Transfer of rights under the mortgage agreement. Why you need a mortgage for a mortgage: registration requirements
"Bail pledge -
it is a pledge of the right of pledge"<*>.
(D.I. Meyer)
<*>Clarification made by the author.B.D. Zavidov, Ph.D. in Law, Researcher at the Research Institute of the Prosecutor General's Office of the Russian Federation, Deputy Editor-in-Chief of the magazine "Russian Investigator".
Mortgage Basics
The practical significance of the mortgage lies in the fact that it not only simplifies, but also accelerates the turnover of real estate. This conclusion follows from Art. 13 of the Federal Law "On Mortgage (Pledge of Real Estate)"<*>(hereinafter referred to as the "Law"). In the same norm, the following basic provisions on the mortgage are formulated.
<*>Federal Law "On Mortgage (Pledge of Real Estate)" dated July 16, 1998 N 102-FZ (as amended and supplemented) // RG. 1998. July 22.First. The rights of a mortgagee under a mortgage-secured obligation and under a mortgage agreement may be certified by a mortgage, unless otherwise provided by the Mortgage Law (the "Law").
Second. A mortgage bond is a registered security certifying the following rights of its legal owner:
- the right to receive performance under a monetary obligation secured by a mortgage of the property specified in the mortgage agreement, without presenting other evidence of the existence of this obligation; including the right to pledge the property specified in the mortgage agreement.
So, we see that the mortgage is a registered security. This rule follows from the meaning of paragraph 2 of Art. 13 and Art. 48 of the Law "On Mortgage" and allows the transfer of rights under a mortgage by making an endorsement on it in favor of another person indicating the name of this person - an order endorsement (in the terminology of Part 2, Clause 3, Article 146 of the Civil Code). Here the Mortgage Law directly contradicts general provisions GK, according to which distinguish securities bearer, nominal and order, and Art. 146 of the Civil Code clearly establishes the procedure for transferring rights to securities of each type. Paragraph 3 of Art. 146 of the Civil Code allows the transfer of rights by endorsement only for an order security - for a registered security, rights can only be transferred by way of an assignment (clause 2 of article 146 of the Civil Code). Deviation from these norms of the Civil Code is unacceptable. The mortgage bond must be an order security, or rights under it as a registered security must be transferred in the manner established for the assignment of claims (cession)<*>.
<*>See: Pleshanova O. Mortgage - the new kind securities // Russian justice. 1998. N 5. S. 19 - 20.Despite the inconsistency of the specified wording of the mortgage, it is of undoubted value for accelerating the civil turnover of real estate.
The law expressly states that the obligated persons under the mortgage are:
- a debtor under a mortgage-secured obligation;
- pledger.
Meanwhile, the mortgage, as a general rule, is drawn up by the pledgor, and if he is a third party, also by the debtor under the obligation secured by the mortgage. The mortgage bond is issued to the original pledgee by the body exercising state registration mortgages, after the state registration of the mortgage (clause 5, article 13 of the "Law").
Within the meaning of par. 3 p. 5 art. 13 of the "Law" is allowed: transfer of mortgage rights; mortgage pledge.
And par. 3 p. 5 art. 13 of the "Law" corresponds with Art. 48 of the same "Law" "Transfer of rights by mortgage" and Art. 49 "Pledge of mortgage".
Features of the transfer of rights under a mortgage lie in the following key points.
First. The transfer of rights under a mortgage bond is carried out by making an endorsement on it in favor of another person (the owner of the mortgage bond) and transferring the mortgage bond to this person.
Second. The endorsement must accurately and completely indicate the name (title) of the person to whom the rights under the mortgage are transferred. Endorsements on a mortgage bond that do not contain such an indication (blank endowments) are considered void.
Third. The endorsement must be signed by the mortgagee indicated in the mortgage bond, and if this inscription is not the first, by the owner of the mortgage bond named in the previous endorsement.
Fourth. The transfer of rights under a mortgage to another person means the transfer thereby to the same person of rights under a mortgage-backed obligation.
Fifth. The legal owner of the mortgage bond owns all the rights certified by it, including the rights of the mortgagee and the rights of the creditor under the obligation secured by the mortgage, regardless of the rights of the original mortgagee and previous owners of the mortgage bond.
All of the above about the mortgage, or rather about the transfer of rights under the mortgage to another owner, once again confirms the idea of the great Russian civilist D.I. Meyer that a "pledge - pledge" is possible in a pledge, and, perhaps, this is the main purpose of the mortgage.
The most complex legal structure, perhaps in almost the entire institution of the mortgage, are the rules of paragraph 3 of Art. 48 on the concept of "lawful owner" of a mortgage bond upon transfer, including the subsequent transfer of rights on it. So, for example, the legislator points out that "the owner of a mortgage bond is considered legal if his rights to the mortgage bond are based on the last endorsement and on a continuous series of previous endorsements on it. He is not considered rightful owner mortgage bond, if it is proved that the mortgage bond has left the possession of any of the persons who made the endorsements, as a result of theft or otherwise against the will of this person, of which the owner of the mortgage bond knew or should have known when acquiring it.
The expressions used in the text of paragraph 3 of Art. 48 of the "Law": "on a continuous series of previous endorsements on it"; "if it is proved that the mortgage is out of possession..."; "otherwise beyond the will of that person"; "what the owner of the mortgage bond, when purchasing it, knew or should have known" - all this somewhat complicates not only the formulation of this legal norm, but also its enforcement. So, the phrase "previous endorsements" means that the mortgage itself (for the reasons specified in the "Law") can be pledged an infinite number of times. In favor of this argument, there is also such a point of "direct action": "The inscriptions on the mortgage bond, prohibiting its subsequent transfer to other persons, are void" (clause 4, article 48 of the "Law").
The auditor, accountant, financier and notary, as well as any participant in civil transactions, should know the rule of Art. 8 of the Constitution of the Russian Federation on the equality of all forms (types) of property and that the right to private (including entrepreneurial) property is protected by law (Article 35 of the Constitution of the Russian Federation), as well as that "no one can be deprived of his property otherwise than by a court decision" (Part 3, Article 35 of the Constitution of the Russian Federation). Consequently, any restriction on the disposal of the right of ownership, which in our case should be inscriptions on the mortgage bond, prohibiting its subsequent transfer to other persons, is void. Likewise, the "legal owner" of the mortgage must prove that he is the true, actually legal owner of the mortgage, if the latter has been lost, etc., all based on evidence. In this version, the legislator makes it clear to the law enforcer that the "title" of the legal owner of the mortgage bond in a certain situation (left out of possession against his will) must be proved.
Let's go back to the third party in the mortgage agreement. So, if a third party in accordance with paragraph 2 of Art. 313 of the Civil Code of the Russian Federation has fully fulfilled the obligation secured by the mortgage for the debtor, it has the right to demand the transfer of rights under the mortgage to it. If the pledgee refuses to transfer these rights, a third party may demand judicial order transfer of these rights to oneself (clause 5, article 48 of the "Law").
Mortgage pledge
The legal regulation of the pledge of a mortgage seems to us to be somewhat simpler than the "process" of transferring rights under a mortgage itself, which includes, as it were, four main points.
First moment. The mortgage bond may be pledged by transferring it to another person (mortgage mortgagee) to secure an obligation under a loan agreement or other obligation that has arisen between this person and the mortgagee originally named in the mortgage bond, or its other legal owner (mortgage mortgagee).
Second moment. In the event of default on an obligation secured by a pledge of a mortgage bond, the mortgagee is obliged, at the request of the pledgee of the mortgage, to transfer to him his rights under the mortgage in the manner, on the terms and with the consequences provided for by Article 48 of the Law. In case of refusal to transfer these rights, the pledgee of the mortgage bond may demand in court the transfer of these rights to himself.
