Collateral and its types. Features of real estate collateral

Moreover, high-quality instruments for ensuring the fulfillment of obligations are attractive and necessary not only for creditors, but also for the obligated persons themselves - after all, the debtor’s failure is not always associated exclusively with his malicious intent, but also with objective circumstances. A secured obligation practically eliminates in the future unpleasant consequences for the debtor associated with deprivation of rights to family property, prosecution, abuse of creditors, legal expenses, etc.

The classic and, perhaps, the most effective way of such security was and continues to be such today as a pledge.

We can say with confidence that today almost every person has encountered a pledge in one way or another, even from among the economically inactive population or children. For example, a significant number of cars and apartments are currently purchased by individuals using credit funds, which in the vast majority of cases inevitably leads to the collateral of such property.

Let's consider basic information about collateral, its types of collateral and certain aspects of law enforcement practice.

Collateral concept

Pledge is generally understood as a method of securing an obligation, in which the creditor-pledgee, in the event of failure by the debtor to fulfill the obligation secured by the pledge, acquires the right to receive satisfaction of his claims from the pledged property.

At the same time, it should be noted that despite the apparent simplicity of this concept, in practice and in civil doctrine there are a lot of ambiguous interpretations and unresolved contradictions, which makes a pledge not such a simple and unambiguous way to secure obligations as it might seem at first glance. Some of these problems will be covered further, but the topic of collateral certainly deserves a much more in-depth study, which is impossible within the scope of this article.

Pledge legal relations in Russia are regulated by the Civil Code of the Russian Federation (Civil Code of the Russian Federation), Law of the Russian Federation of May 29, 1992 No. 2872-1 “On Pledge” (valid in the part that does not contradict the Civil Code of the Russian Federation), Federal Law of July 16, 1998 No. 102 -FZ “On mortgage (mortgage of real estate)”, the Merchant Shipping Code of the Russian Federation (KTM RF) in terms of maritime pledge, and in relation to the pledge of a bill of exchange – Resolution of the Central Executive Committee of the USSR and the Council of People's Commissars of the USSR dated August 7, 1937 No. 104/1341 “On the introduction of effect of the Regulations on bills of exchange and promissory notes."

In addition, the legal positions on the topic of the article, formed in the decisions of the Plenums of the Supreme Court of the Russian Federation and the Supreme Arbitration Court of the Russian Federation, are also extremely important. We will also highlight some of them.

Subject of collateral

So, as stated above, the essence of a pledge comes down to the provision by the pledgor to the pledgee of certain rights to this or that property in order to ensure the fulfillment of a specific obligation, implying the opportunity for the pledgee to obtain satisfaction of his claim if the secured obligation is not fulfilled.

In other words, property (including things and property rights) must be accepted as collateral, which the mortgagee-creditor can sell and, from the proceeds, reduce or completely extinguish its claims against the debtor.

Property withdrawn from circulation, claims inextricably linked with the identity of the creditor, in particular claims for alimony, compensation for harm caused to life or health, and other rights, the assignment of which to another person is prohibited by law, cannot be the subject of a pledge.

The possibility of transferring money as collateral remains a controversial issue. Traditionally, judicial practice (for example, Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated July 2, 1996 No. 7965/95 and information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated January 15, 1998 No. 26) and theoretical civil law answer this question negatively, bearing in mind that the subject The collateral must have sales potential in the manner prescribed by law, but money in the traditional sense does not have such potential.

...despite the apparent simplicity of the concept of “pledge,” in practice and in civil doctrine there are a lot of ambiguous interpretations and unresolved contradictions...

At the same time, there are also opposing opinions based on a literal interpretation of the law, in which such a prohibition is not directly established. In addition, recent changes to the Federal Law “On Pledge”, introduced by Federal Law No. 405-FZ of December 6, 2011, provide for the opportunity for legal entities and individual entrepreneurs to include in an agreement on the pledge of movable property, which provides for an extrajudicial procedure for foreclosure on the pledged movable property. property concluded to secure obligations related to business activities, as a way of selling the subject of pledge; the pledgee retains the subject of pledge for himself.

That is, based on the literal interpretation of this and other rules on the sale of the subject of pledge in their totality and interrelation, it follows that the regulatory framework underlying the above position of the higher courts has undergone some changes and, perhaps, will soon be changed.

