A mortgage agreement is an agreement to pledge real estate. In this case, the mortgage agreement is signed by the mortgagee and the mortgagor (legal entities or individuals who have the legal capacity and capacity to carry out the actions provided for by the mortgage).
Issues related to the implementation of mortgage agreements are regulated by federal legislation (the Law “On Mortgage”), as well as other legal acts and general provisions of housing law.
The subject of a mortgage can be real estate objects registered in accordance with the procedure specified by law, for example, land plots, structures and buildings, residential buildings, apartments and parts thereof, garages, dachas, as well as ships and aircraft.
The property pledged under a mortgage agreement does not leave the debtor’s ownership, and only in the event of failure to fulfill the obligations assumed by the mortgagor, the mortgagee can satisfy the existing demands through the sale of the property pledged.
Essential terms of the mortgage agreement
The mortgage agreement must contain:
- the subject of the mortgage (with the obligatory indication of its name, location and other characteristics sufficient for its identification);
- valuation of the property that has become the subject of a mortgage (determined by agreement of the parties and indicated in the contract in value terms);
- the size, term and other essential details of the fulfillment of the obligation secured by the mortgage.
In addition, the mortgage agreement must contain an indication of the grounds for the emergence of rights by virtue of which the subject of the mortgage belongs to the mortgagor, as well as the full name of the body that registered the specified right.
If no agreement is reached on the valuation of the property that is the subject of a mortgage, independent appraisers can estimate the value of the property. Drawing up a mortgage agreement in this case will be as honest as possible.
If the subject of the mortgage agreement is a residential building associated with land, the land plot also becomes the subject of a pledge, and the agreement must include comprehensive information about its address, area, category and cadastral number.
It must be taken into account that apartments and houses owned by a municipality or the state cannot be the subject of a mortgage.
The mortgage agreement is considered not concluded, and the rights and obligations of its parties do not arise in the absence of agreement on at least one of the above essential conditions.
On the application of relations according to the term of the surety agreement to pledge agreements
Good afternoon
Probably many banking lawyers have already encountered this point when analyzing the changes that occurred in 2014 in the Civil Code in the chapter “Securing Obligations”. In practice, we have only now encountered this issue. In general, one of the changes was the introduction of the following norm:
Article 335. Pledgor 1. The mortgagor can be either the debtor himself or a third party. In the case where the pledgor is a third party, the rules of Articles 364 - 367 of this Code apply to the relations between the pledgor, debtor and pledgee, unless otherwise provided by law or agreement between the relevant persons .
One of the rules that appears to apply to the third party bail rules is:
Article 367. Termination of surety
6. The guarantee shall be terminated upon the expiration of the period for which it was given specified in the guarantee agreement. If such a period is not established, it is terminated provided that the creditor does not file a claim against the guarantor within a year from the date of the deadline for fulfillment of the obligation secured by the guarantee . When the deadline for fulfillment of the main obligation is not specified and cannot be determined or determined by the moment of demand, the guarantee is terminated if the creditor does not bring a claim against the guarantor within two years from the date of conclusion of the guarantee agreement.
The presentation by the creditor of the debtor of a demand for early fulfillment of the obligation does not shorten the validity period of the guarantee, determined on the basis of the original conditions of the main obligation.
That is, if your collateral agreement states that it is valid until the obligation secured by the collateral is fulfilled, this means that the collateral will terminate after a year from the date of repayment of the loan under the loan agreement.
At the same time, the courts apply the rules in exactly the above manner, and do not apply, for example, a separate rule in Chapter. about the deposit:
Article 352. Termination of a pledge 1. A pledge is terminated: 1) with the termination of the obligation secured by the pledge; ... 10) in other cases provided for by law or agreement.