Third moment. The mortgagee of the mortgage bond, to whom the rights under the mortgage bond have been transferred or to whom the court has transferred the rights, shall have the right to foreclose on the subject of mortgage in accordance with the terms of the mortgage bond. The proceeds from the sale of the subject of mortgage shall be used to repay the debt of the mortgagee to the mortgagee, and the remaining amount is transferred to the mortgagee to repay the debt due to him under a loan agreement or other obligation secured by a mortgage on a mortgage, to other creditors of the pledgor and to the pledgor himself in accordance with Article 61 "Law".
Fourth moment. A mortgage pledgee may make a special mortgage transfer inscription on the mortgage bond, giving the mortgagee the right to sell the mortgage bond after a certain period of time in order to withhold from the proceeds the amount of the obligation secured by its pledge (Article 49 of the "Law").
Assignment of rights under a mortgage agreement
One way or another, the main contract, the mortgage contract, is closely connected with the mortgage. It goes without saying that even when rights are assigned under a mortgage agreement, the mortgage itself, as a kind of security, plays an important role in these obligations-contractual relations. It is from this point of view that the assignment of rights under a mortgage agreement should be considered in the context of the relationship between a mortgage agreement and a mortgage. Which is what we do.
By virtue of paragraph 1 of Art. 47 of the "Law", the mortgagee has the right, unless otherwise provided by the agreement, to transfer his rights under the mortgage agreement to another person. In this case, the person to whom the rights on mortgage have been transferred takes the place of the former mortgagee under the same agreement. The rules of Articles 382, 384 - 386, 388 and 390 of the Civil Code of the Russian Federation on the transfer of the creditor's rights by assignment of a claim (clause 2 of Article 47 of the "Law") apply to his relations with this pledgee.
Let us return to other aspects of the assignment of rights under a mortgage agreement.
First. Assignment by the pledgee of rights under the mortgage agreement to another person is valid if the same person has been assigned the rights of claim against the debtor under the obligation secured by the mortgage.
Second. Unless otherwise proven, the assignment of rights under a mortgage agreement also means the assignment of rights under an obligation secured by a mortgage.
Third. The assignment of rights under a mortgage agreement in accordance with paragraphs 1 and 2 of Article 389 of the Civil Code of the Russian Federation must be notarized and subject to state registration in the manner established for state registration of transactions with real estate.
And the last thing in this matter. The assignment of rights under a mortgage agreement or an obligation secured by a mortgage, the rights of which are certified by a mortgage, is not allowed. When such a transaction is made, it is recognized as null and void.
The above means that if there is a mortgage agreement (also under an obligation secured by a mortgage), and the rights under such an agreement are certified by a mortgage, the assignment of rights under such an agreement is prohibited under pain of nullity. And this is true, because otherwise, it turns out a veiled, as it were, "double" pledge of real estate: a faulty counterparty cedes the rights under the agreement - "withdraws" the money, and then uses the mortgage under the same agreement - again "takes" the money! The legislator took into account the possibility of the above situation in the mortgage legal relationship. Consequently, it is possible to assign rights under a mortgage agreement, but only if there is no mortgage under the same agreement.
Other provisions on the mortgage and annexes to it
To the conditionally "other" provisions on the mortgage (not counting the content of Article 14 of the "Law", which we will discuss below), we would include its following "properties":
a) changing the subject of mortgage;
b) change in the amount of mortgage security.
These "properties" of the mortgage are legally enshrined in paragraph 6 of Art. 13 "Law". So, in case of partial fulfillment of an obligation secured by a mortgage, the debtor under it, the pledgor and the legal owner of the mortgage bond have the right to conclude an agreement providing for:
- such a change in the subject of mortgage, in which a part of the property previously pledged under this mortgage agreement is recognized as pledged, if the specified part of the property can be an independent object of rights;
- such a change in the amount of security, in which the amount of claims arising from a loan or other agreement and secured under this mortgage agreement increases or decreases in comparison with that which was previously secured by mortgage. This agreement must be notarized.
This fact is also noteworthy. The legislator, taking into account the fact that the mortgage itself will become very widespread in the future, allows certain concessions for its participants, in the sense of facilitating the preparation of the form and content of such documents. So, in the cases provided for in paragraph 6 of Art. 13 of the "Law" ("Properties" of the mortgage), and the transfer of debt on a mortgage-backed obligation, these agreements provide:
or making changes to the content of the mortgage bond by attaching a notarized copy to it this agreement and indications of the agreement as a document that is an integral part of the mortgage bond in the text of the mortgage bond itself in accordance with the rules of the second part of Article 15 of the "Law";
or the annulment of the mortgage bond and the simultaneous issuance of a new mortgage bond drawn up taking into account the relevant changes.
In the latter case, simultaneously with the application for amendments to the data of the Unified State Register of Rights to real estate the pledgor transfers to the body that carried out the state registration of the mortgage a new mortgage, which is handed over to the mortgagee in exchange for the mortgage that is in his legal possession. The canceled mortgage bond is stored in the archives of the body that carried out the state registration of the mortgage until the mortgage registration record is canceled (clause 7, article 13 of the "Law").
Let us also consider the case when the issuance of a mortgage is prohibited.
Drawing up and issuing a mortgage bond is not allowed if:
- mortgages are:
- enterprise as a property complex;
- land plots from the composition of agricultural land to which this Federal Law applies;
- the woods;
- the right to lease the above property;
- a mortgage secures a monetary obligation, the amount of the debt for which is not determined at the time of the conclusion of the contract and which does not contain conditions that allow determining this amount at the appropriate time.
In the cases indicated above, the terms of the mortgage in the mortgage agreement are invalid (clause 4, article 13 of the "Law"). The above wording of paragraph 4 of Art. 13 "Law" literally means the following. Since the mortgage of certain property is prohibited (Article 5 of the "Law") and the issuance of a mortgage on the subject of the mortgage listed in the aforementioned clause, then, naturally, any conditions on the mortgage are prohibited.
From the meaning of paragraph 4 of Art. 13 of the "Law" it is not clear whether the "list" of mortgage items prohibited for the preparation and issuance of a mortgage is subject to broad interpretation? Or not?! In our opinion, this list is exhaustive, because the text of the "Law" does not say otherwise.
And, finally, the last nuance of paragraph 4 of Art. 13 "Law". This is the question that the pledge of real estate, which secures any monetary obligation, must in all cases have a sum expression, and at the time of the conclusion of such an agreement. If the amount of the debt for which the obligation is secured by a mortgage is not determined, then the terms of the mortgage in the mortgage agreement are considered invalid.
This rule is contrary to paragraph 3 of Art. 424 of the Civil Code of the Russian Federation that in cases where the price is not provided for in the onerous contract and cannot be determined based on the terms of the contract, the performance of the contract must be paid at the price that, under comparable circumstances, is usually charged for similar goods. But it is precisely in the matter of setting the price of real estate that there are no contradictions, but there is an exception to general rule. This is the rule of art. 555 of the Civil Code of the Russian Federation that the contract for the sale of real estate must provide for the price of this property. Moreover, if the contract does not contain precisely defined data on the subject, the price of the real estate to be transferred, the conditions in them are considered inconsistent by the parties, and the contract is considered not concluded (part 2 of article 554 and part 2 of paragraph 1 of article 555 of the Civil Code of the Russian Federation ). The legislator, using the above rules in the Civil Code, transferred them to mortgages and mortgages.