In this context, it should be noted that, contrary to the above contradictions, some sectoral legislation (for example, customs legislation (deposit of funds on account of customs duties) or legislation on public procurement (a pledge of seriousness of intent or deposit of a tenderer) quite actively uses constructions that provide for de- actually cash collateral.

Every entrepreneur who has at least once rented premises for his business knows about cash deposits - the rental market for commercial (and, more recently, residential) real estate has long formed a custom, by virtue of which, when concluding a lease agreement for premises, the tenant makes a deposit in the amount of at least a month payment, which is counted towards the last month of rent, or is withheld by the landlord in the event of a violation by the tenant of the terms of the contract.

Thus, the issue of the possibility of pledging funds remains controversial and requires resolution at the legislative or higher judicial levels.

On the issue of regulating the pledge of claims

During the reform of civil legislation, the Civil Code of the Russian Federation (hereinafter also referred to as the Civil Code of the Russian Federation) was supplemented with relevant rules on the pledge of rights of obligation. Thus, the rights of claim of the pledgor against third parties were regulated as a subject of pledge.

According to the norms of the Civil Code of the Russian Federation (clause 1 of Article 358.6 of the Civil Code of the Russian Federation), the debtor of the pledgor, to whom the claim is pledged, fulfills the corresponding obligation to the pledgor, and the property transferred to the pledgor - creditor by his debtor is automatically encumbered with a pledge.

However, this rule on the transformation of collateral does not apply in a situation where execution is carried out in money. For execution in money, a different legal structure was invented. Sums of money received by the pledgor from his debtor to fulfill the obligation for which the claim is pledged may be credited to the pledge account of the pledgor.

In this case, the pledgor will receive another collateral, which will be the rights under the bank account agreement.

Naturally, the new regulation has given rise to a lot of questions in law enforcement, including the question of the validity of new rules over time, the need to open a special collateral account, pledge of claims in bankruptcy, security of the pledgee, etc.

The Supreme Court of the Russian Federation previously spoke out on the issue of extending the pledge to money received under a pledged claim in the bankruptcy case of Microtest LLC (No. A40-57347/2015).

Then, in fact, for the first time, judicial practice turned to new norms and applied them in bankruptcy.

The dispute was initiated by Microtest's creditor Transcapitalbank. The total debt under the two loan agreements was secured by the pledge of several claims.

The bank indicated that during the period of validity of the pledge agreements, the debtors under the pledged claims paid 335 thousand rubles to the Microtest account. The bank, as well as the guarantor of the debtor, Netwell LLC, which partially repaid the loan, achieved recognition that the claims against Microtest were secured by the pledge of funds in the account.

One of Microtest's creditors did not agree with this conclusion of the courts. The question was raised primarily about the rules giving the mortgagee rights to property received under the pledged obligation. This is the right to receive priority satisfaction from the property received under such an obligation (clause 2 of Article 334 of the Civil Code), and the right to demand the transfer of money received from the pledgor’s counterparties (clause 2 of Article 358.6 of the Civil Code).

The Supreme Court of the Russian Federation considered that when the law speaks of transferring money to the pledgee, it does not mean the extension of the right of pledge to this money, but the emergence of a new obligation in favor of the pledgee. This is an ordinary obligation, subject in the event of bankruptcy to the general regime of settlements with creditors.

An additional argument from the RF Armed Forces was that the money was transferred to the debtor’s regular bank account. And to pledge non-cash funds, the opening of a special collateral account is required (clause 4 of Article 358.6).

In another definition, the SCES of the RF Armed Forces formulated positions on the application of rules on the pledge of claims over time. (Decision of the Supreme Court of the Russian Federation dated November 20, 2017 N 301-ES17-9716 in case A79-8466/2015).

The mortgagee tried to obtain satisfaction from the amounts that came from the lessee of the property to the lessor-mortgagor.

The court indicated that the norm in paragraph. 4 p. 2 tbsp. 334 of the Civil Code of the Russian Federation, according to which the pledgee, in preference to other creditors of the pledgor, has the right to obtain satisfaction of the claim secured by the pledge also at the expense of income from the use of the pledged property by third parties. included in the Civil Code by Law No. 367-FZ, which entered into force on July 1, 2014.

However, taking into account that a law adopted after the conclusion of an agreement and establishing other rules extends its effect to the relations of the parties under such an agreement only in the case where this is directly established in the law.

