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The legislation does not make it a mandatory requirement to secure a loan upon receipt. In such a situation, credit institutions have the right to set their own rules and conditions, since issuing large sums of money for a long period of time, without additional guarantees, is quite a risky business.

Thus, loan collateral acts as a set of legal measures aimed at reducing the risk of non-repayment of borrowed funds and the lender receiving additional guarantee measures.

What it is

Currently, there are a large number of institutions operating in the financial market, putting forward various conditions and lending programs. Getting a loan has become not a problem and many clients believe that banks issue funds to any category without putting forward strict requirements.

In fact, such organizations always provide for their risks and include their minimization in the terms of borrowing, thereby minimizing them.

Two instruments guarantee the maximum level of return on borrowed funds:

1. Checking the applicant's solvency.
2. Loan collateral.

Client verification options depend on the amount they request. The larger the amount, the more thoroughly it will be checked. The check is carried out by the bank's security service and the credit committee.

Securing a loan is an acceptable and legal procedure followed by banks. Most often, institutions require property that is highly liquid as collateral.

The classic type is real estate and vehicles. To expand security measures, banks began to accept jewelry, securities, deposit accounts, etc. as collateral.

Collateral is used to ensure that the transaction being concluded is as safe as possible for the lender. It provides a guarantee that the issued loan will be fully repaid or if the client does not fulfill his obligations under the agreement, the lender will be able to return his funds in any case.

Thus, interim measures are an established guarantee of the return of funds.

When accepting a secured loan obligation, the borrower must be aware that in the event of failure to repay the debt, the lender will receive legal title to the collateral property. If we are talking about a guarantee, then the persons who acted as guarantors will assume the credit obligations of the applicant.

Basic conditions of accommodation

The main conditions for placing collateral include:

When placing collateral property, its material assessment is carried out	and the condition is written down, including indicating its total estimated value
If you fail to fulfill your obligations	the collateral becomes the property of the creditor
Only citizens with Russian citizenship can apply.	Any property of the client that has a certain value can act as collateral
Another means of security may be the involvement of guarantors.	if a person fails to repay the loan taken in a timely manner, all responsibility for its repayment falls on the guarantors
Through the court, the guarantor may be held liable for property liability in terms of repayment of the debt obligation.	security may be a penalty charged in case of late payments on the part of the client

What kind of collateral will be chosen is decided individually when agreeing on the terms of the loan between both parties.

Video: how to draw up a loan agreement correctly

Applying for a loan

A secured loan is issued in the usual manner, that is, a potential applicant applies to a credit institution with an application. The main thing is that the terms of lending should include the provision of certain security for the transaction being concluded.

Basic moments:

Securing a loan agreement

Collateral is a popular measure that gives the bank additional guarantees for timely repayment of the loan.

Existing types

The most common interim measures are:

Quite often, security is required when participating in various competitions, tenders, for the supply of certain goods and services. The participant in the procedure does not always have the necessary amount to confirm his financial solvency.

In this case, a loan is issued to secure the application. This type is issued for a period of validity.

Each credit institution establishes specific security measures independently and, in agreement with the client, adjusts them during the transaction process.

Secured by real estate collateral

The most popular loan collateral is real estate. Having owned such property, the borrower can count on receiving a fairly large amount of money for a long period of time, and the lender can expect a return on their investment.

Among the types of real estate that can act as collateral are:

• apartments, houses;
• plots of land;
• summer cottages;
• garages;
• real estate with commercial status.

Many credit institutions accept residential real estate as collateral, since it can be quickly and profitably sold in the event that the borrower is unable to repay the borrowed funds.

Land and summer cottages are accepted less frequently, since the legislation in this area is not fully regulated and problems often arise with the sale of property. In addition, the price of land and dachas can change quite quickly.

In special loan programs, garages and commercial real estate can act as security measures.

Do not forget that an additional mortgage of real estate is regulated by the rules that stipulate the procedure for concluding this type.

All real estate transactions undergo state registration, which may take additional time to complete.

Vehicle

The second most popular type of collateral is vehicles. This type of property is liquid and can be quickly sold in the event of non-payment of the debt by the borrower.

Peculiarities:

The client can borrow a large sum of money using the car as collateral. This type of property, acting as collateral, does not require additional registration when completing a transaction, therefore, it can be concluded within one hour.

Between individuals

When concluded between individuals, the following may serve as collateral:

1. Vehicle.
2. Real estate.
3. Personal items of some value.
4. Stocks and bonds.

The transfer of special valuable property (apartment, houses, vehicles, etc.) can act as an object only with the prior consent of the client’s relatives who have the same ownership rights to it.

Interest-free type

An interest-free loan can be provided if a provision is included in the contract for the client’s personal valuables to be pledged as collateral.

must contain the following conditions:

As in other cases, if it is impossible to repay the debt on time, the property serving as collateral for the transaction becomes the property of the creditor.

Surety

A common type of interim measures is a guarantee from third parties. If the borrower fails to fulfill his repayment obligations, the lender will first demand repayment of the debt from him.

And only if the original debtor does not repay the debt, the claims will be sent to the guarantor. One or more guarantors may be involved under one agreement, it all depends on the amount.

Design nuances

Obtaining a loan against collateral is one of the convenient ways of lending, since thanks to collateral, the client simplifies the application procedure and shows the bank the seriousness of his intentions to repay the debt.

Registration of this type takes place according to the traditional scheme used by almost all banking institutions. For the client, it is necessary to know the registration procedure itself and all the nuances relating to it.

What documents are needed

When concluding a secured transaction, you will need to collect a certain package of documents, which will differ depending on what the collateral will be.

To formalize a loan agreement between individuals, the following documents will be required:

• confirmation of ownership of the collateral on the part of the borrower;
• passports of the parties to the transaction.

If the collateral is a motor vehicle, you will need title documents for it (registration certificate, compulsory motor liability insurance policy, diagnostic card, appraisal report on the value of the car, etc.).

If the object of the loan is real estate, then the package of necessary documents will include:

If a property is transferred along with the land on which it is located, the following may additionally be required:

1. Confirmation of land ownership.
2. Certificate of state registration.
3. Extract from the cadastre.

When guaranteeing, the parties provide only their passports. When drawing up an agreement, it is important to pay attention to the mandatory indication in the terms and conditions of the details of the parties and their signatures.

If this data is missing, the contract will be considered not concluded. In addition, a sample agreement with collateral includes the loan amount, interest, payment schedule, a list of property serving as collateral, its location during the entire term of the agreement, etc.