The "law" imposes very strict requirements on the very form of the mortgage. The pledge must contain:
- the word "mortgage" included in the title of the document;
- the name of the pledgor and indication of his place of residence or his name and indication of the location, if the pledgor is a legal entity;
- the name of the initial pledgee and an indication of his place of residence, or his name and indication of the location, if the pledgee is a legal entity;
- the name of the loan agreement or other monetary obligation, the fulfillment of which is secured by a mortgage, indicating the date and place of conclusion of such an agreement or the grounds for the occurrence of an obligation secured by a mortgage;
- the name of the debtor under a mortgage-secured obligation, if the debtor is not a pledgor, and an indication of the place of residence of the debtor, or his name and location, if the debtor is a legal entity;
- an indication of the amount of the obligation secured by the mortgage and the amount of interest, if they are payable under this obligation, or conditions that allow at the appropriate time to determine this amount and interest;
- an indication of the deadline for payment of the amount of the obligation secured by the mortgage, and if this amount is payable in installments, the timing (periodicity) of the relevant payments and the amount of each of them or the conditions that make it possible to determine these terms and amounts of payments (debt repayment plan);
- the name and description sufficient for identification of the property on which the mortgage is established, and an indication of the location of such property;
- monetary valuation of the property on which the mortgage is established;
- the name of the right by virtue of which the property that is the subject of the mortgage belongs to the pledgor, and the body that registered this right, indicating the number, date and place of state registration, and if the subject of the mortgage is the leasehold right belonging to the pledgor - the exact name of the property that is the subject of the lease, in accordance with subparagraph 8 of this paragraph and the duration of this right;
- an indication that the property that is the subject of the mortgage is encumbered with the right of life use, lease, easement, other right or is not encumbered with any of the rights of third parties subject to state registration at the time of state registration of the mortgage;
- the signature of the mortgagor, and if he is a third party, also of the debtor under the obligation secured by mortgage;
- information on the time and place of the notarization of the mortgage agreement, as well as information on the state registration of the mortgage provided for by Clause 2 of Article 22 of this Federal Law;
- indication of the date of issuance of the mortgage bond to the original mortgagee (clause 1, article 14 of the "Law").
For a specific purpose, we have cited the text of paragraph 1 of Art. 14 "Law" verbatim. And that's why! The legislator indicates further in the text of paragraph 1 of Art. 14 of the said "Law", that if the document called "mortgage" does not contain any data specified in subparagraphs 1 - 14 of paragraph 1 of Art. 14 of the "Law", then such a document is not a mortgage and is not subject to issuance to the original pledgee. (See also clause 1, article 10 of the "Law": violation of the mortgage rules entails the nullity of the mortgage agreement.)
Within the meaning of paragraph 2 of Art. 14 of the "Law" it is allowed to expand the form, content and single essence of the mortgage bond, but only by agreement between the pledgor and the pledgee. At the same time, other data and conditions that are not established in paragraph 1 of Art. 14 "Law". Therefore, "narrowing" the content of the mortgage is strictly prohibited.
It should be that the developed formalized mortgage forms will soon appear. But even in this case, if there is not enough space on the mortgage bond itself for endorsements or marks on the partial fulfillment of the obligation secured by mortgage, an additional sheet is attached to the mortgage bond, the inscriptions and marks on which are made in such a way that they begin on the mortgage bond and end on this sheet.
Paragraph 3 of Art. 14 of the "Law" states that all sheets of the mortgage form a single whole. They must be numbered and sealed by a notary. Separate sheets of a mortgage bond may not be the subject of transactions.
It may happen that the mortgage does not comply with the mortgage agreement and (or) vice versa. How to be in that case? In this case, priority is given to the mortgage. Thus, if the mortgage agreement does not comply with the mortgage agreement or the agreement, the obligation from which is secured by the mortgage, the content of the mortgage bond is considered correct if its acquirer at the time of the transaction did not know and should not have known about such a discrepancy. This rule does not apply to cases where the owner of the mortgage bond is the original mortgagee (paragraph 1, clause 4, article 14 of the "Law"). A "relaxation" as an exception to the above rule is given to the bona fide original mortgagee.
By virtue of paragraph 4 of Art. 14 of the "Law", the legal owner of the mortgage bond has the right to demand the elimination of the specified discrepancy by canceling the mortgage bond in his possession, and simultaneously issuing a new mortgage bond, if the demand was filed immediately after the legal owner of the mortgage bond became aware of such discrepancy. The originator of the mortgage bond shall be liable for losses incurred in connection with the specified discrepancy and its elimination.
It should be emphasized here that the "Law" does not stipulate the actions of the originator of the mortgage bond: whether they were committed intentionally or through negligence. Therefore, by virtue of Art. 15, paragraph 3 of Art. 401 of the Civil Code of the Russian Federation, in relations between entrepreneurs there is liability without fault, with the exception of force majeure, or in the case of drawing up such a mortgage through the fault of other persons (the pledgor and the pledgee), and if the pledgor is a third party (clause 5, article 13 of the "Law" ), then according to the scheme: “the third party is the pledgee”, then, in case of a mutual form of guilt, the rules of Art. 404 of the Civil Code "Fault of the creditor", or "Delay of the debtor" (Article 405 of the Civil Code), or "Delay of the creditor" (Article 406 of the Civil Code).
Mortgage attachments
The application to the mortgage is directly stated only in Art. 15 of the "Law", and in paragraph 7 of Art. 13 and Art. 9 of the "Law" on the presence of an attachment to the mortgage can only be assumed. Meanwhile, the text of the "Law" (clause 4, article 10; clause 3, article 20; clause 5, article 47; articles 48 and 49 of the "Law") repeatedly refers to the mortgage itself, in particular about its content (Article 14 of the "Law"). And since Art. 15 of the "Law" allows the attachment of various documents to the mortgage, Art. Art. 15 and 14 of the "Law" should be applied in aggregate, because, in our opinion, the mortgage in the future will necessarily have appropriate applications.
The legislator does not define the attachment to a mortgage bond. Yes, it cannot be, since it is impossible to list all the applications that may be needed for a mortgage of various types: a mortgage on a building, a land plot, an enterprise, etc. The legislator, as it were, states the fact that documents defining the conditions of the mortgage or necessary for the mortgagee to exercise his rights under the mortgage can be attached to the mortgage.
Paragraph 2 of Art. 15 of the "Law" is completely filled with democratic content: "If the documents attached to the mortgage are not named in it with such a degree of accuracy that is sufficient for their identification, and the mortgage does not say that such documents are an integral part of it, such documents are not required for persons to whom the rights under the mortgage have passed as a result of its sale, pledge or otherwise.
We would draw the reader's attention to the wording of paragraph 2 of paragraphs 5, 6 and 7 of Art. 13 of the "Law", according to which, firstly, a mortgage bond is issued only after its state registration, and secondly, in the event of a change in its "properties" (changing the subject of mortgage, changing the amount of security) or making other changes to the content of the mortgage bond, such the mortgage bond is subject to, as it were, "re-registration" or the "old" mortgage bond is canceled, and in return the mortgagee is issued a new mortgage bond after its state registration. Thirdly, according to paragraph 4 of Art. 10 of the "Law", the notary makes a mark on the mortgage on the time and place of the notarization of the mortgage agreement, numbers and seals the sheets of the mortgage in accordance with part 2 of clause 3 of Art. 14 "Law". (All sheets of the mortgage form a single whole. They must be numbered and sealed by a notary. Separate sheets of the mortgage cannot be the subject of transactions.)
So, elementary logic tells us that attachments to a mortgage are elements of the mortgage itself! And since the attachments to the mortgage are its separate constituent parts, then, of course, the application to the mortgage bond must be notarized and state registration of the application (applications) to the mortgage bond must be carried out in the same way as the mortgage bond itself. This conclusion also follows from the meaning of paragraph 2 of Art. 13 of the "Law" that the mortgage is a registered security (Article 144 of the Civil Code of the Russian Federation "Requirements for a security").
Mortgage Owner Registration Problems
Unfortunately, the Law "On Mortgage" contains not so many direct reference norms to the Federal Law "On State Registration of Rights to Real Estate and Transactions with It"<*>. These are the norms of paragraph 1 and paragraph 2 of Art. 19 of the Law "On Mortgage" and indirectly - Art. 10 "Law". Therefore, from the very beginning, the specific correlation is not clear to the law enforcement officer. last law with the Law "On Mortgage" specifically in matters of state registration of not only a mortgage, but also a mortgage agreement. There is no particular direct "inverse relationship" between the Federal Law "On State Registration of Rights to Real Estate and Transactions Therewith" and the Federal Law "On Mortgage (Pledge of Real Estate)". This is alarming: in what plane are these two Laws interconnected? There is no single answer.