Since Law No. 367-FZ does not contain such a clause, and the agreement in the plot of the case was concluded on 06/01/2012, then the provisions of Art. 334 of the Civil Code of the Russian Federation as amended by Law N 367-FZ are not applicable in this case.

The court concluded that funds in the form of rent received by the debtor's bankruptcy estate from the rental of property pledged in favor of the bank are subject to distribution in the general manner.

But interestingly this definition was not only a matter of action in time. The question remains as to how the pledge rule will work when the tenant transfers the rent to the landlord's regular account (as a rule, this is the case in a turnover environment).

In relation to the decision in the “Microtest case”, the pledge holder will not be able to receive satisfaction from the incoming funds without opening a special collateral account.

Meanwhile, even if the mortgagee manages to reach an agreement that the money should be paid into the collateral account, the debtor on demand will be able to pay it into another account and thereby remove it from the collateral.

Thus, special attention should be paid to the security of a transaction carried out with the pledge of monetary claims, and the parties must agree on all the conditions for the creation and operation of a collateral account.

The emergence of collateral

As a general rule, a pledge arises by virtue of an agreement between a creditor and a debtor, or a creditor and a third party who is ready to provide their property to secure the fulfillment of an obligation by the debtor.

A pledge is a typical example of an accessory obligation, that is, an obligation that arises in inextricable connection with the main obligation - the debt for which the property is pledged.

This means, for example, that the termination of the main obligation automatically entails the termination of the collateral legal relationship.

In addition, it should be noted the difference in determining the moment of emergence of rights to a pledge depending on the type of pledge. Thus, as a general rule, the right of pledge arises from the moment of concluding a pledge agreement, and in relation to the pledge of property that is to be transferred to the pledgee, from the moment of transfer of this property, unless otherwise provided by the pledge agreement. And when pledging goods in circulation, the pledge arises and terminates depending on the ownership of the goods by the pledgor.

In the pledge agreement, according to Art. 339 of the Civil Code of the Russian Federation, the subject of the pledge and its valuation, the essence, size and period of fulfillment of the obligation secured by the pledge must be indicated. It must also contain an indication of which party holds the pledged property.

The issue of assessing the subject of pledge when concluding an agreement is in many ways of a very formal nature, given that the sale of the subject of pledge is largely regulated and, in any case, the issue of assessing property sold at auction will be raised more than once by the bailiff and the person who will be entrusted with organizing the auction.

...the possibility of transferring money as collateral remains a debatable issue. Traditionally, judicial practice and theoretical civil law answer this question in the negative...

At the same time, the absence of an assessment of the collateral will entail the recognition of the contract as not concluded, so you should not forget about this.

The pledge agreement must be concluded in writing.

The parties may provide in the pledge agreement conditions on the procedure for the sale of the pledged property by a court decision and (or) on the possibility of foreclosure on the pledged property out of court.

An agreement on the pledge of movable property or rights to property to secure obligations under the agreement, which must be notarized, is subject to notarization. For example, a pledge agreement for a share in the authorized capital of a limited liability company is notarized. A mortgage agreement is concluded by drawing up one document signed by the parties and must be registered in the manner established for the registration of transactions with the relevant property. An agreement giving rise to a mortgage by force of law and containing a provision for foreclosure of the mortgaged property out of court must be concluded by drawing up one document signed by the parties.

At the same time, in addition to the contract, a pledge may arise by force of law. So, for example, unless otherwise provided by the purchase and sale agreement, from the moment the goods are transferred to the buyer and until payment, goods sold with deferred payment are recognized as being pledged to the seller to ensure the buyer fulfills his obligation to pay for the goods. A mortgage mechanism is also provided by force of law (pledge of real estate acquired with the use of credit funds); in addition, when transferring a plot of land or other real estate for payment of rent, the recipient of the rent, as security for the obligation of the rent payer, acquires the right of pledge on this property. True, in practice, courts do not recognize goods as pledged if the buyer has paid more than 50% of its value.

Agreement on pledge of property rights (requirements)

This Agreement represents a transaction in which the owner of certain property/rights (hereinafter referred to as the “Pledgor”) transfers such property/right to ensure the fulfillment of certain obligations to the creditor (hereinafter referred to as the “Pledgee”) under a previously concluded agreement.