The contract is always concluded in writing. As a rule, banks work according to a standard form of agreement developed within the institution.

Requirements put forward

Borrowers should be aware that a loan cannot be secured against any property or any other collateral. Each credit institution has its own specific requirements for the collateral. If it does not answer them, the applicant may be refused.

The main requirements include:

Deadlines and amounts

The period of interim measures is equal to the period for which the borrower assumes loan obligations. As soon as they are fully executed, all encumbrances on the property will be removed.

To secure a loan with collateral, a specialist from a credit institution must calculate the amount of obligations of the future debtor, according to the following scheme - the accrued interest for the period of use of the funds is added to the loan amount (based on the repayment schedule), resulting in a loan obligation.

Next, the loan collateral is assessed. It must fully cover the amount of loan obligations assumed. When securing particularly valuable property, contracts are registered with the competent authorities and certified by a notary.

For a more precise understanding of the calculation procedure, you should pay attention to the following two examples:

Example 1

The borrower took out a loan to replenish the company's working capital. The amount was 5 million rubles, at a rate of 11% per annum. Duration - 5 years. As an interim measure, a three-room apartment was provided, the estimated cost of which is 16 million rubles. When calculating the collateral value of real estate, the credit institution applies a liquidity ratio, the amount of which ranges from 40 to 70% of the total value of the property. In the situation under consideration, the coefficient will be 50%. Thus, the apartment will be valued at 8 million rubles. Now you should calculate the amount of liabilities - 5 million rubles * 11% * 5 years = 7,750,000 rubles. The provided obligation will fully cover the funds taken by the borrower

Example 2

An individual takes out a mortgage loan to purchase an apartment, the cost of which is 14 million rubles. The loan rate is 10% per annum for a period of 10 years. In case of mortgage lending, the acquired property will act as a security measure. The liquidity ratio will also be 50%. Based on the original cost of the apartment, the estimated cost, after applying the coefficient, will be 7 million rubles. The amount of liabilities to the bank will be 28 million rubles (14 million rubles*10%*10 years). This creates a difference of 21 million rubles. This difference will require additional collateral. When mortgage lending, one of the conditions is to contribute your own funds to the purchased property (down payment). The amount of such contribution varies from 30 to 70%

Thus, the exact amount of security depends on many circumstances and is calculated individually in each case.

Advantages and disadvantages

The benefits of collateral include:

The disadvantages of collateral include:

When pledging property, the borrower should pay attention to the possibility of using it during the period of imposition of the encumbrance, otherwise, he may not find himself in the most advantageous situation.

It should not be overlooked that there are a large number of scammers operating in the credit market. By convincing a borrower who may need funds very urgently, the lender puts him in unfavorable conditions and receives his collateral at a low price.

When concluding any agreements regarding loan security, you should carefully read the terms of the loan, especially regarding the procedure for providing collateral.

When applying for a secured loan, you should correctly calculate your strength in terms of repaying the debt, since at the slightest violation of the conditions, the borrower may lose his property.

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In accordance with Art. 329 of the Civil Code of the Russian Federation (hereinafter referred to as the Civil Code of the Russian Federation), the fulfillment of obligations can be ensured by a penalty, a pledge, retention of the debtor’s property, a surety, a bank guarantee, a deposit and other methods provided for by law or contract. A penalty (fine, penalty) is, as a rule, present in all loan agreements, but is, in essence, a certain measure of the debtor’s liability for failure to fulfill obligations to the creditor. A penalty cannot be considered an effective way to ensure the fulfillment of obligations. Non-repayment of a loan by a borrower, as a rule, is associated with a lack of funds from the latter, which does not allow collecting a penalty from him, among other things. Retention and deposit are not used to ensure the fulfillment of loan obligations, since they are incompatible with the nature of loan obligations. Effective ways to ensure the fulfillment of borrowers' obligations under loan agreements, which are most often used by credit institutions, are collateral, surety and bank guarantee. This article is devoted to consideration of the features of collateral.

When deciding whether to provide a loan to a particular borrower, the authorized body (official) of the credit institution accepts credit risks either on the financial condition of the borrower or on certain security for the fulfillment of obligations (pledge, surety, bank guarantee). Moreover, you should always remember the principle contained in paragraph 3 of Art. 329 of the Civil Code of the Russian Federation: the invalidity of the main obligation entails the invalidity of the obligation securing it, unless otherwise established by law (for example, in relation to a bank guarantee). Therefore, when accepting credit risks as collateral, you must be sure that the main obligation - the loan agreement - is a valid transaction that complies with the law.

To do this, when deciding whether to provide a loan to any legal entity, it is necessary to make sure that such a legal entity is registered in the Unified State Register of Legal Entities, analyze its constituent documents for legal capacity and the structure of governing bodies to determine the body authorized to make a decision on receiving a loan and sign the loan contract In this case, it is mandatory to check whether the term of office of the specified body has expired and whether it was properly elected (appointed), for which the borrower is asked for copies of the protocols (decisions) on the election (appointment) of this body. In cases provided for by current legislation or the constituent documents of a legal entity, the authorized body must make a decision on the borrower receiving a loan, a duly certified copy of which is presented to the lender. The specified decision must contain all the conditions of the loan received that are essential for this transaction (amount, term, interest rate, type of collateral, intended use of the loan and other conditions recognized as essential parties to the loan agreement). The same legal examination must be carried out in relation to pledgors and guarantors. In this case, it is necessary to take into account the legal capacity of various types of legal entities.

For example, Federal Law No. 181-FZ of November 14, 2002 “On State and Municipal Unitary Enterprises” (hereinafter referred to as Law No. 181-FZ) provides that transactions of unitary enterprises in which there is an interest are major transactions (Article 22 , 23), as well as transactions for the provision of guarantees and the pledge of real estate (Article 18) must also be carried out by unitary enterprises with the consent of the owner of the property of the unitary enterprise. This must be remembered when concluding surety agreements and collateral agreements with unitary enterprises as security for the fulfillment of borrowers’ obligations. In addition, one should take into account the special legal capacity of a unitary enterprise (Article 3 of Law No. 181-FZ) - the ability to have civil rights corresponding to the subject and goals of its activities provided for in the charter of this unitary enterprise, as well as the fact that unitary enterprises can be created in cases specifically provided for in Art. 8 of Law No. 181-FZ.

