate sellers; lenders (banks and other credit organizations whose main functions are: providing a mortgage loan based on an assessment of the solvency and creditworthiness of the borrower in accordance with the requirements and conditions of lending; execution of a loan agreement (loan agreement) and a mortgage agreement; servicing issued mortgage loans).

Operators of the secondary mortgage loan market (housing mortgage lending agencies) are specialized organizations that refinance lenders issuing long-term mortgage loans to the population (their main functions include: refinancing loans based on established standards and requirements for the mortgage lending procedure; issuing emissive mortgage-backed securities; attracting funds from investors in the housing lending industry; assisting lenders in introducing sound mortgage lending practices and developing types of mortgage loans that are more affordable for borrowers and less risky for lenders).

Bodies of state registration of rights to real estate and transactions with it (the main functions of which are: registration of transactions for the purchase and sale of residential premises, registration of the transfer of ownership rights to the new owner - registration of mortgage agreements and mortgage rights; storage and provision of information on property rights and encumbrance of housing collateral to all participants in the mortgage market).

Insurance companies licensed to provide property insurance, personal insurance for borrowers and civil liability insurance for mortgage market participants.

Appraisers are legal entities and individuals who have the right to carry out a professional assessment of residential premises that are the subject of collateral for mortgage lending

Real estate firms are legal entities that are professional intermediaries in the housing purchase and sale market. The functions of realtors include the selection of options for the purchase and sale of housing for borrowers and housing sellers, assistance in concluding purchase and sale transactions, organizing the sale of housing on behalf of other participants in the housing market, participation in organizing auctions for the sale of foreclosed housing.

Investors are legal entities that purchase mortgage-backed securities issued by lenders or secondary market operators. These include pension funds, insurance companies, investment banks, mutual funds, etc.

Infrastructure links of the mortgage lending system - passport services, guardianship and trusteeship authorities, etc.

Mortgage loans are provided based on an assessment of the borrower's solvency and creditworthiness in accordance with the requirements and terms of the loan. Potential borrowers are required to submit to the bank identification documents, a certificate of marriage, birth of children, documents serving as the basis for registration of permanent residence, certificates of income, extracts from the house register confirming the absence of arrears in payment of utility bills, a full set information about the borrower’s property, information about the borrower’s obligatory payments (writs of execution, alimony, payment for goods purchased in installments, etc.).

When purchasing residential premises on the secondary market, the creditor bank is forced to check their legal purity, for example, the absence of a lien imposed on this apartment. Under a mortgage agreement, the lender becomes the mortgagee, which gives him the priority right to receive, if necessary, satisfaction from the value of the mortgaged residential premises. The subject of the mortgage is residential buildings and apartments intended for permanent residence. These can also be parts of a residential building or apartment, consisting of one or more isolated rooms, but provided that they are structurally isolated, can be used independently and retain their functional purpose. Real estate objects not intended for permanent residence can also be the subject of a mortgage only on a general basis.

Thus, a mortgage loan is a long-term loan (in different countries terms vary from 10 to 40 years), provided, as a rule, for the purchase of real estate secured by this real estate as security for an obligation at 3–15% per annum. Due to their long-term nature, such loans are especially convenient in cases where payment of interest and repayment of the principal debt is possible only from current, usually low, income, that is, in small installments. Which is especially attractive for people with average earnings, who make up the so-called middle class. All of the above features of collateral are typical for residential mortgage lending.

The process of privatization of residential premises, which began with the adoption of Federal Law of the Russian Federation of July 4, 1991 No. 1541-1 "", involved residential premises owned by citizens by right of ownership into full-fledged civil circulation. The apartment can now be sold, donated, exchanged, pledged and other transactions can be made. In recent years, the method of formalizing borrowed relations and collateral to secure it through the conclusion of a purchase and sale transaction has become widespread.