The peculiarity of this Agreement is that the property rights (claims) of the Pledgor are pledged to a third party who acts as a debtor of the Pledgor under a certain obligation/agreement concluded between the Pledgor and such a third party (hereinafter referred to as the “Third Party”) .

The property right (claim) pledged may be a claim against a Third Party in the form of: (1) transfer of funds in a certain amount; (2) transfer of certain property; (3) performing a certain type of work; (4) provision of a certain type of service.

At the discretion of the parties to this Agreement, the property rights (claims) pledged may provide :

(1) fulfillment of the obligations of the Pledgor to the Pledgee under a previously concluded agreement/transaction between them; or

(2) fulfillment of obligations of third parties (hereinafter referred to as the “Debtor”) to the Pledgee under previously concluded agreements/transactions between the Debtor and the Pledgee.

The developed draft Agreement allows the parties to determine the following key points:

(1) the essence, deadline for fulfillment and price of the main obligation secured by the pledge of property rights (claims);

(2) identification data of the Third Party, the property right (claim) to which is pledged , as well as the name and details of the document on the basis of which such property right (claim) arises;

(3) a list of grounds under which the Pledgee has the right to demand early fulfillment of the main obligation ,

(4) requirements for the safety of documents certifying property rights (requirement);

(5) mutual guarantees of the parties , as well as other provisions.

Peculiarities of concluding a Pledge of Obligatory Rights Agreement

It is important to note that a property right (claim) can be pledged:

(1) which exists on the date of conclusion of this Agreement; or

(2) which will arise in the future on the basis of a contract/agreement concluded by the Pledgor and the Third Party before the date of this Agreement; or

(3) which will arise in the future on the basis of a contract/agreement also concluded between the Pledgor and the Third Party in the future (at a separately agreed time).

In the first situation, the Pledgee's right of pledge arises on the date of conclusion of this Agreement. In the second situation, the right of Pledge arises on the date of occurrence of the direct obligation of the Third Party to the Pledgor. In the third situation, the right of pledge arises on the date of conclusion of a contract/agreement in the future between the Pledgor and the Third Party.

In practice, this type of collateral is considered not reliable enough to ensure the fulfillment of obligations under the main contract/agreement, therefore, together with it, the parties can additionally enter into collateral agreements for other types of property.

Difference from the Pledge Agreement for goods in circulation

The fundamental difference lies in the type of property pledged to ensure the fulfillment of the Debtor's obligations to the Pledgee. Thus, according to the Pledge Agreement for goods in circulation, only goods (equipment, food, medicines, etc.) are pledged.

Difference from the Mortgage Pledge Agreement

The key difference is the type of property pledged to secure the fulfillment of the Debtor's obligations to the Pledgee. Thus, according to the Agreement on Pledge of Movable Property, only vehicles, objects of cultural heritage and other types of movable property, with the exception of goods in circulation, are pledged.

Difference from the Pledge Agreement for shares/shares

The difference between the two documents lies in the type of property pledged to ensure the fulfillment of the Debtor’s obligations to the Pledgee. Thus, according to the Pledge Agreement for shares/shares, (1) corporate rights in the authorized capital of a limited liability company are pledged; or (2) shares of a joint stock company.

Difference from the Agreement on the pledge of rights under a bank account agreement

The key difference is the type of rights pledged to ensure the fulfillment of the Debtor's obligations to the Pledgee. Under the Pledge of Rights Agreement, the rights to use and dispose of a special type of bank account are transferred - the pledge account. The Pledgor deposits the appropriate amount of funds into the specified account to ensure the fulfillment of the main obligation to the Pledgee.

Difference from the Real Estate Pledge Agreement

The fundamental difference lies in the type of property pledged to ensure the fulfillment of the Debtor's obligations to the Pledgee. Thus, according to the Real Estate Pledge Agreement, real estate (apartment, garage, house, land plot, etc.) is pledged as collateral.

How to use the document

The document is ready for use in the daily work of banking and financial institutions registered on the territory of the Russian Federation, employees of legal departments of enterprises, organizations and institutions of both private and state ownership.

Legal entities and individuals, as well as individual entrepreneurs, can act on the side of the Pledgor and the Pledgee.