In connection with the foregoing, we can conclude that the opportunity to act as a guarantor and pledgor as security for the fulfillment of obligations of a third party should be provided for in the charter of a unitary enterprise. An interesting norm is contained in paragraph 3 of Art. 18 of Law N 181-FZ, which provides that a state or municipal enterprise disposes of movable and immovable property only to the extent that does not deprive it of the opportunity to carry out activities, the goals, subject and types of which are determined by the charter of such an enterprise. Transactions made by a state or unitary enterprise in violation of this requirement are void.

Let's look at an example. A unitary enterprise engaged in the air transportation of passengers and having three passenger aircraft under its economic control, upon receiving a loan from a bank, pledges these aircraft as collateral. If this enterprise fails to fulfill its obligations to repay the loan, the aircraft may be foreclosed on, and they will be sold in the manner prescribed by current legislation. Thus, when concluding such transactions with a unitary enterprise, it is necessary to assess to what extent the intended collateral is involved in the production process and whether its alienation will lead to the impossibility of the unitary enterprise carrying out its statutory activities. Despite the fact that the pledge itself is not a transaction for the alienation of property, the possible sale of the pledge may be a void transaction, and accordingly such a pledge cannot be regarded as proper security.

It should be remembered that the invalidity of a loan agreement entails the invalidity of the obligation securing it, unless otherwise established by law (clause 3 of Article 329 of the Civil Code of the Russian Federation). Thus, if a loan agreement is declared invalid, including on the grounds discussed above, the collateral (guarantee, collateral, except for a bank guarantee) will be lost.

Pledge as a way to ensure the fulfillment of obligations

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

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

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

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

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

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

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

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

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

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

Land plots in state or municipal ownership;

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

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

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

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

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

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

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

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

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

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

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

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

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

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

In addition, this article defines the essential terms of the pledge agreement: the subject of the pledge and its valuation; the amount and period of fulfillment of the obligation secured by the pledge; an indication of which party has the pledged property. The pledge agreement will be considered concluded if an agreement is reached between the parties in the form required in appropriate cases on all the essential terms of the agreement (Article 432 of the Civil Code of the Russian Federation). If at least one of the essential conditions of the pledge agreement is absent, it is not concluded.

Let us consider the essential terms of the pledge agreement in more detail.

Subject of the contract and its assessment

In addition to the name of the property being pledged, the contract must indicate the individualizing features of this property that distinguish it from other similar property (model, grade, country of origin, year of manufacture, compliance with GOST, inventory number, serial number, other quantitative and qualitative indicators) . As provided in paragraph 2 of the Review of the practice of considering disputes related to the application by arbitration courts of the norms of the Civil Code of the Russian Federation on pledge (Information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated January 15, 1998 N 26), when determining the subject of the pledge in the contract, not only must it be named type of property, but the individual characteristics of the subject of pledge must also be indicated, allowing it to be isolated from homogeneous things. Accordingly, if there is no information in the pledge agreement that individually defines the pledged property, the pledge agreement cannot be considered concluded (see, for example, Resolution of the Federal Arbitration Court of the West Siberian District dated December 21, 2004 N F04-8852/2004(7083-A03- 36), Resolution of the Federal Arbitration Court of the Moscow District dated October 7, 2004 N KG-A40/9232-04). The exception is goods in circulation, the features of collateral for which will be discussed below.

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

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

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

Secured obligation

The pledge agreement must indicate the essence, size and period of fulfillment of the obligation secured by the pledge. In relation to a loan agreement, in addition to the loan amount, it is necessary to fix the amount of interest for using the loan, the amount of the penalty for late fulfillment of the obligation to repay the loan (payment of interest), as well as the terms for repaying the loan (schedule for repaying the loan in installments) and paying interest. To identify the main obligation, you should also indicate in the collateral agreement the details of the loan agreement secured by this collateral agreement (number and date of conclusion).

The pledge agreement must reflect other terms of the loan agreement that relate to the essence, size and timing of its execution. For example, a loan agreement may provide for the right of the lender to demand early repayment of the loan upon the occurrence of certain conditions related to the borrower’s violation of its obligations under the agreement, a change in its financial condition, etc. (in accordance with clause 3 of Article 450 of the Civil Code of the Russian Federation). In this case, we are talking about changing the loan repayment period, which must be described in the collateral agreement.

According to Art. 337 of the Civil Code of the Russian Federation, unless otherwise provided by the contract, the pledge secures the claim in the amount that it has at the time of satisfaction, in particular interest, penalties, compensation for losses caused by delay in performance, as well as reimbursement of the necessary expenses of the pledgee for the maintenance of the pledged item and expenses for collection. In a pledge agreement, the parties can limit the scope of obligations that are secured by this pledge, for example, only the amount of the principal debt or only the amount of interest.

In the event of a change in the obligation secured by the pledge, the pledge agreement, which specifies the essence, size and deadline for fulfillment of the main obligation, is also subject to change.

When considering the issue of describing the main obligation in the pledge agreement, one should turn to arbitration practice.

The Plenum of the Supreme Court of the Russian Federation and the Supreme Arbitration Court of the Russian Federation in Resolution No. 6/8 dated 01.07.1996 (clause 43) provides that in cases where the mortgagor is the debtor in the main obligation, conditions on the essence, amount and timing of fulfillment of the obligation secured by the pledge , should be recognized as agreed if the pledge agreement contains a reference to the agreement governing the main obligation and containing the relevant conditions.

Thus, arbitration practice has developed different approaches to the problem of indicating in a pledge agreement information about the obligation secured by the pledge: for a pledge agreement concluded by the borrower-mortgagor, it is sufficient to indicate the name of the loan agreement and its details, and in an agreement concluded by the mortgagor - a third party, it is necessary to indicate in addition, all the essential terms of the loan agreement.

In addition to the essential conditions, without the agreement of which the parties to the agreement will be considered not concluded, the parties may include other conditions in the pledge agreement: indication of the moment of emergence of the right of pledge (clause 1 of Article 341 of the Civil Code of the Russian Federation), prohibition by the agreement of a subsequent pledge (clause 2 of Article 342 Civil Code of the Russian Federation), distribution of responsibilities for the maintenance and safety of the pledged property (clause 1 of Article 343), the procedure for monitoring by the parties of the subject of pledge (clause 2 of Article 343 of the Civil Code of the Russian Federation), determination of the procedure and conditions for the use and disposal of pledged property (Article 346 of the Civil Code of the Russian Federation). An essential condition of the pledge agreement in accordance with paragraph 1 of Art. 339 of the Civil Code of the Russian Federation is also an indication of which party has this property.