The essence of this method is as follows: the apartment owner who needs borrowed funds and the lender providing such a loan, instead of drawing up the loan and real estate pledge agreements provided for in such cases, draw up a purchase and sale agreement for the apartment with the right to repurchase this apartment by the borrower. The complexity of the mechanism lies in the fact that the legislation does not directly provide for such a method of lending and securing loan obligations. For this reason, many mistakes are made when concluding such transactions. At the same time, the unprotected party in this scheme becomes the borrower, who often ends up on the street. Often, careless citizens become victims of scammers who are well prepared in the legal aspects of these relationships. Let’s try to understand this material using examples from judicial practice to understand what mistakes borrowers make.

Error No. 1. Drawing up a loan and collateral agreement for the purchase and sale of an apartment instead of a transaction

The first and main mistake. The loan agreement and the method of securing it - the collateral agreement - are dedicated and respectively. The content of these transactions is that the borrower receives ownership of property or money from the lender with the obligation to return it within the period specified in the agreement. In this case, the pledged real estate serves as security for the repayment of the loan, while remaining in the ownership and possession of the borrower, but pledged to the lender - the mortgagee. If the loan is not repaid within the agreed period, the mortgaged property is subject to sale. As a general rule, this is done through the judicial procedure of foreclosure and sale of property at public auction. The loan is repaid from the proceeds from the sale, and the remaining funds are then returned to the borrower. By formalizing the transaction of a loan and collateral of an apartment by immediately concluding a contract for the sale of real estate, the entire mechanism provided for by law for cases when the borrower fails to fulfill his obligations and the pledged property is subject to sale at auction is excluded. As soon as the borrower makes late payments (or maybe not, because the lender is now the owner), the lender, the owner of the property, has the right to immediately demand the release of his property. This scheme for formalizing loan-collateral relations in no way protects the debtor and completely puts him at the mercy of the creditor.

EXAMPLE

"T. filed a lawsuit against S. Demanding that the agreement for the sale and purchase of an apartment, concluded on August 26, 2013 between T. and S., be recognized as an imaginary transaction. In support of the stated claims, the plaintiff indicated that in August 2013 she needed a sum of money in the amount of *** rub. Defendant S. agreed to provide funds, offering to secure the loan agreement by concluding an agreement for the purchase and sale of an apartment with the right to purchase after repayment of the loan. According to the plaintiff, the apartment purchase and sale agreement actually covered the loan agreement." The plaintiff's claims were denied, and the apartment remained the property of the creditor.

Error No. 2. Lack of a properly executed agreement on a cash loan and the right to repurchase the apartment

If the loan and pledge are nevertheless formalized in a real estate purchase and sale agreement, it is necessary that the relationship regarding the loan and the right to repurchase the real estate be formalized separately. Otherwise, the court will only be able to ascertain the fact that the parties entered into a real estate purchase and sale transaction, and any objections of the borrower that he paid under the loan agreement, or that he has the right to buy back his real estate, will be ignored by the court.

EXAMPLE

From the resolution of the Presidium of the Moscow Regional Court dated August 19, 2015 No. 394 in case No. 44g-196/15, 4G-3858/2015:

"A.V.I. filed a lawsuit to declare the land purchase and sale agreement invalid, to apply the consequences of the invalidity of the transaction to S., A.M.P., A.V.P., JSC "AKB Moscow Regional Bank", the Office of the Federal Service for State Registration of the Cadastre and cartography in the Moscow region. In support of the stated requirements, he referred to the fact that a loan agreement was actually concluded between the parties. He returned the money received as a loan, but the agreement to repurchase this property concluded with S. was not registered, and the plot with the house was sold to S.A.M.P., to whom the property was alienated to A.V.P.” The appeal ruling of the Moscow Regional Court refused to satisfy the claims; by the resolution of the Presidium of the Moscow Regional Court dated August 19, 2015 No. 394 in case No. 44g-196/15, 4G-3858/2015, the appeal ruling of the Moscow Regional Court was canceled, the case was sent to a new consideration in the Vidnovsky City Court of the Moscow Region.

Error No. 3. Inconsistencies between the terms of the purchase and sale agreement on the price of real estate and the actual agreements

It often happens that in the apartment purchase and sale agreement covering the loan and collateral transaction, the parties indicate a completely unrealistic price for the property, usually more than the borrowers actually receive as a loan. There is no need to explain that this cannot be done. After all, even if the purchase and sale transaction is declared invalid by the court, the borrower will have to return exactly the amount that the parties indicated in the purchase and sale agreement for the object.

