Is a mortgage a money back guarantee?

The assignment of a claim is a special kind of transaction. The specifics of the assignment of rights to claim a mortgage on an apartment are regulated by the norms of Chapter. 8 of the Federal Law “On Mortgage (Pledge of Real Estate)”, as well as in certain articles of Ch. 24 of the Civil Code of the Russian Federation (Civil Code of the Russian Federation).

Banks, being mortgage holders assign their rights of claim to other persons. If there is a mortgage, then it is possible to transfer authority under this document and pledge it. In addition, individuals have the opportunity to take out a mortgage by assignment from a bank.

Assignment of rights of claim by the mortgagee

According to Art. 47 of the Federal Law “On Mortgage (Pledge of Real Estate)”, the mortgagee, which is a credit institution, may assign its right of claim under the mortgage agreement, if this does not contradict the provisions of the law or the provisions of the agreement. The person to whom the rights are transferred takes the place of the original pledgee under such an agreement.

As a general rule, the person to whom the powers under the main obligation are transferred also receives the rights that are necessary to ensure its execution. Let us note certain features of such a change of persons in an obligation:

It does not require the consent of the mortgage borrower , unless otherwise provided by the agreement. If the assignment is prohibited in the contract, but was still made, then the debtor can file a claim to invalidate it (but only on the condition that the opposite party to the transaction knew or should have known about such a prohibition).
The debtor must be notified in writing that the creditor's rights have been transferred to another person. This can be done by either the original lender or the new lender.
The rights of the mortgagee are transferred to the new creditor to the extent and also on the conditions that existed at the time of transfer of rights.

The mortgagee bank, ceding its rights under the mortgage, is not responsible to the new creditor for failure to fulfill the corresponding requirement by the debtor (the person who took out a loan secured by housing). Exceptions are cases when the bank becomes the debtor's guarantor.

Receipt rules

The mortgage on an apartment under a mortgage loan is made by the person who is most in need of this aspect. As a rule, a banking institution acts as the initiator, and the borrower is required to transfer the necessary package and pay a commission, the amount of which does not exceed 1000 rubles.

When applying for a mortgage, it is important to pay attention to the coincidence of the clauses of the agreement and the security. The presence of a discrepancy leads to the fact that the mortgage plays a dominant role. If the case reaches the judicial authority, the latter will focus on it, and not on the mortgage agreement. That is why, before registration, it is important to check the documentation and make sure that the information entered is consistent, as well as the presence of a seal.

Transfer of rights to a mortgage and pledge of a mortgage

Sometimes a mortgage agreement is concluded in the form of a mortgage , which greatly simplifies and speeds up the turnover of real estate. This document is a registered security that certifies the right of its owner to receive fulfillment of the monetary obligation that is secured by a mortgage, as well as certifying the right of pledge on the property.

In Art. 47 of the Federal Law “On Mortgage (Pledge of Real Estate)” states that the assignment of the right to claim under a mortgage, the rights under which are certified by a mortgage, is not allowed Even if such a transaction is completed, it will be considered void. However, the transfer of rights to a mortgage is allowed , as well as its pledge.

According to Art. 48 of the Federal Law “On Mortgage (Pledge of Real Estate)”, a transaction to transfer rights to a mortgage can be carried out in simple written form (that is, it does not require notarization or state registration). The person transferring the right makes a note on the mortgage indicating who the new owner is. In this case, it is necessary to accurately and completely indicate the name (or title) of the new mortgage holder. Next, the mortgagee signs the mortgage note.

After this, the entire set of rights certified by this document passes to the new owner. The credit institution may transfer the rights to the mortgage to any third parties . If there are inscriptions on it prohibiting transfer, then they are void.

When transferring rights under a mortgage, personal data of the individual mortgagor is also transferred. However, the consent of such an individual to this transfer is not mandatory.

Also, according to Art. 49 of the Federal Law “On Mortgage (Pledge of Real Estate)” a pledge of a mortgage . It is allowed to be pledged under the appropriate agreement, both with and without transferring it to another person (pledgee). This is done to ensure obligations .

If it is mortgaged without transferring it to the mortgagee, then foreclosure on such mortgage is applied in accordance with Art. 349 of the Civil Code of the Russian Federation, which states that foreclosure on mortgaged property must be carried out by court decision . However, the parties may provide in the relevant agreement for an out-of-court procedure for foreclosure.

If a mortgage is pledged with its transfer to the mortgagee, then in the relevant agreement the parties have the right to agree :

on foreclosure of the pledged property in the manner provided for in Art. 349 Civil Code of the Russian Federation;
on the transfer of rights under the mortgage on the conditions, in the order and with the consequences established in Art. 48 Federal Law “On Mortgage (Pledge of Real Estate)”;
that the original (mortgage) holder will place a special pledge , which will give him the right to sell the mortgage after a certain time in order to retain the amount of the obligation secured by this document from the proceeds.

Pledge of a mortgage is considered a simpler procedure than the transfer of rights under this document.

Registration rules

In 2021, the mortgage note is transferred to the Registration Chamber, taking into account the region of residence of the borrower or the address of the apartment. As soon as the security receives a number and the necessary notes are made, the following information is indicated in Rosreestr: the place of registration of the mortgage agreement - by the authority registering the encumbrance, as well as the date of transfer.