Which party to the contract has the pledged property?

Article 338 of the Civil Code of the Russian Federation provides for two types of pledge depending on the location of the subject of the pledge with one of the parties: a pledge without transfer and a pledge with the transfer of the pledged property to the pledgee (mortgage). A pledge without transfer to the pledgee can, in turn, be of three types: ordinary pledge; a pledge in which the pledged item is left with the pledgor under lock and key and the seal of the pledgee; a pledge in which the pledged item is left with the pledgor with the imposition of signs indicating the pledge (hard pledge). In banking practice, ordinary collateral is most often used - with the collateral remaining with the pledgor. This type of pledge is less effective, since it allows unscrupulous pledgors, if the pledgee does not want to foreclose on the pledged item, to carry out any actions related to concealing the pledged item. The solution to this problem can only be periodic monitoring by the pledgee of the pledged item. A mortgage, which is a more reliable type of collateral, imposes on the mortgagee the obligation to take measures necessary to ensure the safety of the pledged property, including protecting it from attacks and claims from third parties, which makes the mortgage unattractive for the mortgagee. One of the most reliable and common types of collateral in banking practice in recent years is a mortgage. According to paragraph 1 of Art. 338 of the Civil Code of the Russian Federation, property on which a mortgage is established is not transferred to the mortgagee.

Pledge of securities is used quite widely in banking practice to ensure the fulfillment of loan obligations. In accordance with paragraph 4 of Art. 338 of the Civil Code of the Russian Federation, when a property right is pledged, certified by a security, it is transferred to the pledgee or to the deposit of a notary, unless otherwise provided by the agreement. This provision speaks only about the pledge of rights certified by a security. At the same time, considering that in accordance with Art. 128 of the Civil Code of the Russian Federation, securities are classified as property, and Art. 336 of the Civil Code of the Russian Federation provides that the subject of a pledge can be any property and property rights; it is lawful to talk about the pledge of securities as property and the pledge of rights certified by a security. The difference in the definition of the subject of pledge is associated with the form of issue of securities: in documentary form as a document or in non-documentary form by recording rights to securities in a special register (Article 142 of the Civil Code of the Russian Federation).

The review of the practice of consideration by arbitration courts of disputes related to the application of rules on pledge agreements and other security transactions with securities is devoted to the pledge of securities (Information Letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated January 21, 2002 N 67) (hereinafter referred to as the Review). According to clause 13 of the Review, the right of pledge on uncertificated securities arises from the moment it is recorded in the prescribed manner in accordance with Art. 149 of the Civil Code of the Russian Federation, which provides that transactions with uncertificated securities can be carried out only when contacting a person who officially records rights. Transfer, granting and limitation of rights (including pledge) must

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 lenders, 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 received against it.

A mortgage is a pledge of real estate to secure obligations to the lender. With mortgage lending, the borrower receives a loan for the purchase of real estate or 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. Therefore, 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 during the organization of 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 the achievement of 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. Fundamental is the achievement of the main goal of management - the launch, formation and maintenance of 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 gives 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 is carried out on the collateral 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 borrower’s solvency and creditworthiness in accordance with the requirements and conditions of the loan; 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 implementing sound mortgage lending practices and in 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 that is 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.

Credit collateral is a very common phenomenon. In the case of , the collateral for the loan is the housing being purchased, and if taken, it is the collateral.

Some lenders make loan collateral a requirement. This significantly reduces the risk of non-payment of loan funds and interest. For some, the conditions are even stricter - collateral is mandatory.

Types of loan collateral

The most common form of loan collateral. It involves, in exchange for funds received from the lender, the transfer of property, property rights or valuables in an amount higher than the amount of the loan and interest. Pledge can be expressed by the transfer of rights to real estate (mortgage), transport, securities, jewelry, goods, etc. The mortgagor can be either the borrower or another person. In case of non-payment of the loan, the mortgagee has the right to sell the property at public auction. All this happens after sending the borrower a notice of the commencement of forced collection. There is a distinction between collateral held by the lender (mortgage) for the duration of the loan and that held by the borrower (if the documents are prepared accordingly). The collateral often needs to be insured, and life and health insurance for the borrower is also often required. The second is almost always optional, but can reduce interest on the loan by 0.5-3%.

Another type of loan collateral is credit surety. Its essence is quite simple - an individual or legal entity agrees in writing to repay loan payments if the borrower himself does not do so. This person (or persons) can be either a stranger or a close relative of the borrower. The guarantor is often called a co-borrower who does not claim part of the loan funds received. The guarantor can guarantee the timely repayment of both the entire loan amount and part of it. When repaying a debt obligation to a creditor, the guarantor has the right to demand the funds paid from the borrower; or forgive the debt. The borrower is obliged to promptly notify the guarantor about the status of the loan in order to prevent both payments and reciprocal payments. If neither the borrower nor the guarantor repays the loan on time, the lender can take legal action against both the borrower and his guarantor.

In addition, both the main and additional security for the debt can be guarantee– or another organization, including a credit institution. The guarantor can vouch, guarantee payment of part of the debt, or the entire amount. If the loan was paid not by the borrower, but by the guarantor, the latter has the right to demand from the debtor the amount paid to the creditor, as well as expenses incurred by repaying the loan.

Collateral is property (or rights to property) or valuables provided by the borrower (or other person) to the lender to secure a loan, guaranteeing the return by the borrower of funds received as a loan, as well as accrued funds. The collateral can be real estate, cars/motos, household appliances, securities, bank deposits without the possibility of early withdrawal, precious materials, equipment, etc. The mortgagee can be a bank, a credit organization or private creditors. A secured loan is almost always not a loan and can be spent on any needs of the borrower.

A separate agreement is usually created for the pledge. It must indicate the detailed characteristics of the collateral and the estimated value. The appraisal is usually made at the expense of the mortgagor, regardless of whether the loan is issued or not. An appraiser often needs to be selected from a list offered by the lender.

If property is being mortgaged, the permission of the borrower's spouse is required.

Collateral, as a rule, increases the maximum loan amount (within 50-80% of the value of the property), improves the terms of the loan - increases the loan term, reduces the interest rate. It provides an almost one hundred percent chance for the mortgagee to return his funds. There are practically no downsides to this security for the lender, except perhaps the storage of the collateral (and even then, the borrower himself often pays for this). For the mortgagor, on the contrary, there are quite a lot of disadvantages. If the loan is not repaid within the established time frame, the pledged property almost always goes to the creditor (in rare cases, in court it is possible to obtain the pledged object by paying the entire, or almost all, amount of the loan; or to receive part of the money after selling the property at auction). Another disadvantage may be that the object or item serving as security has limited capabilities. The apartment cannot be changed, it is impossible to cross the border by car, etc.