Judicial practice on this issue speaks of precisely this approach:
ELEVENTH ARBITRATION COURT OF APPEALS DECISION dated February 28, 2021 in case No. A55-14428/2018 …. The arguments of the appeal are that the court, when considering claims for foreclosure on the pledged property, applies the rules governing legal relations in the field of surety, and the pledge is terminated in accordance with Art. 352 of the Civil Code of the Russian Federation, no other grounds for termination of bail are provided for by law, are rejected by the judicial panel. In accordance with paragraph 1 of Art. 335 of the Civil Code of the Russian Federation, the pledgor can be either the debtor himself or a third party. If the mortgagor is a third party, then the relations that develop between the mortgagee, the pledgor and the debtor are similar in legal nature to the legal relations that arise between the creditor, the debtor and the guarantor when securing an obligation with a guarantee.
In accordance with paragraph. 2 p. 1 art. 335 of the Civil Code of the Russian Federation, in the case where the mortgagor is a third party, the rules of Art. Art. 364 - 367 of the Civil Code of the Russian Federation, unless otherwise provided by law or agreement between the relevant persons. According to paragraph 6 of Art. 367 of the Civil Code of the Russian Federation, the guarantee is terminated upon expiration of the period for which it is given specified in the guarantee agreement. If such a period is not established, it is terminated provided that the creditor does not bring a claim against the guarantor within a year from the date of the deadline for fulfillment of the obligation secured by the guarantee. When the deadline for fulfillment of the main obligation is not specified and cannot be determined or determined by the moment of demand, the guarantee is terminated if the creditor does not bring a claim against the guarantor within two years from the date of conclusion of the guarantee agreement. According to the position of the Supreme Court of the Russian Federation, set out in the ruling dated November 10, 2015 N 80-KG15-18, the specified rule of law (clause 6 of Article 367 of the Civil Code of the Russian Federation) does not allow the indefinite existence of the obligation of guarantors in order to establish certainty in the existence of the rights and obligations of participants in a civil turnover. According to the provisions of the guarantee agreements (clause 4.1) and the pledge agreements (clause 5.1), the guarantee and pledge are valid until the obligations secured by this agreement under the loan agreement are fully fulfilled with all amendments and additions. According to the provisions of loan agreements, their validity period is established until the borrower fully fulfills his obligations under this agreement. The above provisions of the contracts do not contain any indication of a date, a period of time calculated in years, months, weeks, days or hours, or an event that must inevitably occur. According to para. 3 clause 34 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated July 12, 2012 N 42 “On some issues of resolving disputes related to a guarantee”, the condition of the contract on the validity of the guarantee before the actual fulfillment of the secured obligation cannot be considered as establishing the validity period of the guarantee, since it does not comply with the requirements of Art. . 190 Civil Code of the Russian Federation. In this case, the rule is applied according to which the guarantee is terminated if the creditor does not file a claim against the guarantor within a year from the date of fulfillment of the obligation secured by the guarantee. Thus, the court of first instance came to a reasonable conclusion that the condition on the validity of the agreement until the full fulfillment of the obligations secured by this agreement under the loan agreement with all changes and additions cannot be considered a condition on the period. The deadline for fulfilling the main obligation (repayment of the principal debt) for all loan agreements where the borrower is Union Trans Auto LLC is set no later than November 18, 2021. Thus, the deadline for termination of the above surety and pledge agreements came on November 18, 2021 (according to the last time the agreement was concluded). LLC KB "El Bank" went to court after the expiration of the specified date.
The same approaches can be traced in the Resolutions of the Ninth Arbitration Court of Appeal dated April 5, 2021 N 09AP-6703/2019, dated February 7, 2021 N 09AP-67190/2018, dated September 28, 2021 N 09AP-42543/2017-GK , Resolution of the PRESIDIUM OF THE SUPREME COURT OF THE REPUBLIC OF BASHKORTOSTAN dated February 20, 2021 No. 44g-96/2019, APPEAL DECISION OF THE KURGAN REGIONAL COURT dated September 4, 2021 in case No. 33-2751/2018.
Accordingly, the following questions arise:
1) Do you think these are mistakes of the courts and there is hope that the RF Armed Forces will correct this, or was this initially covered by the authors of the amendments to the Civil Code of the Russian Federation? Those. continuation of the course towards bringing relations closer together regarding guarantees and collateral (for example, in a similar way as in terms of pre-given consents to amend the contract - when for collateral they provided a description of the limits of not only the volume, but also cases of changes, etc.)