A mortgage note is invalid until it is included in the Rosreestr database. But the borrower should not worry about this, since this issue is resolved by the banking institution (lender) independently. The client of the financial institution receives a certificate confirming ownership, with a note indicating the presence of an encumbrance and the requirement to remove it.

How to formalize the assignment of rights under a mortgage for an apartment

As stated in Art. 47 Federal Law “On Mortgage (Pledge of Real Estate)”, rights under a mortgage on an apartment are assigned in the form in which the main obligation . The same is required by paragraph 1 of Art. 389 of the Civil Code of the Russian Federation, which states that the assignment of the right of claim under a transaction that requires state registration (namely, a mortgage) must be registered in the manner established for registering such a transaction.

It is important to note that when assigning the right of claim under a mortgage agreement, the original mortgagee transfers to the new lender all the personal data of the mortgagor in compliance with the norms of the Federal Law of July 27, 2006 No. 152-FZ “On Personal Data”. The person to whom the right of claim has been assigned is obliged to maintain confidentiality and ensure the security of such information. It is responsible for their possible disclosure.

CERTIFICATE OF MORTGAGE AGREEMENTS

Under a real estate purchase and sale agreement, the seller undertakes to transfer ownership of a land plot, building, structure, apartment or other real estate to the buyer, and the buyer undertakes to accept and pay a certain amount of money for it. This norm contains two main features:

In this case, a necessary condition for a contract with deferred payment is the period when the buyer must make payment. If the contract contains only a general indication of this without specifying a specific time, the contract will be considered valid, but the seller may have problems receiving money in the future. According to Art. 488 of the Civil Code, when the deadline for payment is not provided for by the contract, in accordance with Art. 314 of the Civil Code, payment must be introduced within a reasonable time after the obligation arises, in case of non-fulfillment - within seven days from the date of presentation of the demand. The length of a reasonable period is a controversial issue in legal theory. Therefore, it is advisable for the notary to invite the parties to clearly define the specific payment date directly in the contract.

We recommend reading: Standard for Providing Housing and Utilities Subsidies in the Moscow Region

How to get a mortgage from a bank when transferring an apartment

As a rule, as any new building is being built, some of the buyers of future apartments decide to resell the property, which can be done from the moment of registration of the share participation agreement until the signing of the property acceptance certificate. In this case, a transfer of rights .

If the new owner does not have enough funds to pay for the transfer, then you can take out a mortgage from a bank, although not all banks provide this service.

Let's take a step-by-step look at how to take out a mortgage by assignment from a bank:

First, it is advisable to contact the bank that financed the property under construction , because in this case the chances of getting approval for a mortgage are maximum. If this bank refuses to issue a loan, then you should look for another credit institution where a mortgage would be possible.
Next, after approval of the loan application, you need to collect all the necessary documents for the apartment and other papers that the bank will require.

As a rule, banks agree to mortgage lending in cases where the following conditions are met:

the developer and the participant in shared construction have concluded and registered an agreement for participation in shared construction (and such an agreement must be fully paid);
a participant in shared construction and a bank borrower entered into an assignment of rights under a shared participation agreement, which is subject to mandatory state registration.

The issuance of credit funds to the participant in shared construction is carried out after the execution of the assignment of rights agreement and presentation of the registered document to the bank.

Example

A. decided to sell housing in an unfinished apartment building, but he only paid half of the purchase of such housing on credit. The bank that buyer B turned to refused him a mortgage because the equity participation agreement had not been fully paid. Only after repaying the loan was A. able to sell his apartment to B. (in addition, enough time had passed to complete the construction of the house).

It will be much more difficult to deal with a mortgage on assignment in a bank if the participant in shared construction himself bought the property on credit, because in this case the assignment transaction can only be completed in the same bank where the loan for the purchase was issued. Thus, the new owner will have to agree to all the conditions of this bank, including the amount of the down payment, the amount of the lending rate, etc.

What to do if lost?

Difficulties are possible in a situation where the bank (collateral holder) has lost the documentation. Here you need to issue a copy (duplicate) with subsequent registration in Rosreestr. In other words, if lost, the process of receiving it is similar to the procedure for registering the original security. The difference is that a mark is made on the newly created documentation indicating the fact that the mortgage is a duplicate.

When preparing a copy, extreme care is required to avoid discrepancies in the texts (when compared with the loan agreement and the original). A situation is possible when a security is lost, and the banking institution does not bother to restore it. Under such circumstances, it is worth contacting the administration by writing an official letter addressed to the director of the credit institution. In it, the borrower demands an answer about the reasons for inaction. It is important to trace the fact of registration of the application in the organization’s accounting department.

What is the difference for a borrower between a loan and a mortgage?

Mortgage term;
Availability of a life insurance policy;
Availability of special programs with developers (for primary developers);
Amount of down payment;
Degree of housing readiness (for primary housing);
Possibility to confirm the amount of income;
Participation in federal support programs for certain categories of borrowers.

A down payment is required;
The maximum loan size depends on the size of the down payment;
Borrowed funds are sent directly to the seller of real estate (construction project) in non-cash form;
To approve a mortgage, you need to collect the required package of documents;
The bank approval process is quite lengthy;
The loan term is any, until the borrower reaches the pension line;
Annual mortgage rates start from 11-13%;
The object is subject to approval by the bank:

Its liquidity is taken into account;
Legal purity of history;
Reliability of the primary developer;
Shares in an apartment are generally not credited.

26 Jan 2021 etolaw 1659
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