In order for the document to have legal force , it is sufficient to sign it by both parties , followed by affixing seals (if one of the parties to the Agreement is a legal entity). At the request of the parties, this Agreement can be certified by a notary , in which case it comes into force from the moment of its notarization. The right of pledge under a bank account agreement may arise both on the date of signing of this Agreement by the parties, and on a certain date in the future.

Before actual foreclosure of the pledged property, the Pledgee must send the debtor and the Pledgor a corresponding notice of intention to foreclose.

Applicable Law

The draft of this Agreement for the Pledge of Obligatory Rights has been drawn up in accordance with the current norms of Chapter 23 of the Civil Code of the Russian Federation, as well as the established practice of concluding contracts of this type.

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Types of collateral

Based on the various conditions established by the parties in the pledge agreement, or other circumstances accompanying the pledge legal relationship, the following types of pledge can be distinguished:

Collateral and mortgage

Typically, the pledged item remains in the possession of the pledgor without any changes in the rules for its use (unless additional requirements arise for insuring the property pledged, ensuring its safety and informing the pledgee about the fate of such property).

The legislator separately identifies a situation in which, by agreement of the pledgee with the pledgor, the subject of the pledge can be left with the pledgor under the lock and seal of the pledgee, and an individually defined thing can be left with the pledgor with the imposition of signs indicating the pledge - the so-called firm pledge.

It happens that the parties agree to transfer the collateral directly to the pledgor (mortgage), which, of course, to a certain extent makes it easier for the creditor to foreclose on such property in the future, although it imposes additional obligations on the latter to ensure its safety.

It is noteworthy that in this case, by agreement of the parties, the pledgee may be given the right to use the pledged item transferred to him, regularly submitting a report on use to the pledgor. Under the agreement, the pledgee may be obligated to extract fruits and income from the pledged property in order to repay the main obligation or in the interests of the pledgor.

Initial and subsequent pledge

The mortgagor, who is left with the pledged property “in hand,” can, of course, try to pledge it again, especially since in the vast majority of cases when it comes to movable property, there are usually no certificates of pledge available to a wide range of people ( which is one of the most serious problems of our time).

The pledge of already pledged property is called subsequent and, according to current legislation, the claims of the subsequent pledgee are satisfied from the value of this property after the claims of the previous pledgeholders.

In this case, a subsequent pledge is allowed if it is not prohibited by previous pledge agreements.

The pledgor is obliged to inform each subsequent pledgee of information about all existing pledges of this property and is responsible for losses caused to pledgees by failure to fulfill this obligation.

In the event of foreclosure on the pledged property on claims secured by a subsequent pledge, early fulfillment of the obligation secured by the pledge may be simultaneously demanded and foreclosure on this property may also be made on claims that are secured by a previous pledge and the deadline for filing for foreclosure has not yet arrived. If the pledgee under the previous pledge agreement has not exercised this right, the property that has been foreclosed on claims secured by the subsequent pledge passes to its acquirer as encumbered by the previous pledge.

Thus, a certain priority of the interests and rights of the original mortgagee is established. At the same time, the lack of unified information databases on pledged movable property creates significant risks in the registration of collateral legal relations, which citizens and microfinance organizations now regularly face when concluding collateral agreements in relation to, for example, cars.

Mortgage

Mortgages stand apart when it comes to regulating collateral. And this is not a loan secured by an apartment, as this term has become traditionally understood, but rather a pledge of real estate. Mortgages have become widely known thanks to financing programs for the purchase of residential real estate, which provide for the automatic transfer of such property as collateral to the appropriate credit institution.

Legal relations regarding mortgages are regulated by Federal Law No. 102-FZ of July 16, 1998 “On Mortgage (Pledge of Real Estate),” which establishes many nuances that distinguish a mortgage of real estate from other pledges.

In particular, it provides for a mortgage by force of law (automatic pledge when purchasing real estate using credit funds), state registration of a mortgage (issuance of certificates of registration of ownership of real estate with a note about the encumbrance in the form of a mortgage), the use of a mortgage as a security, and a number others.

At the moment, a mortgage seems to be perhaps one of the most transparent and safe types of collateral.

Pledge of goods in circulation

One of the most interesting types of pledges, which came to us from ancient times, was then known as the “shop pledge.”