<*>See: SZ RF. 1997. N 30. Art. 3594 (as amended and supplemented).Abstracting from the analysis of the above-mentioned Laws, which are similar in matters of state registration, we will briefly analyze for the time being the essence of the problems in the registration of mortgage holders. According to paragraph 1 of Art. 16 of the "Law", any legal owner of the mortgage bond has the right to demand from the body that carried out the state registration of the mortgage, to register it in the Unified state register rights to immovable property as a mortgagee, indicating his name and place of residence, and if the owner of the mortgage is a legal entity, his name and location.
In this case, the debtor, by virtue of paragraph 2 of Art. 16 of the Law, under an obligation secured by a mortgage, who has received from the legal holder of the mortgage bond a written notice of the registration of the latter in the Unified State Register of Rights to Real Estate with a duly certified extract from this register, is obliged to make interim payments under the said obligation, without requiring each time to present mortgage to him. Such obligation of the debtor terminates upon receipt of written notice from that or another legal holder of the mortgage bond of the assignment of rights under the mortgage bond.
The absolute novelty of this legal norm is beyond doubt. In the wording: "... without requiring every time to present him with a mortgage" - we see not only some support for the "weak" side of the creditor's civil turnover, but also something more. This is a ban on all sorts of bureaucratic-formal relations in obligations between a creditor and a debtor, but also a manifestation of private law principles in civil law.
Possibilities for exercising mortgage rights and fulfilling mortgage-backed obligations
Let us contrast paragraph 3 of Art. 16 of the Law, Art. 13 of the Federal Law "On the registration of rights to real estate and transactions with it." So, according to this Art. 13, registration of restrictions (encumbrances) of the right of mortgage, lease or other real estate transaction is carried out no later than one month from the date of submission of the application and all other documents. Compare: 1 day and 1 month!
A registration entry on the legal owner of the mortgage must be made within one day from the moment the applicant applies to the body that carried out the state registration of the mortgage, upon presentation of the mortgage on the basis of:
an endorsement in the name of the applicant made in accordance with this "Law" in the name of the applicant, if the person who made such an inscription was the legal owner of the mortgage bond or the mortgagee of the mortgage bond, in whose name a special pledge endorsement was made and who sold the mortgage bond after the period specified in it (clause 4 article 49 of the "Law");
documents confirming the transfer of mortgage rights to other persons as a result of reorganization legal entity or in order of succession;
court decisions on the recognition of mortgage rights for the applicant (clause 3, article 16 of the "Law").
The presence of a mortgage with a certain person means that this person (creditor) has not only the right to receive performance under a certain monetary obligation, but also the right to pledge the property specified in the mortgage (and mortgage) agreement.
The existence of a certain amount of rights by one counterparty (creditor) is opposed by the presence of a certain amount of obligations by another counterparty (debtor). In short, the rights of one subject correspond to the duties of another. Almost all reimbursable obligations are built according to this scheme. Mortgage relationships built on the same legal structure are no exception to this. So, traditionally, unless otherwise provided by law or contract, the owner of the mortgage bond is obliged to present the mortgage bond to that obligated person (debtor or pledgor), in respect of whom the relevant right is exercised, at his request, unless, when pledging the mortgage bond, it is transferred to the deposit of a notary.
In turn, upon fulfillment of an obligation secured by a mortgage, the pledgee is obliged to transfer the mortgage bond to the pledgor in full, and in cases where the obligation is fulfilled in parts, to provide the debtor with the opportunity to make a note on the mortgage bond about the fulfillment of the corresponding part of the obligation or to certify its fulfillment in another way sufficient for the pledgor and obvious to possible subsequent mortgage holders.
At the same time, the fact that the mortgage bond is held by the mortgagee or the absence of a mark or certificate on it in some other way of partial fulfillment of the obligation secured by the mortgage indicates, unless otherwise proven, that this obligation or, accordingly, part of it has not been fulfilled (clause 3, article 17 of the "Law").
The following situation is also possible: when neither the creditor nor the debtor has a mortgage, or both of these persons have lost the mortgage, what to do in this case? The legislator answers this question as well. Thus, the presence of a mortgage bond with any of the persons liable for it or with the body that carried out the state registration of the mortgage indicates, unless otherwise proven or established by the "Law", that the obligation secured by the mortgage has been fulfilled. In this case, the person in whose possession the mortgage bond turns out to be is obliged to immediately notify other persons from among the above mentioned about it.
In cases where, in accordance with the "Law", the mortgage bond is canceled, the body that carried out the state registration of the mortgage, immediately upon receipt of the mortgage bond, shall cancel it by stamping "redeemed" on the front side or in any other way that does not allow its circulation, with the exception of physical destruction mortgage (clause 7, article 17 of the "Law").
A debtor under a mortgage-backed obligation repays his debt in whole or in part by properly fulfilling his obligations under the mortgage bond in accordance with the debt repayment plan to its legal owner or a person authorized in writing by the legal owner of the mortgage bond to exercise rights under it.
In case of transfer of the mortgage bond to the notary's deposit during the pledge, the mortgage debtor under the obligation secured by the mortgage fulfills his obligation by paying the debt to the notary's deposit (accordingly, paragraphs 4 and 5 of Article 17 of the "Law").
Paragraphs 4 and 5 of Art. 17 of the "Law" corresponds to the rules of paragraph 3 of Art. 352 of the Civil Code of the Russian Federation that upon termination of a pledge due to the fulfillment of an obligation secured by a pledge, the pledgee, who had the pledged property, is obliged to immediately return it to the pledgor. A person liable under a mortgage bond has the right to refuse the bearer of the mortgage bond to exercise his rights under the mortgage bond in cases where:
the court accepted for consideration a claim to invalidate the assignment of rights under this mortgage bond or to apply the consequences of the invalidity of this transaction;
the presented mortgage bond is invalid in connection with its loss by the legal owner and the issuance of a duplicate of the mortgage bond (Article 18) or in connection with a violation of the procedure for issuing a mortgage bond or its duplicate, for which the persons liable under them are not responsible.
A person obligated by a mortgage bond is not entitled to raise any objections not based on the mortgage bond against the claims of the legal owner of the mortgage bond on the exercise of rights under it (clause 6, article 17 of the "Law").
Features of the restoration of rights in case of loss of a mortgage
"Law" provided for legal regulation in cases of loss of the mortgage, by restoring the rights to it. Such restoration is carried out by the mortgagor, if he is a third party, as well as by the debtor under the obligation secured by mortgage. In this case, the restoration of rights to the lost mortgage bond is carried out:
- based on the application of the person who is listed as a pledgee in the Unified State Register of Rights to Real Estate;
- in the event that the lost mortgage confirms the fact of establishing all the endorsements made on the lost mortgage, in accordance with Art. 16 "Law";
- on the basis of a court decision issued on the basis of the results of consideration in the special proceedings of a case on the establishment of facts of legal significance in accordance with the procedural legislation of the Russian Federation (Articles 247-248 of the Code of Civil Procedure of the RSFSR; Articles 27, 32 of the Arbitration Procedure Code of the Russian Federation). We recall that according to Art. 27 of the Arbitration Procedure Code of the Russian Federation, cases on establishing facts of legal significance are considered at the place of residence of the applicant, with the exception of cases on establishing the fact of ownership of a building, structure, land plot, which are considered at the location of the building, structure, land.
So, the grounds for the restoration of the mortgage, listed by us above (clause 1, article 18 of the "Law"), in our opinion, are exhaustive and are not subject to broad interpretation. In all disputed cases, incl. and when the registrar refuses to issue another mortgage, the mortgage is restored by going to court. By virtue of Art. 12 of the Civil Code of the Russian Federation with the title "Methods for the protection of civil rights", the restoration of the mortgage is possible at the claim of the interested person. Such a claim could have the following titles: "On the recognition of the right to a mortgage bond" or "On the restoration of the situation that existed before the mortgage bond was issued and the issuance of a duplicate of the mortgage bond," etc.