EXAMPLE

"During the negotiations, A. handed over a package of documents for the disputed apartment, and subsequently, A. appeared at the address:<...>for concluding a loan agreement and a pledge agreement. However, S. said that the loan would be formalized by a purchase and sale agreement with a buyback, and the agreement would be concluded not with the company, but directly with S. As A. points out, the purchase and sale agreement indicated the price of the apartment in the amount<...>, while she intended to obtain a loan in the amount<...>». By court decisions in this case, the borrower was evicted from the apartment, which he had previously sold under a purchase and sale agreement. The courts did not take into account the borrower’s arguments that the loan and collateral transactions were concluded in this way.

It should also be noted that the practice of specifying in the purchase and sale agreement a price greater than what was required for the loan and was actually transferred to the borrower is numerous. In this way, experienced lenders engaged in lending activities on a professional basis, firstly, give the purchase and sale transaction a legal appearance, anticipating the objections of the borrower, which he may state in court that the amount borrowed is much less than the real market value apartments. To such arguments from the borrower, sophisticated lenders respond that the borrower, the seller, received the full market value of the property. Secondly, even if the court subsequently declares the real estate sale transaction invalid, the borrower will have to return the amount that the parties indicated in the purchase and sale agreement. Such actions of the lender give grounds to raise the question of criminal prosecution of persons guilty of defrauding borrowers. However, in the absence of evidence of the borrower’s arguments that he actually received a significantly smaller amount, it can be difficult, and sometimes impossible, for courts and law enforcement agencies to bring fraudsters to justice.

Mistake No. 4. Overestimating your financial capabilities and overestimating the legal consequences of non-payment of the loan

When agreeing to conclude a purchase and sale agreement instead of loan and pledge agreements, the borrower must understand that he will not receive the right to even the slightest delay or leniency for any other violation of his obligations. For this reason, a correct assessment of your financial capabilities is of great importance. The current legislation establishes exceptions when the creditor does not have the right to demand the sale of the pledged property of an overdue borrower (Article 54.1 of the Law "").

As stated above, a borrower who has sold his property to a lender such guarantees, provided for by Federal Law No. 102-FZ of July 16, 1998, is deprived. There are no guarantees that the property will be returned to the borrower even if he properly fulfills his obligations to repay the loan.

EXAMPLE

From the appeal ruling of the Moscow City Court dated March 18, 2016 in case No. 33-386/2016:

"In support of the claims, K.M., the plaintiff, indicated that she entered into a loan agreement with an employee of the agency B. with collateral, under the terms of which B. (the lender) provided a loan in the amount of *** rubles. for a period of up to ***, In pursuance of the terms of the loan agreement, on the day of its signing, ***, K.M. entered into a donation agreement with B. for a share in the apartment. Despite the absence of violations of the terms of the loan agreement on her part, before the expiration of the loan agreement with collateral, on July 16, 2014, B. entered into a donation agreement with N. for a 1/2 share of the specified apartment." By court decisions in this case, the borrower was refused to invalidate the agreement. The property remained in the hands of the lender.

It is a misconception that the court, when considering a creditor’s claims to evict an overdue borrower, will take into account that the housing sold in this way is the debtor’s only place of residence, etc. For the court, such arguments will not matter.

EXAMPLE

"In support of the claim to challenge the purchase and sale agreement, the plaintiff indicated that she did not receive any money for the sale of the apartment, the acceptance certificate was signed formally and does not reflect the circumstances of the transaction, she never had any intention to sell the apartment, she lived and lives in it with her family, she has no other place to live..."

The arguments of the plaintiffs’ appeal that they are still using the disputed property, in the opinion of the Judicial Panel, are not legally significant circumstances when considering the plaintiffs’ claims and do not indicate the sham of the purchase and sale agreements for apartments and non-residential premises.” As can be seen from the text of the judicial act, the borrower was evicted from the apartment.