A pledge of goods in circulation is recognized as a pledge of goods with their retention by the pledgor and with the provision to the pledgor of the right to change the composition and natural form of the pledged property (inventory, raw materials, materials, semi-finished products, finished products, etc.) provided that their total value is not becomes less than specified in the pledge agreement.

Thus, the pledgor manages to attract borrowed funds by securing the interests of the creditor with the pledge of goods, which the pledgor at the same time has the right to sell and purchase without stopping the work of his enterprise.

The peculiarity of this type of pledge is that it is directly related to the moment of emergence or termination of the pledgee’s ownership of the relevant goods.

Pledge of things in a pawnshop

A previously quite popular type of collateral that many Soviet citizens encountered was the opportunity to receive a certain amount of cash in exchange for a collateral of some value. In the future, the debt could be repaid and the value could be returned.

Otherwise, the pawnshop sold the pledged value. That is, he quite quickly, out of court, foreclosed on the collateral.

Nowadays, the acceptance from citizens of movable property intended for personal consumption as security for short-term loans can also be carried out as a business activity by specialized organizations - pawnshops, whose activities are regulated by Federal Law of July 19, 2007 No. 196-FZ “On Pawnshops” .

Loan agreements and, accordingly, pledge agreements are formalized by the pawnshop issuing a pledge ticket. The pawned items are transferred to the pawnshop.

The pawnshop is obliged to insure in favor of the pledgor at its own expense the things accepted as collateral in the full amount of their valuation, established in accordance with the prices for things of this kind and quality, usually established in trade at the time of their acceptance as collateral.

The pawnshop does not have the right to use and dispose of the pledged items.

In case of failure to repay the loan amount secured by the pledge of things in a pawnshop within the established period, the pawnshop has the right to sell this property after the expiration of a grace period of one month.

As a general rule, foreclosure on pledged property is carried out by pawnshops with a notary's writ of execution, however, an agreement between the pawnshop and the borrower may also provide for the possibility of this operation without such an inscription.

The pawnshop sells the pledged property independently or by organizing a public auction. If the cost of an item exceeds thirty thousand rubles, sale is possible only at public auction.

After this, the pawnshop’s claims against the pledgor (debtor) are repaid, even if the amount received from the sale of the pledged property is insufficient to fully satisfy them.

Collateral and its types. Features of real estate collateral

Unless otherwise provided by the contract, the pledge secures the claim in the amount it has at the time of satisfaction, in particular interest, penalties, compensation for losses caused by delay in performance, as well as reimbursement of the necessary expenses of the pledgee for the maintenance of the pledged item and collection costs. The scope of claims secured by a pledge is significantly wider when pledging real estate. At the expense of the pledged real estate, under the circumstances specified in the law, the pledgee may reimburse the costs of its maintenance and security, and the repayment of the mortgagor's debt on taxes, fees or utility payments associated with this property.

The pledged property remains with the pledgor, unless otherwise provided by the Code, another law or agreement. The pledged item may be left with the pledgor under lock and key and sealed by the pledgee. The subject of the pledge may be left with the pledgor with the imposition of signs indicating the pledge (hard pledge). The collateral transferred by the pledgor for a period of time into the possession or use of a third party is considered to be left with the pledgor.

Pledge agreement. The pledge agreement must indicate the subject of the pledge, the essence, size and deadline for fulfilling the obligation secured by the pledge. The conditions relating to the main obligation are considered agreed upon if the pledge agreement contains a reference to the agreement from which the secured obligation arose or will arise in the future. The parties may stipulate in the pledge agreement a condition on the procedure for the sale of the pledged property, the foreclosure of which is directed by a court decision, or a condition on the possibility of foreclosure on the pledged property out of court. The pledge agreement must be concluded in simple written form, unless a notarial form is established by law or agreement of the parties. A pledge agreement to secure the fulfillment of obligations under an agreement, which must be notarized, is subject to notarization. Failure to comply with the rules contained in this paragraph entails the invalidity of the pledge agreement.

The pledge is subject to state registration and arises from the moment of such registration in the following cases: 1) if, in accordance with the law, the rights securing the ownership of property by a certain person are subject to state registration; 2) if the subject of the pledge is the rights of a participant (founder) of a limited liability company. Records of the pledge of securities are made in accordance with the rules of this Code and other laws on securities. A pledge of other property that is not related to real estate, in addition to the property listed above, can be taken into account by registering notifications of the pledge received from the pledgor, the pledgee, or in cases established by the legislation on notaries, from another person, in the register of notifications of the pledge of such property ( register of notifications of pledge of movable property). In the event of a change or termination of a pledge in respect of which a notice of pledge has been registered, the pledgee is obliged to send a notice of the change in the pledge or the exclusion of information about the pledge within three working days from the moment when he learned or should have known about the change or termination of the pledge.