Meanwhile, if there is no dispute about the right to restore the mortgage, it is restored, moreover, by the pledgor. However, if the pledgor is a third party, then also the debtor, i.e. they, as a rule, jointly draw up a duplicate of such a mortgage. The "law" does not establish an exact or other, but specific deadline for drawing up a duplicate mortgage bond, but only indicates that it (duplicate) is drawn up (must be drawn up) "as soon as possible" with a note "duplicate" on it and transferred to the body that registered a mortgage. The latter must hand over a duplicate to the person who has lost the mortgage.
It seems not entirely successful wording: "in the shortest possible time." The Civil Code of Russia does not contain this concept. The Code contains other concepts in this regard: "fulfillment of obligations in a proper manner"; "in accordance with the terms of the obligation and the requirements of the law, other legal acts"; "in accordance with the customs of business"; "in accordance with the usual requirements" (Article 309 of the Civil Code of the Russian Federation). Finally, regarding the term for fulfilling obligations, there are concepts: "reasonable time", which the debtor is obliged to fulfill within seven days from the date the creditor presents a demand for its fulfillment (Article 314 of the Civil Code of the Russian Federation).
We believe that the introduction by the legislator in paragraph 2 of Art. 18 of the "Law" of the unusual phrase "as soon as possible" will not simplify law enforcement, but on the contrary, it will complicate it. Therefore, it was more appropriate to use in this case the traditional wording of the Civil Code: "within a reasonable time", or within a "short reasonable time", or "possibly reasonable time". In this case, the rules of Art. 314 of the Civil Code of the Russian Federation on the maximum seven-day period for fulfilling an obligation.
And the last, about drawing up a duplicate of the mortgage. It must fully correspond to the lost mortgage. The originator of the duplicate mortgage bond shall be liable for losses incurred due to the non-compliance of the duplicate mortgage bond with the lost mortgage bond. Recall that the losses must be proved in each specific case, which follows from the relationship of Art. 15 and Art. 393 of the Civil Code of the Russian Federation.
Who issues a duplicate? A duplicate of the mortgage is issued by the body that carried out the state registration of the mortgage, by handing it to the person who lost the mortgage. The duplicate mortgage must fully match the lost mortgage.
And further. About the last sentence in Chapter III of the Law "On Mortgage": "Persons obligated by mortgage shall not have the right to refuse the legal owner of a duplicate of the mortgage to exercise rights under it, in connection with the indicated discrepancy, if they are responsible for it." Agree that this wording is not entirely clear. But let's try to figure it out.
The "mortgagable persons" - who are they? Apparently, those persons who have mortgaged their property, i.e. pledgers. So, these "mortgagors", it turns out, "do not have the right to refuse the legal owner of the duplicate of the mortgage bond (in our version - the pledgee) to exercise rights under it." The "rights" are understood as all the rights of the pledgee: to demand the fulfillment of the obligation, to check the pledged property (subject of pledge); demand improvement of the security of the mortgaged property, etc. Finally, the most incomprehensible phrase, the last one in the specified legal norm: "... in connection with the indicated discrepancy, if they are responsible for it." What does this last wording of the legislator mean?! The "law", apparently, has in mind the case when the "inconsistency" of the duplicate mortgage bond arises precisely through the fault of the pledgor as a debtor. In this case, the debtor (mortgagor) cannot refer to the discrepancy between the duplicate mortgage bond and the original mortgage bond. Moreover, the legislator does not have the right to refuse the legal owner of the duplicate (in our case, the mortgagee) to exercise the rights under the duplicate of such a mortgage, because the debtor (pledger) himself drew up this document, and therefore he himself must be responsible for the incorrect compilation of such a document. This is the main meaning of the last sentence in par. 2 p. 4 art. 18 "Law".
Conclusions as a conclusion
So, we have explored the legal problems of the mortgage. Despite some shortcomings in the construction of some legal structures in a mortgage, this "sub-institution" of mortgages, and, consequently, of civil law, has a great future. And the meaning of the mortgage is not only in the fact that it is an absolute novelty in modern civil law, but also in its practical orientation.
Firstly, the mortgage greatly facilitates the civil turnover in mortgage legal relations. So, for example, although a mortgage is drawn up in support of a mortgage agreement, its independent significance is nevertheless obvious. By virtue of Art. 49 of the "Law" a mortgage bond can be pledged, sold and "re-mortgaged" under certain conditions and otherwise disposed of, incl. and by making a special pledge transfer inscription on it, in accordance with the Law "On Mortgage" (Article 49 of the "Law").
Secondly, when pledging or selling a mortgage (mortgagor, mortgagee, third party or other right holder), you can not change the mortgage agreement.
Thirdly, under certain conditions, priority in mortgage relations is given not to a mortgage agreement, but to a mortgage (clause 4, article 14 of the "Law").
Fourthly, the "Law" grants the rights to the parties to the mortgage agreement to change the subject of mortgage (reduce and (or) increase it) or change the amount of security by drawing up an agreement (supplement), but at the same time it is possible not to "remake" the mortgage agreement itself.
Fifthly, the "Law" allows for the possibility of changing the content of a mortgage bond or canceling a mortgage bond with the receipt of a new mortgage bond.
Sixth, it is allowed to add to the mortgage, bypassing the inclusion of any changes (additions) in the mortgage agreement.
And, finally, seventhly, if the mortgage is lost, the entitled person has the right to receive its duplicate.
This is not a complete list of "advantages" of the mortgage. But today, of course, as they say, entrepreneurs cannot immediately feel the value and universal nature of the mortgage in legal relations on the pledge of real estate. However, it won't be long before the harmonization legal acts relating to mortgages, and life will inevitably prove the undoubted merits of a mortgage in a mortgage agreement. Moreover, in the conditions of the still unbalanced market economy There is as yet no other alternative in Russia that can so obviously change the nature of real estate collateral, as mortgages and mortgages do.
Mortgage borrowers often face assignments. The initiator of the transaction may be the lender when assigning mortgage claims to another bank or the borrower himself when he buys housing under construction under an agreement on the assignment of rights to the contract equity participation. What do you need to know in these situations?
Why do banks lend mortgages to others?
Assignment of mortgage rights is one of the main instruments of the mortgage market, allowing banks to raise new funds for further lending. After all, when making mortgage loan the bank becomes a mortgagee - receives a mortgage. The latter confirms two rights of the creditor: collateral real estate and to receive all payments with interest according to mortgage agreement. And the bank can sell this mortgage, thereby transferring both of its rights to another creditor.
Mortgages act as "assets" of banking organizations, therefore, having collected a sufficient amount of these securities, the bank sells them. The proceeds from the transaction allow the organization to continue mortgage lending to citizens. The assignment of rights is often made by small banks in relation to larger credit institutions. Also, this operation is a mandatory component of the activities of AHML partner banks. And a few months after registration in them home loan all mortgages go to the Agency itself.
It is AHML's partner banks that are the most frequent lenders in state-supported mortgages. Therefore, those who are going to take such a mortgage loan need to know not only what the assignment of the right to claim for a mortgage is, but also how they should act.
How does a mortgage sale work?
Interbank transactions with mortgages take place without the direct participation of the borrower. In this case, only the previous and new pledgees, who conclude an agreement on the transfer of claim rights, are considered parties. After that, the mortgage passes into the hands of a new creditor - together with all the rights secured by it. Such a transaction must undergo state registration. The parties submit the following documents to the authorities:
- confirmation of payment of state duty;
- an application under a mortgage agreement drawn up jointly by the current mortgagee and the new creditor;
- contract of assignment of rights under a mortgage agreement.
Although the borrower is not involved in the transaction, the original lender must without fail notify the debtor of the assignment of rights. This is done in writing.
How should the borrower act upon receipt of the notice?