About methods of judicial protection

As a rule, the method of defense for the borrower is a claim to recognize the purchase and sale transaction as a sham transaction (), sometimes the argument about the enslavement of the transaction, that is, a transaction concluded on conditions unfavorable for the borrower, and the application of the consequences of the invalidity of these transactions, that is on the return of lost property back to the borrower. However, cases of satisfaction of such claims are not frequent; they depend largely on the ability of the plaintiff to prove the falsity of the transaction using various evidence, which is not easy. The Supreme Court spoke about the qualification of sham transactions in:
"According to a sham transaction, that is, a transaction that was made to cover up another transaction, including a transaction on different terms, with a different subject matter, is void. In connection with pretense, only a transaction that is aimed at achieving other legal consequences and covers a different will of all participants in the transaction can be recognized as invalid. The intention of one participant to make a sham transaction is not enough for the application of this rule...”

As you can see, there are legal grounds for challenging such transactions, but a negative outcome, as a rule, for the borrower is associated with the lack of evidence of the occurrence of borrowed obligations and the collateral relations of property arising from them.

As a main piece of advice, it is recommended to conclude a loan and real estate pledge agreement. Agreements in this case are drawn up in writing, and the pledge agreement and the right of pledge are also subject to state registration (and Art. Art. and the Law " ", respectively).

In the event that the parties to the transaction nevertheless come to an agreement that the loan repayment should be secured by the transfer of ownership of the borrower’s real estate, along with the purchase and sale agreement, an agreement should be concluded that gives the borrower the right to buy back his property and imposes a corresponding obligation on the lender sells this real estate to the borrower (as a rule, this is a preliminary agreement for the sale of real estate, but another agreement may be concluded reflecting the security nature of the transfer of real estate into the ownership of the lender). It would also be useful to include conditions on the security nature of the real estate sale transaction in the loan agreement itself.

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. Thus, the pledge creates for the creditor the same property result as actual performance.

In civil law, a pledge is understood as the right of a creditor (pledgee) to receive compensation from the value of the pledged property in priority over other creditors of the person who owns this property (the mortgagor), with the exceptions established by law, clause 1, article 334 of the Civil Code of the Russian Federation.

In accordance with the law, the lender and the borrower sign a pledge agreement, which must be concluded in writing, simple or notarized. When concluding a pledge agreement, it is very important to comply with its form and, if necessary, the registration procedure. Failure to comply with this rule entails the invalidity of the pledge agreement Art. 333 Civil Code of the Russian Federation.

Notarization of the pledge agreement is necessary in the following cases:

• - pledge of real estate, enterprises or property complexes;
• - if the pledge agreement is concluded to secure obligations under the agreement, which must be notarized;
• - at the request of one of the parties.

In addition, a real estate pledge agreement requires additional state registration with the technical inventory bureau (BTI), land committees, ship registers, traffic police and other relevant bodies, clause 1, article 331 of the Civil Code of the Russian Federation.

The essential terms of the pledge agreement are the subject of the pledge and its valuation, the essence, size and period of fulfillment of the obligation secured by the pledge, as well as the condition regarding which of the parties (the pledgor or the pledgee) has the pledged property.

The subject of the pledge can be any property, including things and property rights (claims), with the exception of property withdrawn from circulation, claims inextricably linked with the person of the creditor, and other rights, the assignment of which to another person is prohibited by law, as well as securities Art. 336 Civil Code of the Russian Federation. At the same time, the property must meet two criteria: acceptability (qualitative certainty of the collateral) and sufficiency (quantitative certainty of the collateral).

When monetary valuation of the pledged property, which is carried out by agreement of the parties at market prices, sometimes provides for a corresponding indexation of the value of the pledged property or the right of the pledgee to revaluate it at the time of foreclosure.

The pledge secures all claims of the creditor-pledgee that arose at the time of their presentation, unless otherwise provided by the agreement. Among these requirements are:

• a) the amount of principal and interest;
• b) expenses of the creditor in connection with the fulfillment of the obligation, including costs associated with the public sale of property, holding auctions, competitions, payment of commissions, etc.;
• c) losses of the creditor associated with the payment of interest and penalties;
• d) the lender's expenses related to the maintenance of the property.