If the property is already pledged, it is impossible to secure it again.

Often a deposit is required, especially when:

• The permitted portion of the income does not cover the required monthly loan payments;
• The total loan amount is very high, and the credit institution cannot issue such a loan to an individual;
• Unsuitable conditions for the borrower, including risks of non-repayment;
• Bad credit history;
• Other conditions of the lender.

Often the collateral is not physically held by the lender, but only legally. Apartment, car, plot, etc. remains with the borrower, and the rights to the property are formalized as collateral. In this case, the debtor assumes the obligation to maintain the collateral and notify the creditor in the event of loss or damage to the property.

The lender may require the collateral to be insured for a period equal to or greater than the term of the loan agreement. The amount of insurance must not be lower than the estimated value of the collateral property. Payment of funds, in case of loss or damage, is sent to the creditor. In some cases, the lender also includes life and health insurance for the borrower as part of the loan terms. If the collateral is not insured, and is damaged or lost, the lender and borrower agree on further actions. Another pledge can be made, the loan can be quickly repaid, etc. If a common language is not found, the creditor files the case in court. They have the right to either leave the loan agreement the same or oblige the borrower to repay the remaining part of the loan within a specified period of time, from a month to several years. Otherwise, the court will seize other property and order it to be sold at public auction. The funds received are sent to the lender to pay for court services, and the remainder is returned to the borrower. Both the lender and the court will be affected by the conditions under which the previous collateral became unusable.

A secured loan is a mutually beneficial option for credit relationships. The lender receives a guarantee of payment of funds, and the mortgagor receives good lending conditions.

Every year, the bail institution receives amendments that reduce the chances of the pledger challenging the bail in court. The lending system is constantly being improved, the so-called lending scales are regulated. On one side of the scale is the lender making a profit, on the other is the borrower having funds at his disposal.

Responsibility of a third party for the borrower's fulfillment of loan obligations to the lender. To ensure proper execution of documents, an additional document must be attached to the loan agreement - a surety agreement.

In a surety agreement, on one side the guarantor acts directly. On the other hand, most often it is a lender, sometimes a borrower or another person (depending on the legislation of the country, the lender, preferences, etc.). A surety agreement differs from a guarantor in that it is not part of the main loan agreement and, although convincing, is not guaranteed by a serious organization to return the funds. Depending on the loan amount, the reputation of the borrower and third parties, a bank or other credit institution has the right to require several guarantors.

The guarantor is called by the borrower to additionally ensure the repayment of the loan; he can guarantee the return of both part of the loan and the full amount, as well as interest for using the loan. In addition, the guarantor can take the initiative and, after the bank’s permission, independently repay the entire loan amount. An enterprise that has funds to operate, but does not have “free” finances, cannot act as a guarantor.

The guarantor's liability may be:

• Solidary. The credit institution has the right to choose which invoice and to whom to send it for payment, i.e. both the borrower and the one who guaranteed the payment are equally obliged. As a result, the guarantor may pay more (for example, if income is higher) than the borrower. Often, the bank sends payment of the full amount to both the debtor and a third party; and after the account is paid off by one, the other cannot deposit funds.
• Subsidiary. The credit institution sends an invoice to the debtor, and if he does not pay (or partially pays), presents the invoice to the guarantor. In other words, if the debtor pays regularly, the guarantor is not bothered.

The same thing happens when a loan is not repaid and the situation is resolved in court. In the first case, both parties are held liable equally. In the second - the debtor, and if it is not possible to collect the full amount from him, then the guarantor. The court can confiscate both the property of the debtor and the guarantor.

If the borrower refused to pay and the guarantor paid for the loan, the second has the right to demand the money paid, as well as additional expenses caused by this payment.

The guarantee ends after:

• Payment by the borrower of the entire loan amount, as well as interest.
• Failure of the creditor to properly accept the guarantor's payment for the invoice. Just as the debtor is obligated to pay, so is the lender obligated to receive the money in the manner specified in the loan agreement.
• According to the circumstances of the guarantor, after which payment of the loan becomes impossible. For example, bankruptcy, dismissal from work, illness, etc. This possibility is stipulated in the guarantee agreement.
• If the loan agreement is changed or. This may include a change of borrower on the current loan, changes (increase in amount, interest...). In this case, the guarantor must confirm the new guarantee in writing and may refuse to do so.
• Expiration of the guarantee period specified in the contract. Or after two years after the end of the loan repayment period, if the creditor has not filed a corresponding claim in court.

If the guarantee agreement is drawn up incorrectly, it has no force (is invalid). The death of the debtor does not relieve the guarantor of the obligation to pay the loan.

When becoming a guarantor, a person must know the borrower well, and even better, be related; Read the agreement carefully and agree to the amount, interest and loan term. The borrower may evade repayment of the loan. For example, to leave the country or by court decision. Circumstances may prevent the borrower from paying, and the lender may refuse to restructure the debt. And all responsibility will fall on the shoulders of the guarantor. The guarantor is regarded by law as a co-borrower, i.e. party interested in obtaining a loan by the debtor. A guarantor who refuses to pay the loan spoils his credit history, just like the debtor. When repaying even a small part of the amount, the guarantor is obliged to keep all documents (payment receipts, certificates, etc.). By acting as a guarantor, a person undertakes obligations that practically exclude him from receiving a loan himself.

There is no need to vouch for the loan of a new work colleague, an old acquaintance or a very distant relative. First you need to find out more about him, soberly assess his solvency, citizenship, registration, marital status, etc.

An individual or legal entity (bank, credit or insurance organization) that guarantees payment if the borrower fails to do so. From a lending point of view, a guarantor is credit collateral that allows the lender to be more confident in repaying the loan and stipulates a high probability of issuing a loan, an increase in the maximum loan amount, a low interest rate, etc. Like other credit collateral, guarantees are required if the lender not confident in the borrower’s fulfillment of his obligations (damaged credit history, large debts from other creditors...)

What is the difference between a guarantor and a guarantor?