2) What is the best way to “get out” of this situation - set the term of the pledge with a “reserve” (for example, + 3 years to the loan repayment period), or write that the rules on guarantee do not apply to the pledge agreement (after all, Article 335 of the Civil Code allows establish otherwise by contract) - although it is not clear how the courts will react to this (for example, from the point of view of the Plenum of the Supreme Arbitration Court No. 16 “On freedom of contract and its limits”)? Or is it better to wait for the position of the RF Armed Forces on this issue?
At the moment, I do not think it is correct to use surety relationships in this case. Still, a pledge is more of a property relationship, and not an obligation “in its pure form” as in a guarantee - in a guarantee, after the expiration of the term, the creditor loses the right not to make claims against the guarantor (since these are claims in relation to a predetermined list of property, respectively the absence of a clear term gives rise to a certain “skew” of relations towards the Creditor), and the right to claim a specific thing in the pledge ceases. There must be different regulation. Moreover, it is not directly stated that this is how the term of the pledge is determined. At the same time, there is a direct rule on the pledge, which states that it terminates with the termination of the main obligation. I don’t think it’s faith in this situation to “pull” something else, through the specified references in the law. At the same time, “other cases provided for by the agreement” are spoken of as in Art. 335 of the Civil Code and in Art. 352 Civil Code, i.e. these exceptions can be applied both in one direction and in the other (as in saying that an exception to Article 335 of the Civil Code is Article 352 of the Civil Code, and vice versa.
Also, most likely, all banks will everywhere begin to indicate in collateral agreements a clause on the non-use of surety relationships in a given collateral agreement - in this case, nothing fundamental will change in this matter, because if the legislator initially wanted to achieve the goal of establishing a clear term for the pledge agreement by analogy with a surety, then this most likely will not happen. Then the question is: why was it necessary to change the position?
Mortgage lending as a type of mortgage agreement
Currently, the most common type of mortgage in our country is the purchase by an individual of a property on credit, in which the purchased housing is pledged.
In this case, the persons involved in the implementation of the mortgage system, in addition to the person purchasing housing, are:
- credit institutions (banks);
- appraiser companies involved in assessing the market price of the purchased property;
- insurance companies that evaluate and insure risks that may arise during mortgage lending.
Often, people taking out a mortgage turn to mortgage brokers who provide financial and legal advice in order for the borrower to choose the optimal lending program. These brokers also offer the preparation of a mortgage agreement. The mortgage agreement is something that is best understood with the help of a professional.
The mortgage agreement is signed in any case, this gives guarantees to both parties to the transaction. An experienced lawyer will explain all the features of the contract to you.
Features of a mortgage loan agreement
By purchasing housing with the help of a mortgage, an individual becomes the owner of the purchased property, but his rights are limited. Thus, the permission of the mortgagee is required if the borrower wishes to register family members in the purchased housing, carry out redevelopment, sell the residential premises, exchange them or rent them out. You must know all the features of the contract so as not to make any mistakes. In most cases, the terms of the mortgage agreement are transparent and simple, but this is if you take it from an honest organization.
Features of the mortgage loan agreement are:
- issuing a loan for a sufficiently long period;
- conducting a mandatory check of the borrower's solvency;
- insurance of the collateral;
- carrying out other actions to ensure the security of the transaction.
All types of mortgage agreements are concluded in writing and require a mandatory state registration procedure carried out by state registration authorities at the location of the property that is the subject of the mortgage agreement.
Insurance services
Often, when concluding mortgage agreements, insurance services are imposed on citizens. But the law obliges the borrower to insure only the collateral, and nothing is said about health and life insurance, which some lenders require.
Previously, banks actively imposed life insurance on borrowers. Despite the fact that this practice was recognized as illegal, it can still be encountered today. In addition, do not forget: even if, on the recommendation of the bank, you have additionally entered into a life insurance contract, you can cancel it within five days.