Together with the notice of the transaction, the former lender must send new payment details: it is for them that the borrower will make all subsequent payments. Sometimes a transaction for the assignment of rights of claim occurs so imperceptibly for the mortgagor that he does not even have to change the recipient of the payment. Payments in this case are accepted by the former bank and transfer them to the current creditor.
But it is in this case (when the borrower has not received new details), he needs to be as vigilant as possible. It is better to once again consult with banks (in the old and in the new one) and make sure that everything is legal than to pay the debt to the wrong creditor for months - and end up in court.
The terms of the mortgage loan themselves do not change. The new mortgagee has no right to change the text of the mortgage, and with it the terms of the loan. Therefore, the interest will remain the same, and the payments themselves will be made in the usual amount. The borrower should look for an insurance contract for the mortgaged property and find the "beneficiary" column. If the old creditor (the name of a particular bank) is registered there, then the insurance will have to be reissued in the name of the new pledgee. If the impersonal "current pledgee" is written in this column, then this action is not required.
Upon completion of all payments on the mortgage loan, the borrower is entitled to immediately receive a mortgage. And he should apply for it not to the bank where he took the mortgage, but to the current mortgagee.
In addition to the assignment of the right to claim a mortgage - a common interbank transaction - in the market housing loans there is also a concession of the right to claim the apartment. This is the name of the transaction when the buyer acquires primary real estate on credit not from the developer himself, but from the equity holder under an equity agreement.
Transfer of rights of a shareholder: features of concluding a transaction under the DDU
Mortgage for the "assignment" of rights is the transfer of the right to claim an apartment in an unfinished house. You can make this deal only until the moment when the owner of the home is in the hands of deed of transfer from the builder. Not only the shareholder and the buyer take part in this operation, but also the housing developer himself. In order for a transaction to be recognized as legal, the parties must meet two conditions:
- All settlements must be made between the developer and the shareholder. The current "owner of the rights" is obliged to fully pay for housing in accordance with the terms of the DDU. An appropriate document must testify to the full calculation;
- The parties received the consent of the developer. Here it is important to carefully study the text of the DDU: despite the fact that under the legislation of the Russian Federation the consent of the developer is not necessary, the documents of the shareholder may contain something completely different. Building company must be notified in writing of the proposed transaction, and its initiators must also receive written consent in response;
- The parties received the consent of the bank, to which the borrower applied, to issue a housing loan on such conditions.
When all calculations are made and the consent of all participants in the transaction is received, the parties must sign the appropriate agreement. After that, its state registration will be required. It is provided with the contract of assignment of rights under the DDU agreement itself and a joint statement of the copyright holder and the assignee. For state registration, the participants in the transaction will have to pay a state duty.
The borrower will have the following documents after making the settlements and signing the papers:
- main contract;
- assignment agreement;
- confirmation of all settlements between the parties;
- consent to the transaction of third-party organizations participating in it: the developer and the organization that issued the mortgage loan;
- the act of transferring all of the above documents.
If the equity agreement is terminated, the current right holder will be able to receive only the amount that is written in the terminated DDU. This one is reimbursed fixed amount, even if the actual payments made by the new shareholder turned out to be higher.
Which banks can be contacted?
Not everyone and not in every bank will be able to get a mortgage loan for "assignment". The assignment of rights under the DDU, if it meets with a response in banks, is only if all parties: the equity holder, the developer and the construction site comply with the requirements of the bank. Addresses of accredited new buildings can be found directly from the websites of banks. But not all banking organizations issue such mortgage loans - you can safely apply only to the following banks:
- DeltaCredit;
- Sberbank;
- VTB 24;
- Bank of Moscow;
- MTS bank;
- Promsvyazbank.
A vending new building can also suggest a suitable lender. Often there is an advertising banner banking organization that accredited the construction. And when buying such an object, it may not even be a concession of a claim, but more profitable: lenders offer minimum interest rates for such new buildings, plus the borrower has the opportunity to receive state assistance.
Timoshenko D.A., Deputy Chairman of the Arbitration Court at the IPO "VP Southern Federal District", lecturer at the Modern Humanitarian Academy (Rostov branch).
Mortgage rights may be transferred by the legal holder of the mortgage to another person, including also the debtor of the underlying mortgaged obligation or the mortgagor. The following two types of rights are certified by a mortgage: the right to receive performance on an obligation secured by a mortgage, and the right to pledge property encumbered with a mortgage.
According to Art. 413 of the Civil Code of the Russian Federation, an obligation is terminated by the coincidence of the debtor and creditor in one person, i.e. when a mortgage is transferred to the debtor, the main obligation secured by a mortgage is considered terminated, and it also follows from this (according to clause 1, clause 1, article 352 of the Civil Code of the Russian Federation) that the mortgage securing the obligation itself has ceased. If the rights under the mortgage are transferred by the pledgee to the pledgor, then the mortgage itself will cease, but the main obligation will continue to exist, but without security<1>.
<1>V.A. also draws attention to this. Belov. See: Belov V.A. Securities in Russian civil law: Proc. allowance for a special course. 2nd ed., revised. and additional: In 2 vols. T. II. M.: Center YurInfoR, 2007. S. 401.According to Art. 48 of the Law on Mortgage, the transfer of rights under a mortgage is made by concluding a transaction in a simple writing. The transfer of rights under a mortgage entails the consequences of an assignment of claims (cession)<2>. When transferring rights under a mortgage bond, the person transferring the right makes a mark on the mortgage bond about the new owner. The note must accurately and completely indicate the name (name) of the person to whom the rights under the mortgage are transferred, and the basis for such transfer. The mark must be signed by the mortgagee indicated in the mortgage bond, and if this inscription is not the first, by the owner of the mortgage bond indicated in the previous mark.
<2>Note that this endorsement on the mortgage is a "peculiar" endorsement, which has been repeatedly pointed out in the literature. See, for example: Belov V.A. Decree. op. pp. 351 - 357; Medvedev D.A. On the legal nature of the mortgage // Essays on commercial law. Issue. 5. Yaroslavl, 1998, p. 27; Pavlodsky E. Legal regulation of the mortgage // Economy and law. 2000. N 6. S. 23 - 24; Shevchenko G.N. Legal regulation of securities: Proc. allowance. 2nd ed., rev. and additional M.: Statut, 2005. S. 55 - 56.The transfer of rights under a mortgage to another person means the transfer thereby to the same person of all the rights certified by it in the aggregate. The legal owner of the mortgage bond owns all the rights certified by it, including the rights of the mortgagee and the rights of the creditor under the obligation secured by the mortgage, regardless of the rights of the original mortgagee and previous owners of the mortgage bond.
According to paragraph 4 of Art. 48 of the Mortgage Law, inscriptions on a mortgage bond that prohibit its subsequent transfer to other persons are void. Attention should be drawn to the provision of the Mortgage Act establishing the right of the legal mortgagee to register. So, according to paragraph 1 of Art. 16 of the Law on Mortgage, any legal holder of a mortgage bond has the right to demand from the body that carries out state registration of rights to register him in the Unified State Register of Rights to Real Estate and Transactions Therewith (hereinafter - USRR) as a mortgagee.
This provision of paragraph 1 of Art. 16 of the Law on Mortgage only grants the right to the legal owner of the mortgage bond to register with the USRR, but in no way obliges the legal owner of the mortgage bond to perform actions for such registration.
As A. Konovalov notes, provided by Art. 16 of the Law on Mortgage, the right can be used by the legal holder of the mortgage bond in order to simplify the procedure for interaction between the borrower and the acquirer of the mortgage bond to prove by the latter their rights to receive performance on a monetary obligation secured by a mortgage that arose on the basis of a transaction for the transfer of rights under the mortgage bond<3>.