The rights of the pledgee in relations with the pledgor arise from the moment the pledge agreement is concluded, unless otherwise established by the agreement, this Code and other laws.

In cases where the pledged property becomes the subject of another pledge to secure other claims (subsequent pledge), the claims of the subsequent pledgee are satisfied from the value of this property after the claims of the previous pledgeholders. The seniority of pledges can be changed: by agreement between the pledgees; agreement between one, several or all mortgagees and the pledgor. In any case, these agreements do not affect the rights of third parties who are not parties to these agreements. Subsequent pledges are permitted unless otherwise provided by law. The pledgor is obliged to inform each subsequent pledgee of information about all existing pledges of property. The pledgor who has entered into a subsequent pledge agreement must immediately notify the pledgeholders of the previous pledges and, upon their request, provide information about the subsequent pledge.

Contents of the mortgaged property. The pledgor or pledgee, depending on which of them has the pledged property, is obliged to: 1) insure against the risks of loss and damage at the expense of the pledgor the pledged property in an amount not less than the amount of the claim secured by the pledge; 2) use and dispose of the pledged property in accordance with the rules established by law; 3) not to take actions that may lead to the loss of the pledged property or a decrease in its value, and take measures necessary to ensure the safety of the pledged property; 4) take measures necessary to protect the pledged property from attacks and claims from third parties; 5) immediately notify the other party about the threat of loss or damage to the pledged property, about the claims of third parties to this property, about violations of the rights to this property by third parties. The pledgee and the mortgagor have the right to verify, in documents and in fact, the presence, quantity, condition and storage conditions of the pledged property held by the other party, without creating unjustified interference with the lawful use of the pledged property. The pledgor bears the risk of accidental loss or accidental damage to the pledged property, unless otherwise provided by the pledge agreement. The pledgee is liable to the pledgor for the complete or partial loss or damage of the pledged item transferred to him, unless he proves that he can be released from liability in accordance with the law. By agreement of the pledgor and the pledgee, the pledged item may be replaced with other property. The pledgor intending to exercise the right to restore or replace the pledged item must immediately notify the pledgee in writing. The pledgee has the right to refuse in writing.

The pledgor, who retains the collateral, has the right to use the collateral in accordance with its purpose, including extracting fruits and income from it. The pledgor does not have the right to alienate the pledged item without the consent of the pledgee, unless otherwise provided by law or agreement and does not follow from the essence of the pledge.

Foreclosure on the pledged property to satisfy the demands of the pledgee may be made in the event of non-fulfillment or improper fulfillment by the debtor of the obligation secured by the pledge. Foreclosure of the pledged property is carried out by a court decision, unless an agreement between the mortgagor and the pledgee provides for an extrajudicial procedure for foreclosure of the pledged property. Satisfaction of the pledgee's claim at the expense of the pledged property without going to court (out of court) is permitted on the basis of an agreement between the pledgor and the pledgee, unless otherwise provided by law. An agreement on foreclosure of the pledged property out of court must contain an indication of the methods of selling the pledged property, the value (initial sale price) of the pledged property or the procedure for determining it. The sale of pledged property is permitted no earlier than ten days from the date of receipt by the pledgor and the debtor of a notice from the pledgee or notary, unless a different period is provided by law, and also unless a longer period is provided for by an agreement between the pledgee and the pledgor.

Types of collateral.

1. Pledge without transfer and pledge with transfer of the pledged property to the pledgee. As a general rule, the pledged property remains with the mortgagor. The agreement may stipulate that the pledged item is transferred to the pledgee, a third party for storage, etc. In relation to the pledge of real estate and goods in circulation, it is provided that these objects are not transferred to the pledgee. The subject of the pledge may be left with the pledgor with deprivation of the opportunity to use and dispose of the pledged property - under the lock and seal of the pledgee.