All these amounts are attributed to the mortgagee and are subject to reimbursement from the pledged property.

The right of pledge arises from the moment of concluding a pledge agreement, and in relation to property that is subject to transfer to the pledgee - from the moment of transfer of this property, unless otherwise provided by the pledge agreement.

Before concluding a contract, a collateral verification report is drawn up with an on-site visit. A representative of the lending department checks the actual availability and documentary (accounting) data of the collateral. In this case, an act is drawn up, signed by a representative of the bank, the manager and chief accountant of the borrower.

Depending on the location of the subject of pledge, a pledge is allowed, both with and without transfer of the pledged property (thing) to the pledgee. The Civil Code uses precisely this feature to classify pledges into types. The Pledge Law distinguished the types of pledge somewhat differently: a pledge with the transfer of the pledged property to the pledgee (mortgage) and a pledge with the pledged property remaining with the pledgor, Article 5 of the Law “On Pledge”.

Pledge without transfer of collateral property. A pledge without transferring the pledged property to the pledgee has become most widespread in domestic and foreign practice compared to the second type of pledge, since it allows the borrower (pledgor) to continue to operate using the pledged property.

The law provides that the pledged property remains with the pledgor, unless otherwise provided by the agreement. The property on which the mortgage is established, as well as the pledged goods in circulation, are not transferred to the mortgagee.

In accordance with the Civil Code of the Russian Federation, a mortgage is understood as a pledge of land, enterprises, buildings, structures, non-residential premises, apartments and other real estate.

Under a mortgage agreement, only real estate can be pledged, namely: land plots, subsoil plots, isolated water bodies and everything that is firmly connected to the land.

When mortgaging a land plot, the right of pledge does not extend to the buildings and structures of the mortgagor located or erected on it, unless the agreement provides for another condition.

However, not all property can be the subject of a mortgage. It is not permitted to mortgage subsoil plots, specially protected natural areas, other property withdrawn from circulation, property that cannot be foreclosed on in accordance with federal law, multi-apartment and individual residential buildings and apartments that are in state or municipal ownership, as well as property in respect of which privatization is prohibited in accordance with the procedure established by federal law.

When mortgaging an apartment in a multi-apartment residential building, part of which is in the common shared ownership of the mortgagor and other persons, the corresponding share in the common ownership of the residential building is considered mortgaged along with the residential premises.

The estimated value of the subject of the mortgage is determined by agreement between the mortgagor and the mortgagee and is indicated in the agreement in monetary terms, while the estimated value of the land plot cannot be set below its standard price.

The agreement may provide that the mortgage secures the mortgagee's claims to the extent that they are at the time of their satisfaction at the expense of the pledged property or in a fixed amount.

When concluding a mortgage agreement, the mortgagor is obliged to warn the mortgagee in writing about all the rights of third parties to the subject of the mortgage known to him at the time of state registration of the mortgage (rights of pledge, use, lease, easements, that is, rights of limited use) and other rights. Failure to fulfill this obligation gives the creditor of the main obligation the right to demand early fulfillment of the obligation secured by the mortgage or a change in the terms of the mortgage agreement.

The creditor under an obligation secured by a mortgage has the right to check, using documents and in fact, the existence, condition and conditions of maintenance of the property pledged under the mortgage agreement. This right belongs to the creditor under an obligation secured by a mortgage even if the pledged property is transferred to the mortgagor into the possession of third parties.

A pledge involving the transfer of the pledged property to the pledgee (mortgage). Various types of property (vehicles, gold and other precious metals, currency, stock values) can be used as collateral left at the disposal of the pledgee.

Stock values ​​are understood as securities freely traded on the exchange market (shares and bonds of enterprises, government securities), duly registered in an authorized depository or register. A corresponding entry must be made in the depository or register regarding the transfer of securities as collateral. Until this entry is cancelled, the pledgor cannot sell these securities.

When a property right certified by a security is pledged, it can be transferred to the pledgee.

The pledge of currency values ​​(foreign currency, securities in foreign currency), gold and other precious metals in products can be used as a pledge. It is especially important here that such operations are permitted only to authorized banks that have the appropriate licenses.