<3>See: Konovalov A. Strange paper // Ezh-Lawyer. 2005. N 1.According to paragraph 2 of Art. 16 of the Law on Mortgage, a debtor under an obligation secured by a mortgage, who has received from the legal owner of the mortgage bond a written notice of the registration of the latter in the Unified State Register of Rights to Real Estate and transactions with it with a duly certified extract from this register, is obliged to make interim payments under the specified obligation, not requiring each time to present him a mortgage. Such obligation of the debtor terminates upon receipt of written notice from that or another legal holder of the mortgage bond of the assignment of rights under the mortgage bond.
This paragraph 2 of Art. 16 of the Mortgage Law allows us to talk about a significant difference in legal status unregistered and registered mortgagee.
In accordance with paragraph 3 of Art. 16 of the Law on Mortgage, a registration entry on the legal owner of the mortgage must be made within one day from the moment the applicant applies to the body that carries out state registration of rights, upon presentation of the mortgage on the basis of:
- the transfer of the right under the mortgage bond made in accordance with the Mortgage Law and made on the mortgage bond, if the person who made such an inscription was the legal owner of the mortgage bond or the mortgagee of the mortgage bond, in whose name a special pledge endorsement was made and who sold the mortgage bond after the period specified in it;
- documents confirming the transfer of rights under the mortgage to other persons as a result of the reorganization of a legal entity or by way of inheritance;
- court decision on the recognition of rights under the mortgage for the applicant.
With regard to this legislative norm, A. Konovalov notes that "in the event of a transaction between credit institutions for the sale of a loan portfolio containing a large number of mortgages, the period established by law for registering the legal owner of the mortgage in the USRR is obviously unfulfillable. For example, in 2004, when buying a mortgage portfolio, City Mortgage Bank the subject of the transaction were more than 300 mortgages in the amount of several tens of millions of US dollars"<4>.
<4>Konovalov A. Strange paper // Ezh-Lawyer. 2005. N 1.A. Konovalov rightly points out that another important advantage of a transaction for acquiring rights under a mortgage loan using a mortgage is the ability to minimize the costs of the acquirer of rights in terms of paying state duty charged upon registration of contracts. As a rule, in practice, the costs of paying this fee are borne by the acquirer of rights (assignee). But when transferring rights under a mortgage, the transaction itself does not require mandatory state registration, and the acquirer of the mortgage has the right, at his own discretion, to decide whether to register as a mortgagee in the USRR<5>.
<5>See: Konovalov A. Legal regulation of refinancing mortgage loans // Corporate Lawyer. 2007. No. 4.In accordance with Art. 49 of the Mortgage Law, a mortgage bond may be pledged under an agreement on pledge of a mortgage bond without transferring it or with transferring it to another person (the mortgagee of the mortgage bond) to secure an obligation under a loan agreement or other obligation that has arisen between this person and the mortgagee originally named in the mortgage bond, or its other legal owner (mortgage holder).
As noted by some researchers, "...when a mortgage is pledged, its pledgee does not acquire any rights to the pledged thing (neither the right to control the state of the thing, nor other powers that make up the content of the right of pledge), since the pledge itself will be the object of pledge, and only it ; a special pledge inscription on a mortgage bond has no meaning either as a pledge (hidden or open) or as a surety endorsement. The mortgagee of the mortgage bond acquires all rights under it only if the pledgor (owner of the mortgage bond) fails to fulfill the obligation secured by the pledge of the mortgage bond "<6>.
<6> Legal issues market organization mortgage lending in Russia / Ed. V.S. Ema. M., 2002. S. 112.When a mortgage is pledged without transferring it to the mortgagee, the procedure for foreclosing the mortgaged mortgage is regulated by Art. 349 of the Civil Code of the Russian Federation.
When concluding an agreement on the pledge of a mortgage bond with its transfer to the mortgagee of the mortgage bond, the parties have the right to provide for:
- foreclosure on mortgaged property in the manner prescribed by Art. 349 of the Civil Code of the Russian Federation;
- transfer of rights under a mortgage in the manner, on the terms and with the consequences provided for in Art. 48 of the Mortgage Law;
- implementation by the mortgage pledgee on the mortgage of a special mortgage inscription, which gives the mortgagee of the mortgage the right to sell the mortgage after a certain period in order to withhold from the proceeds the amount of the obligation secured by its pledge.
In the legal literature it is noted that the current civil law regulation of the pledge of a mortgage requires professionally competent and organized actions of the pledgees. In order not to get into a difficult situation, mortgagees must enter into pledge agreements with the transfer of the mortgage and at the same time stipulate that all rights of the mortgage lender are transferred to them<7>.
<7>See: Makarov O.V. Contemporary Issues theory of securities // Modern law. 2005. N 4.Circulation of a mortgage bond is terminated by canceling the mortgage bond (according to paragraph 2, clause 7, article 17 of the Law on Mortgage, the body that carries out state registration of rights, immediately upon receipt of the mortgage bond, cancels it by stamping "redeemed" on the front side or in another way that does not allow its appeal), as well as in the event of physical destruction of the mortgage bond.
The mortgage bond is canceled if the mortgage agreement does not comply with the mortgage agreement or the agreement, the obligation from which is secured by the mortgage (Section 4, Article 14 of the Mortgage Law).
It should be noted that the Mortgage Law does not contain a rule on the termination of the mortgage turnover at the request of the participants in the mortgage legal relationship, while maintaining the main obligation.
According to Art. 18 of the Law on Mortgage, the restoration of rights under the lost mortgage is carried out by the pledgor, and if he is a third party, also by the debtor under the obligation secured by the mortgage on the basis of:
- applications addressed to them by a person named in the USRR as a pledgee, if, according to the data entered in the specified register, it is possible to establish the legality of the rights being restored under the lost mortgage;
- a court decision issued on the basis of the results of consideration in the order of special proceedings of a case on the establishment of facts of legal significance, in accordance with the procedural legislation of the Russian Federation.
Note that in the case when the owner of the mortgage was not registered with the USRR as a pledgee, the restoration of his rights is possible only by a court decision.
Summarizing the foregoing, it can be said with confidence that the mortgage institution, designed to speed up, and to some extent simplify economic turnover before today did not justify the hopes placed on him due to imperfection legal regulation features of the circulation of the mortgage, which is an indicator of the need to adopt new legislative adjustments.
New phone scam tricks that anyone can fall for
Chapter VIII. Assignment of rights under a mortgage agreement. Transfer and pledge of a mortgage
Federal Law on Mortgage (Pledge of Real Estate) No. 102-FZ of July 16, 1998Article 47
1. The pledgee shall have the right, unless otherwise provided by the agreement, to transfer his rights to another person:
under a mortgage agreement;
under mortgage-backed obligation (main obligation).
2. The person to whom the rights under the mortgage agreement have been transferred shall take the place of the former mortgagee under this agreement.
Unless otherwise proven, the assignment of rights under a mortgage agreement also means the assignment of rights under an obligation secured by a mortgage (principal obligation).
3. Unless otherwise provided by the contract, the person to whom the rights under the obligation (main obligation) have been transferred shall also transfer the rights ensuring the fulfillment of the obligation.
Such a person takes the place of the former mortgagee under the mortgage agreement.
Assignment of rights under a mortgage-secured obligation (primary obligation) in accordance with paragraph 1 of Article 389 of the Civil Code Russian Federation must be made in the form in which the mortgage-secured obligation (primary obligation) is concluded.
4. The provisions of Articles 382, 384 - 386, 388 and 390 of the Civil Code of the Russian Federation on the transfer of creditor's rights by assignment of a claim shall apply to the relations between the person to whom the rights are assigned and the pledgee.
(Clause 4 as amended by Federal Law No. 18-FZ of February 11, 2002)
5. The assignment of rights under a mortgage agreement or an obligation secured by a mortgage, the rights of which are certified by a mortgage, is not allowed. When such a transaction is made, it is recognized as null and void.
Article 48
1. The transfer of rights under a mortgage is made by concluding a transaction in a simple written form.
The transfer of rights under a mortgage entails the consequences of an assignment of claims (cession).