In the case of a guarantor, an appropriate guarantee agreement is drawn up, which has many details and subtleties. According to them, the guarantor may not pay the loan obligations assigned to him. The guarantor is considered as a co-borrower, an interested person standing on the same level as the debtor. The guarantor is usually an individual. And people, according to statistics, are more likely to encounter problems when paying off a loan than serious organizations, banks or reputable persons with the appropriate license.

The guarantor provides a written undertaking to pay a specific amount if demanded by the creditor. Often, an organization issues guarantees by taking collateral from the borrower and acts as an intermediary between the obligatory lending parties.

In other words, the concepts of guarantor and guarantor are similar in that in both the first and second cases they vouch for the borrower by providing security for the loan, but they differ in that the guarantees themselves are much more reliable than the surety.

A guarantor is a very common type of security for transactions. With it, an authoritative person or organization takes responsibility for one of the parties to the transaction.

Bank guarantees are a written (often on special forms) obligation of a bank (or other credit institution) to pay a specific amount in favor of the lender, if the borrower does not do so in a timely manner. At times, bank guarantees contain many clauses to clarify the circumstances under which payment will occur. The creditor must provide all documents to the guarantor to familiarize himself with the situation and subsequent payment of the debt.

Bank guarantees can be revocable or non-revocable.

Warranties are void when:

• The guarantor issued the amount specified in the document;
• The warranty period has expired;
• If the creditor has waived the right to receive funds from the guarantor (by returning bank guarantees to the organization, or by written refusal of the services of the guarantee organization).

There are several types:

• Guarantee of payment of a specific amount (or);
• Guarantee that the contract will be properly executed;
• Mandatory advance repayment;
• guarantee;
• Securing a credit line;
• Customs.

Often, certain funds act as guarantors, which guarantee the return or return for a certain fee. Of course, even when receiving money for their guarantee, fund employees must be confident that the loan will be repaid, even if their requirements for the borrower are not as stringent as for the lender.

These guarantees are usually regarded by the lender as, which, of course, has a positive effect on the transaction.

Unfortunately, not every enterprise has sufficient funds to finance its financial and economic activities. After all, money, as the company’s most liquid asset, is constantly being spent. And as practice shows, even organizations with a high level of profitability do not always have enough “cache”. What can a company do when, for example, there is no money to pay wages to its employees or finance production? Naturally, apply for a loan from a bank or take a loan from another legal entity.

At the same time, for the institution issuing the loan, it is very important to guarantee solvency - the ability of the borrower to repay its obligations in a timely manner and in full. And just such a guarantee is a pledge of property, which, along with a surety, is the most common measure to secure obligations to pay amounts issued under a loan agreement.

A loan secured by property is the least risky for the bank due to the fact that if the debtor fails to fulfill its obligations, the former has the right to receive “satisfaction from the value of the pledged property” (clause 1 of Article 334 of the Civil Code of the Russian Federation). For the borrower, the loan in question differs from an unsecured loan by more favorable conditions, such as: a lower interest rate, a larger amount of the loan issued, and longer terms for using borrowed resources.

Well, all these factors lead to the great popularity of obtaining a loan secured by property? And it is likely that the management of your company will decide to use it. In this article we will consider the legal regulation of relations in the field of providing collateral, accounting and tax accounting of these transactions.

When transferring property as collateral, the agreement must be drawn up in writing. This is required by both the Civil Code (clause 2 of Article 339 of the Civil Code of the Russian Federation) and the Federal Law of July 16, 1998 No. 102-FZ “On Mortgage (Pledge of Real Estate),” which regulates relations when pledging real estate.

In certain cases, it is necessary that the pledge agreement be notarized and/or registered. Also, the Civil Code of the Russian Federation requires that the agreement in question reflect the subject of the pledge and its valuation, the essence, size and deadline for fulfilling the obligation secured by the pledge, and an indication of which party has the pledged property (Article 339 of the Civil Code of the Russian Federation).

Please note that failure to comply with the above requirements for the execution and content of the pledge agreement leads to the fact that such a contract will be recognized as unconcluded and invalid (clause 43 of Resolution No. 6/8 of the Plenums of the Supreme Court of the Russian Federation and the Supreme Arbitration Court of the Russian Federation dated July 1, 1996, p. 4, Article 339 of the Civil Code of the Russian Federation).

And since, as practice shows, tax authorities quite often “remove” expenses related to contracts recognized as unconcluded and invalid, not only a lawyer, but also an accountant should monitor the correct execution of the pledge agreement, since this will also be the case interests of the latter.

Let's continue further. The pledgeholder in the relationship is the creditor of the obligation secured by the pledge. The mortgagor - the person transferring property to secure the loan - can be either the borrower himself under the specified loan agreement, or a third party. This possibility is allowed by Art. 335 Civil Code of the Russian Federation. It turns out that the collateral agreement can be either bilateral (the lender, who is also the mortgagee, and the borrower, who is also the mortgagor), or tripartite (the lender is the mortgagee, the borrower and a third party is the mortgagor).

The mechanism of tripartite relationships for the provision of collateral is quite common. For example, an organization - a borrower, not having on its own balance sheet sufficiently valuable property for the bank to recognize it as proper collateral for obtaining a loan, asks its subsidiary or dependent company, respectively, which owns such property, to act as a mortgagor in the relationship between the parent company and the bank.

And here the next point arises - it turns out that the mortgagor, a third party, provides a certain service of transferring his property as collateral. If an organization pledges its own property free of charge to secure the obligations of a third party, this operation should be considered as a service provided free of charge. At the same time, the recipient of this service generates income that is taken into account for profit tax purposes on the basis of clause 8 of Art. 250 of the Tax Code of the Russian Federation (Letter of the Ministry of Finance of Russia dated October 3, 2006 No. 03-03-04/1/679).

Of course, you can disagree with financiers, and even determine the market value of the service in accordance with Art. 40 of the Tax Code of the Russian Federation, as required by the above norm of Art. 250 of the Tax Code of the Russian Federation, to include it in taxable income is quite problematic. In order to avoid possible claims from inspectors, it is advisable for the person receiving the loan to enter into a reimbursable agreement with the company that provides its property as collateral in the interests of the former. At the same time, the payment to the mortgagor, according to Moscow tax authorities, can be taken into account in calculations when calculating income tax. So, in accordance with the Letter of the Federal Tax Service for Moscow dated June 26, 2006 No. 20-12/56673@, the costs of paying remuneration to the mortgagor are for the borrower economically justified expenses incurred in connection with obtaining a loan.