When lending, the Central Bank accepts gold and precious metals in products, and government securities as collateral.

Russian legislation provides for two modes of foreclosure on mortgaged property: in court or out of court. The judicial procedure was provided for in the Law of the Russian Federation “On Pledge”. Extrajudicial procedure first appeared in connection with the entry into force of the Civil Code of the Russian Federation.

Satisfying the pledgee's claim at the expense of the pledged real estate without going to court is permitted only on the basis of a notarized agreement between the pledgee and the pledgor, concluded after the reasons for foreclosure on the pledged property arise. The provision regarding the right of the pledgee to foreclose on the pledged real estate without filing a claim in court, contained directly in the pledge agreement, must be declared invalid.

In a number of cases, foreclosure on pledged property can only be made by court decision when:

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

The law provides for mandatory registration of movable property (vehicles) with the traffic police in the area where the vehicle is registered.

When the subject of the pledge is rights of claim (for example, a deposit in a bank), lease rights and other property rights, foreclosure on them can be imposed (if the loan obligation is not fulfilled), usually in court.

If the subject of the pledge is property rights limited in duration, then they are transferred to the pledgee bank only until the end of this period.

The law provides for the termination of bail in the following specific cases:

• - with the termination of the obligation secured by the pledge;
• - if the legislator notified the pledgee of the threat of loss or damage to the pledged property;
• - in the event of the destruction of the pledged item or termination of the pledged right, if the pledgor did not exercise the right to restore the pledged item within a reasonable time or replace it with other equivalent property, unless otherwise provided by the agreement;
• - in case of sale of pledged property at public auction, as well as in a situation where its sale turned out to be impossible.

The sale of pledged property is carried out by sale at public auction in the manner established by the Civil Procedure Code of the Russian Federation and the Civil Code of the Russian Federation.

A bank loan secured by real estate in normal economic conditions is one of the most popular and attractive for a lender. At the same time, any banking system can issue a limited number of mortgage loans due to their long-term nature and significant risks.

Issuing funds to individuals or organizations for a bank or microfinance organization always entails the risk of not getting it back. To protect its interests from unscrupulous borrowers, the lender uses a legal mechanism to secure obligations. Let's consider what collateral for a loan is, what pros and cons it has for the borrower and for the bank.

Legal nature

Many banks and other credit organizations today offer preferential terms for those borrowers who are ready to enter into a secured loan agreement. With this measure, the bank insures itself against failure to fulfill its obligation to repay the debt.

A loan, especially a long-term one, is always a high-risk transaction.

The borrower may lose his job or other income, get sick, die, go to another country and get lost there, etc. In such a case, the bank has a high chance of not returning the funds issued, not to mention the interest due for their use.

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Civil legislation has provided a special mechanism that protects the creditor and allows him to get his money back in almost any case. We are talking about measures to ensure the fulfillment of the obligations listed in Chapter. 23 Civil Code of the Russian Federation.

Even before the transaction is concluded, the parties agree that if the borrower is unable to repay the debt, the creditor will be able to obtain funds due to him from other sources, for example, from the debtor’s property transferred as collateral.

Collateral is a separate transaction that is formalized accordingly.

Species

The Civil Code provides for only seven ways to ensure the conscientious fulfillment of obligations:

• deposit;
• penalty;
• security deposit;
• independent guarantee;
• pledge;
• surety;
• holding things.

When concluding a loan agreement, only a penalty, a guarantee and a pledge are used, as they are most appropriate to the nature of the transaction. The presence of collateral allows the bank to rely on the good faith of the debtor, which is reflected in the proposed conditions. Let's consider the features of each method and the scope of their application.

Penalty

The penalty clause, as a rule, is written directly into the loan or credit agreement itself. It is a punitive measure, according to the terms of which, for late repayment of the entire debt or regular payment, an additional monetary fine is charged at a time, as well as a penalty for each day of delay in the form of a certain percentage of the amount.

The longer the delay lasts, the greater the penalty becomes.

The use of this interim measure is very popular among so-called microfinance organizations that offer short-term loans at a fairly high interest rate. They issue funds without thoroughly checking the borrower and therefore have a high chance of not getting them back.