When transferring rights under a mortgage bond, the person transferring the right makes a mark on the mortgage bond about the new owner.
The note must accurately and completely indicate the name (name) of the person to whom the rights under the mortgage are transferred, and the basis for such transfer.
The mark must be signed by the mortgagee indicated in the mortgage bond, and if this inscription is not the first, by the owner of the mortgage bond indicated in the previous mark.
(Clause 1 as amended by Federal Law No. 18-FZ of February 11, 2002)
2. The transfer of rights under a mortgage bond to another person means the transfer thereby to the same person of all the rights certified by it in the aggregate.
(as amended by Federal Law No. 18-FZ of February 11, 2002)
The legal owner of the mortgage bond owns all the rights certified by it, including the rights of the mortgagee and the rights of the creditor under the obligation secured by the mortgage, regardless of the rights of the original mortgagee and previous owners of the mortgage bond. Unless otherwise agreed in the transaction referred to in paragraph 1 this article, when transferring rights under a mortgage with partial fulfillment of an obligation secured by a mortgage (principal obligation), those obligations that should have been fulfilled before the transfer of rights under a mortgage are considered fulfilled.
(the paragraph was introduced by Federal Law No. 18-FZ of February 11, 2002)
3. An owner of a mortgage bond is considered legal if his rights to the mortgage are based on the mortgage transfer transaction and the last notation on the mortgage issued by the previous owner. He is not considered the legal owner of the mortgage bond if it is proved that the mortgage bond has left the possession of any of the persons who made the endorsements, as a result of theft or otherwise against the will of this person, of which the owner of the mortgage bond knew or should have known when acquiring it.
(as amended by Federal Law No. 18-FZ of February 11, 2002)
4. The inscriptions on the mortgage bond, which prohibit its subsequent transfer to other persons, are void.
5. If a third party, in accordance with paragraph 2 of Article 313 of the Civil Code of the Russian Federation, has fully fulfilled the obligation secured by a mortgage for the debtor, it shall have the right to demand that the right under the mortgage be transferred to him. If the pledgee refuses to transfer these rights, the third party may demand in court the transfer of these rights to himself.
Article 49
1. A mortgage bond may be pledged under a mortgage bond agreement without transfer or with its transfer to another person (the pledgee of the mortgage bond) to secure an obligation under a loan agreement or other obligation that has arisen between this person and the pledgee originally named in the mortgage bond, or its other legal owner (mortgage holder). (as amended by Federal Law No. 18-FZ of February 11, 2002)
2. When a mortgage bond is pledged without transferring it to the mortgagee, the procedure for foreclosing the mortgaged mortgage bond is regulated by Article 349 of the Civil Code of the Russian Federation.
(Clause 2 as amended by Federal Law No. 18-FZ of February 11, 2002)
3. When concluding an agreement on the pledge of a mortgage bond with its transfer to the mortgagee of the mortgage bond, the parties shall have the right to provide for:
1) levying execution on the pledged property in accordance with the procedure established by Article 349 of the Civil Code of the Russian Federation;
2) transfer of rights under a mortgage in the manner, on the terms and with the consequences provided for by Article 48 of this Federal Law;
3) implementation by the mortgage pledgee on the mortgage of a special pledge inscription, giving the mortgagee of the mortgage the right to sell the mortgage after a certain period in order to withhold from the proceeds the amount of the obligation secured by its pledge.
(Clause 3 as amended by Federal Law No. 18-FZ of February 11, 2002)
4. The mortgage pledgee may make a special mortgage endorsement on the mortgage bond giving the mortgagee the right to sell the mortgage after a certain period of time in order to withhold from the proceeds the amount of the obligation secured by its pledge.
What penalties threaten those who start repairs in their apartment
Many of our compatriots took the opportunity to get a mortgage loan and improve their living conditions. Someone finally acquired the treasured meters, someone created new family, someone improved their living conditions. At the same time, all these people became clients of banks that issued mortgage loans. In addition, the happy owners of "meters" received some anxiety: not only do you pay off your mortgage loan every month, but also the situation in the economy is incomprehensible, plus everything - the hype fueled by the media around possible problems mortgages. And then a letter comes from the bank that the mortgage bond (a security certifying the fact of the pledge of your own apartment) has been sold by the bank. All this information in the head does not fit into a clear structure, so we think it all out ourselves, and we know how to think it out.
What is really happening? Why is the bank selling mortgages? Does he have the right to sell your mortgage without your consent? What should you do in this case? What kind additional expenses may arise from the borrower? Why? And in general, what to do? Let's try to understand everything in more detail.
1. Why is the bank selling mortgages?
When issuing a mortgage loan, the bank draws up a security (called a mortgage) that the borrower signs. On the one hand, this security certifies that this apartment is pledged to the mortgage holder, on the other hand, it can be sold to another (new) owner, who, from the moment of sale, begins to receive income from this loan.
According to Art. 13 p.2 federal law dated July 16, 1998 No. 102-FZ (as amended on December 30, 2008) “On Mortgage (Pledge of Real Estate)”: “The mortgage is a registered security certifying the following rights of its rightful owner:
- the right to obtain performance under monetary obligations secured by a mortgage, without presenting other evidence of the existence of these obligations;
- the right to pledge property encumbered with a mortgage.
This means whoever owns the mortgage has the right to receive the borrower's monthly payments on the loan and the right to mortgage the apartment. The mortgage lending system forms the mortgage market: primary and secondary. The primary market is mainly commercial banks that issue and sell loans through the sale of mortgages, on secondary market - financial companies, funds that buy up mortgages of mortgage banks secured by a pledge of property, and then issue other securities (bonds) on their own behalf. Thus, from the position of banks, it is more reasonable, after issuing a long-term mortgage loan, to sell their rights as a lender in the market through the sale of mortgages and thereby attract additional funds for issuing new loans.
2. Does the Bank have the right to sell the mortgage without coordinating this issue with the client?
In accordance with Civil Code The consent of the debtor to the transfer/assignment of the right to claim the debt is not required. The bank simply notifies the borrower of the sale of the mortgage. By the way, there is nothing wrong here. If you are a conscientious payer and pay off the loan on time, it does not matter to you who owns the mortgage on your apartment.
3. How will the assignment of mortgage rights affect the terms of the loan?
Nothing changes for a borrower whose mortgage has been sold. All conditions loan agreement and mortgage (loan amount, interest rate, terms, etc.), the procedure for repaying the loan remains the same. Only the Lender itself and the details of the payment of the debt have changed (this is indicated in the notification letter). All loan issues, such as early repayment of the loan, from now on must be resolved with a new lender.
4. The actions of the borrower in the event of the sale of the mortgage on his loan.
After receiving a notification letter from the Bank on the transfer of rights under the mortgage to another creditor, it is necessary to pay the loan to the creditor (its details are indicated in the notification). This can be done either by opening an account with the bank specified in the notification and transferring money already through new bank, or use the existing account in Plus Bank and make transfers from your previous account. Plus Bank OJSC, in turn, will transfer payments in favor of the new creditor. In this case, a transfer fee will be charged - the bank compensates for its costs of transferring your payments to the recipient (the new owner of the mortgage).
5. What additional costs does the client bear if it is necessary to transfer loan payments to another lender? Why do they arise? How to minimize them?
Let's say that the notice of the sale of the mortgage contains details for transferring payments on the loan, which are different from the previous ones. And the new creditor is a non-bank organization (for example, AHML OJSC), i.e. She has an account with another bank. And now it is to this account that payments on the loan should be received. The task of the borrower is to deliver funds to this account in any way that is most convenient or cheap for him. The commission for transferring loan payments is provided not as an additional payment for the loan, but as payment for any transfers to an account in another bank according to the bank's tariffs. The amount of the commission is set by the bank that transfers the payment to the new lender, that is, the borrower can choose any bank with the lowest transfer fee. This option is also possible: the borrower can write an application to the accounting department at the place of work about the monthly transfer of part wages as payment on a loan to a new lender.