In this regard, these expenses are taken into account for tax purposes of the borrower's profit in the same way as interest on a loan. At the same time, this letter obliges the taxpayer to “stretch out” the expense in question, i.e., on the basis of the norm of paragraph 1 of Art. 272 of the Tax Code of the Russian Federation to recognize it evenly throughout the lending period provided for by the loan agreement.

So, let's move on to further consideration of civil law rules governing relations arising when property is pledged as security for a debt.

Any property can be pledged, with some exceptions reflected in Art. 336 of the Civil Code of the Russian Federation, such as, for example, property withdrawn from circulation. In this case, the property transferred as security must be owned by the pledgor or under the right of economic management. It turns out that both state unitary enterprises and municipal unitary enterprises - enterprises that may have the specified right of economic management - also have the right to pledge property, although in certain cases

(Clause 2 of Article 295 of the Civil Code of the Russian Federation) only with the consent of the owner - the state.

We established above that a pledge agreement necessarily requires determining which of the parties to the transaction has the property that is the subject of the pledge. This means that the legislation allows that the collateral can be physically located either with the pledgor or with the pledgee? Yes, indeed, this possibility is defined in Art. 338 Civil Code of the Russian Federation. True, there is an exception - property on which a mortgage is established, as well as pledged goods in circulation, are not transferred to the mortgagee. However, in any case, regardless of who should have the pledged property under the agreement, the right of ownership and economic management remains with the pledgor. Title can only pass to the mortgagee if the borrower fails to fulfill his obligation to the lender.

Quite often, accounting employees have a question: is it possible to use the pledged property and use it to generate income? And this is how you agree. The Civil Code allows the pledgor to use the pledged item in accordance with its purpose, including extracting fruits and income from it, unless otherwise provided by the agreement. In addition, the pledgor, by agreement of the parties, has the right to alienate the pledged item, transfer it for rent or for free use. The specified actions in relation to the pledged property require the consent of the pledgee.

For example, if your company transfers a mortgaged property for rent, do not forget to take care of the consent of the mortgagee. Otherwise, the transaction may be declared invalid. And this, as mentioned above, can lead to negative tax consequences, namely, not accepting expenses for the specified transaction.

The agreement may provide that the pledgee may also use the collateral transferred to him. In addition, the civil legislation of the Russian Federation allows for such an agreement between the parties in a pledge agreement, in which the pledgee may be obligated to extract fruits and income from the pledged item in order to repay the main obligation or in the interests of the pledgor. Please note that under this procedure, the mortgagee must provide your company as the mortgagor with a regular report on the use of the property received by him. This is directly stated in paragraph 3 of Art. 346 of the Civil Code of the Russian Federation.

So, we have examined the main points concerning the civil legal nature of the pledge agreement. And already on the basis of these provisions, we can proceed to the analysis of the procedure for accounting and tax accounting of the transfer of collateral property. After all, without understanding exactly what rights belong to a particular person in a transaction, it is impossible to keep records.

Let's start with VAT. Is it necessary for the mortgagor to charge the tax in question when transferring property as collateral? No. Indeed, in accordance with paragraph 1 of Art. 146 of the Tax Code of the Russian Federation, the object of taxation of value added tax is the sale of goods (work, services) on the territory of Russia, including the sale of collateral. And implementation in accordance with Art. 39 of the Tax Code of the Russian Federation is the transfer of ownership. However, as we have already discussed above, no transfer of ownership occurs when the property is provided by the mortgagor to the mortgagee. Consequently, there is no object of VAT taxation.

In accounting, the cost of the property pledged is not recognized as an expense of the organization. After all, the expense in accordance with paragraph 2 of PBU 10/99 “Expenses of the organization” is a decrease in the economic benefits of the company. And what kind of reduction can we talk about if the ownership of the pledged item remains with the pledgor and is not transferred to anyone (of course, in the case of repayment of the obligation, in whose security the pledge in question was issued).

Based on the same condition regarding the non-transfer of ownership of the pledged item, the property must remain with the pledgor on the balance sheet. The only thing is that you need to create a separate sub-account for it.

For example, your company was given materials to the creditor to secure an obligation. In accounting in this case, you should make the following entry:

Debit 10 “Materials pledged” Credit 10 “Materials”.

Don't forget about off-balance sheet accounting. The chart of accounts provides for account 009 “Securities for obligations and payments issued,” which is intended to summarize information on the availability and movement of guarantees issued to secure the fulfillment of obligations and payments.

The pledgor organization must reflect the following entry in its accounting:

Debit 009 “Securities for obligations and payments issued” is the contractual value of the equipment pledged.

The collateral amounts recorded in account 009 are written off as the debt is repaid.

If a fixed asset is pledged, depreciation on it continues to accrue. Indeed, in accordance with the norms of PBU 6/01 “Accounting for fixed assets” in accounting, depreciation is suspended in the event that a fixed asset is transferred to conservation for a period of more than three months, as well as during the period of restoration of the object, the duration of which exceeds 12 months.

And the transfer of property as collateral does not apply to any of the above cases.

However, in a situation where the pledged item is physically transferred for use to the pledgee, according to a number of experts, depreciation charges should be taken into account as other expenses (Debit 91-2 “Other income and expenses” Credit 02 “Depreciation of fixed assets”). Their argument is as follows - the fixed assets transferred to the pledgee are not used by the pledger in the manufacture of products or the sale of goods (works, services), therefore, depreciation amounts cannot be attributed to expenses for ordinary activities.

At the same time, the enterprise transfers its fixed assets under the pledge agreement for use to the pledgee for a reason. Thanks to this condition of the agreement, as a rule, interest rates for the use of borrowed funds, for which the property is transferred, are significantly reduced. It turns out that the property is provided for use by the mortgagee in order to receive funds on the most favorable terms for the borrower-mortgagor. And if the borrowed money received is used to finance production activities, then there is a relationship between the transfer of the pledged property to the pledgee for use with the specified production activities of the company - the mortgagor-borrower. Therefore, depreciation of such fixed assets can be taken into account in the costs associated with production and sales.

In any case, it is advisable for the enterprise to independently determine which of the above approaches in order to account for depreciation charges. In this case, it is advisable to consolidate this procedure in the accounting policy for accounting purposes, preferably giving reasons for it.

As for income tax, in accordance with paragraph 32 of Art. 270 of the Tax Code of the Russian Federation, the cost of property given as collateral will not be included in expenses.