However, a high penalty can only affect the behavior of a obviously conscientious debtor. He will pay the borrowed amount and interest on time so as not to overpay. If the money was taken without the intention of returning it, then the size of the penalty does not matter.

Video: How to draw up an agreement

Pledge

More serious credit institutions, such as banks, prefer to use collateral as a security measure. The peculiarity of this method is that for the entire period that the loan agreement is in effect, the debtor transfers some valuable property to the bank.

If it is impossible to repay the debt, the collateral may be seized from the owner by the bank and sold. The funds received in this way are used to repay the debt and interest on it.

If the funds are returned on time and in full, the pledged property is returned to the owner.

Quite expensive and highly liquid property becomes the subject of collateral in a bank:

• residential buildings and apartments;
• enterprises;
• land plots;
• commercial real estate;
• new cars;
• products made of precious metals;
• securities.

Banks are most willing to accept real estate as collateral. This is due not only to its high cost, but also to the value of such property for the owner.

Not wanting to literally lose the roof over their head, the borrower will make every effort to repay the debt on time. There is a special term for real estate collateral that is familiar to many today - mortgage.

Most often, the collateral is residential premises, less often - land plots. This is due to the imperfection of land legislation and quite sharp fluctuations in land prices.

You can offer an enterprise's property complex or commercial premises as collateral using special programs for entrepreneurs.

Another popular way to secure a loan is to pledge the car purchased with it.

Surety

If you choose a guarantee as collateral for a loan, you will not need to transfer property to the bank. The essence of this method is that, together with the borrower, a third party, the guarantor, also has obligations to the bank.

And if the borrower does not repay the debt or part of it, the bank has the right to demand that the guarantor do this. But only after repayment from the debtor himself failed. The liability of the guarantor is subsidiary.

It can be either a citizen or a legal entity. Sometimes the same agreement provides for the involvement of several guarantors at once.

There are a number of differences from a guarantee similar in meaning to a surety:

• only a commercial company or bank acts as a guarantor;
• the borrower and the guarantor are jointly and severally liable to the lender;
• The creditor bank has the right to apply for debt repayment to any party to the transaction or to both at the same time.

Drawing up an agreement securing a loan

A penalty, as a security measure under a loan agreement, concerns only two parties to the transaction and is written directly in the document itself. There is no need to perform any additional actions, nor do you need to draw up separate documents.

The application of a penalty if the borrower violates the terms of the agreement occurs automatically.

Methods of security such as collateral or surety are a completely different matter. Executing a transaction using them requires compliance with a number of rules. Let's take a closer look at them.

The use of collateral as a measure of loan security is reflected in the main agreement. But the transfer of property itself also requires the execution of a separate agreement - a pledge. This is an additional obligation that imposes special responsibilities on its participants.

We offer, which must be in writing.

If real estate (mortgage) is pledged, then the transaction must undergo state registration, twice: when concluding an agreement and when it is terminated after full repayment of the debt.

The guarantee is also formalized in a separate agreement. It is between the one who provided the funds and the guarantor.

Before the document is signed, the bank or other organization acting as a lender will require information about the solvency of the candidate guarantor.

Each of the three parties receives a copy of the main agreement. Much less often, a transaction with a guarantee is formalized by a single, tripartite document.

The main feature of loan security agreements is that they are additional in nature and are valid only for the same period as the main obligation. After its completion, they also cease.

Pros and cons of the deal

When deciding to receive funds under a secured loan agreement, you should carefully weigh all the advantages and disadvantages of such a transaction. And also soberly assess your financial capabilities so as not to be left without money or property. Let us examine in more detail what the benefits of such a deal are for each of the participants.

For the bank

By concluding a secured transaction, the lender receives a guarantee of the return of his funds. He will be able to receive both if the debtor repays the debt on time, and if he fails to do this for various reasons. This is a definite plus.

However, if the borrower is unable to repay the debt, then the lender will bear all the hassle and all expenses associated with the sale of the pledged property or contacting a guarantor. Such activities are usually non-core and require additional costs.

For the borrower