The question arises, what to do with depreciable property? The Tax Code of the Russian Federation also contains a list of cases in which depreciation should not be calculated in tax accounting. This list is slightly different from the similar one set out in PBU 6/01.

According to paragraph 3 of Art. 256 of the Tax Code of the Russian Federation, fixed assets are excluded from depreciable property for the purpose of calculating income tax:

transferred (received) under contracts for free use;

transferred by decision of the organization’s management to conservation for a period of more than three months;

which, by decision of the management of the organization, are undergoing reconstruction and modernization for a period of more than 12 months.

The collateral property clearly has nothing to do with conservation, reconstruction, or modernization. As for the transfer for free use, the transfer of property under a pledge agreement also does not apply to this. After all, the collateral is transferred in order to obtain any preferential lending conditions. This means there is no gratuitousness.

It turns out that formally the collateral property can be depreciated in tax accounting. True, debates again arise regarding the fixed asset physically transferred to the mortgagee.

There is an opinion that since the property is physically absent from the taxpayer-mortgagor, it cannot generate income for him, and, therefore, does not satisfy the criterion of depreciable property (clause 1 of Article 256 of the Tax Code of the Russian Federation), and therefore cannot be depreciated.

However, it is very difficult to agree that the property pledged does not generate income. After all, as already written above, by transferring fixed assets to the mortgagee, the borrower pays lower interest rates, and thereby saves.

An ambiguous, controversial situation arises. And it is likely that the tax authorities will accept the option in favor of the budget. Therefore, if your company decides to charge depreciation in tax accounting of fixed assets physically delivered for use to the pledgee, you will probably have to defend your position in court.

Valuation of property pledged as collateral

The size of the loan received by the borrower directly depends on the market value of the property pledged as collateral. And in order for the bank to be confident that the collateral property is worth the money provided to the borrower, it sets a condition - an assessment of the property by an independent appraiser. After all, the credit institution must understand that the pledged object, in the event of failure to fulfill the obligation by the borrower, can be sold for an amount in the amount of the loan provided.

In addition, assessment is also required by law. As noted above in the article, the valuation of the collateral property must be reflected in the collateral agreement.

Since the costs of assessing the property pledged as collateral are associated with obtaining a loan, for the purpose of determining the procedure for their accounting, we should be guided by PBU 15/2008 “Accounting for expenses on loans and borrowings.”

In accordance with this document, assessment costs can be classified as additional costs associated with obtaining loans and borrowings. Moreover, such expenses on the basis of clauses 6 and 8 of the specified PBU can be taken into account either at a time, in the reporting period in which they were incurred, or can be included evenly as expenses during the term of the loan (credit agreement).

The accounting method you choose should be fixed in the accounting policy for accounting purposes.

The norms of PBU 15/2008 stipulate that loan costs, which, as we have already determined, include the services of an appraiser, should be classified as other expenses.

Therefore, depending on the chosen accounting option, the organization needs to reflect the following transactions:

Debit 91-2 “Other income and expenses” Credit 76 “Settlements with various debtors and creditors” (Credit 60 “Settlements with suppliers and contractors”)

or

Debit 97 “Deferred expenses” Credit 76 “Settlements with various debtors and creditors” (Credit 60 “Settlements with suppliers and contractors”),

Debit 91-2 “Other income and expenses” Credit 97 “Deferred expenses”.

In the case where a loan and, accordingly, services on it were received for the purpose of acquiring, constructing and (or) manufacturing an investment asset (an asset that will subsequently be taken into account as a fixed asset, intangible asset or other non-current asset), loan costs should be capitalized and the value of the specified non-current asset formed from them:

Debit 08 “Investments in non-current assets” Credit 76 “Settlements with various debtors and creditors” (Credit 60 “Settlements with suppliers and contractors”).

For tax accounting purposes, the costs of appraising an object transferred under a collateral agreement to secure a loan can be taken into account as expenses. This conclusion is confirmed by letters from the Ministry of Finance, the tax service, decisions of arbitration courts (Letters of the Ministry of Finance of the Russian Federation dated March 2, 2006 No. 03-03-04/4/42, dated June 1, 2009 No. 03-03-06/2/108, Federal Tax Service of Russia for the city Moscow dated December 20, 2004 No. 26-12/83208, Resolution of the Federal Antimonopoly Service of the North-Western District dated September 25, 2006 in case No. A56-27205/2005).

However, their analysis shows that regulatory authorities pay attention to the fact that expenses can be accepted for tax accounting if they are documented and economically justified (the norm of Article 252 of the Tax Code of the Russian Federation).

It is worth paying attention to the last condition. If an organization takes out a loan for any production purposes, then the expenses on it can be considered economically justified. If, say, borrowed funds are needed to pay for the cost of services of an organization that held a corporate event for your company, then the costs of such a loan do not fall into “tax” expenses.

Another interesting issue that should be considered is the moment of accounting for the costs in question. In the above-mentioned Letter from the Moscow Federal Tax Service it was indicated that the date of the expenditure on the basis of sub. 3 paragraph 7 art. 272 of the Tax Code of the Russian Federation will recognize the date of signing the acceptance certificate for the services provided for property valuation.

On the need to “stretch” costs in accordance with Art. 272 of the Tax Code of the Russian Federation, as well as in other letters to regulatory authorities regarding the procedure for accounting for expenses for the assessment of collateral, nothing is said. It is likely that the tax authorities, when auditing, may consider that the costs in question should be taken into account during the period of the loan. Moreover, with regard to other expenses associated with obtaining a loan, the Ministry of Finance stated that such expenses should be distributed. The only thing that can be advised in this situation is to contact the regulatory authority with a targeted question. As stated above, regulations in the field of accounting give an organization the right to choose an accounting methodology in terms of accounting for costs associated with obtaining a loan, then it would be advisable for a company to combine the method of accounting for costs in accounting with tax accounting, so as not to once again apply PBU 18.

And one moment. When accounting for the costs of assessing collateral, the accountant needs to know the purpose of obtaining borrowed funds. Is it related to the acquisition, construction, or creation of any asset? Indeed, in this case, valuation costs should form the value of this asset, and not be taken into account separately. The Ministry of Finance also adheres to this opinion (Letter dated August 27, 2007 No. 03-03-06/1/598): “According to paragraph 1 of Article 257 of the Code, for the purpose of taxing the profits of organizations in the initial cost of construction (or in the cost of reconstruction, technical re-equipment ) depreciable property takes into account the costs associated with obtaining and securing a loan (commissions, costs of evaluating and storing the collateral, etc.).”