2. Hard pledge - the subject of the pledge remains with the pledgor with the imposition of signs indicating the pledge.

3. Pledge of goods in circulation. Goods in circulation are understood as things defined by generic characteristics (inventory, raw materials, materials, semi-finished products, finished products, etc.) intended for exchange (sale). When pledging goods in circulation, they remain with the pledgor, and he has the right to change the composition and physical form of the pledged property, provided that the total value of the pledged item does not become less than that specified in the pledge agreement.

4. Pledge of things in a pawnshop. The mortgagor can only be a citizen, the mortgagee can only be a pawnshop - a specialized organization that carries out short-term lending to citizens secured by property as a business activity. The subject of the pledge is only movable property intended for personal consumption. The collateral of items in a pawnshop ensures short-term lending to citizens by the pawnshop. No other obligations can be secured by this type of collateral. An agreement to pledge things in a pawnshop is formalized by the pawnshop issuing a pledge ticket, which contains all the essential terms of the agreement (loan amount, collateral, its valuation, etc.). The contract is public.

5. Pledge of rights. The subject of pledge can only be property rights, that is, rights to specific material goods.

— Pledge of obligatory rights - the subject of the pledge may be property rights (claims) arising from the obligation of the pledgor. The pledger of the right may be a person who is a creditor in the obligation from which the pledged right arises (right holder).

— Pledge of rights under a bank account agreement – the subject of the pledge may be rights under a bank account agreement, provided that the bank opens a collateral account for the client. When pledging rights under a bank account agreement, the pledgee can be, in particular, the bank that has entered into a pledge account agreement with the client (pledgor).

— Pledge of the rights of participants in legal entities — The pledge of the rights of a shareholder is carried out by pledging the shares of this company belonging to the shareholder, the pledge of the rights of a participant in a limited liability company - by pledging his share in the authorized capital of the company. Pledge of the rights of participants (founders) of other legal entities is not permitted.

6. Pledge of securities - A pledge of a documentary security arises from the moment of its transfer to the pledge holder, unless otherwise established by law or agreement. A pledge of an uncertificated security arises from the moment a record of the pledge is made in the account in which the rights of the owner of the uncertificated securities are recorded. If the pledge of an order security is made through a pledge endorsement, the legal relationship between the pledgor, the pledgee and the debtor of the order security is governed by securities laws.

7. Pledge of exclusive rights Exclusive rights to the results of intellectual activity and equivalent means of individualization of legal entities, goods, works, services and enterprises can be the subject of a pledge to the extent that the rules of the Civil Code allow their alienation. The general provisions on pledge apply to the pledge agreement of the exclusive right to a result of intellectual activity or to a means of individualization, and the provisions on the pledge of obligatory rights apply to the pledge agreement of rights under an agreement on the alienation of exclusive rights and under a license (sublicense) agreement.

8. Mortgage, or pledge of real estate, is regulated by the Federal Law “On Mortgage (Pledge of Real Estate)”

Under an agreement on the pledge of real estate (mortgage agreement), one party - the mortgagee, who is a creditor under the obligation secured by the mortgage, has the right to receive satisfaction of his monetary claims against the debtor under this obligation from the value of the pledged real estate of the other party - the mortgagor, preferentially before other creditors of the mortgagor , with the exceptions established by federal law.

The mortgagor may be the debtor himself under the obligation secured by a mortgage, or a person not participating in this obligation (a third party).

The property on which the mortgage is established remains with the mortgagor in his possession and use.

A mortgage may be established to secure an obligation under a credit agreement, a loan agreement or another obligation, including an obligation based on purchase and sale, lease, contract, other agreement, damage, unless otherwise provided by federal law.

A mortgage ensures payment to the mortgagee of the principal amount of debt under a loan agreement or other obligation secured by a mortgage in full or in part as provided for in the mortgage agreement.

A mortgage established to secure the execution of a credit agreement or a loan agreement with the condition of paying interest also ensures payment to the creditor (lender) of the interest due to him for using the loan (borrowed funds).

Unless otherwise provided by the agreement, the mortgage also ensures payment to the mortgagee of the amounts due to him:

1) as compensation for losses and/or as a penalty (fine, penalty) due to non-fulfillment, delay in fulfillment or other improper fulfillment of an obligation secured by a mortgage;

2) in the form of interest for the unlawful use of someone else’s money, provided for by the obligation secured by the mortgage or by federal law;

3) for compensation of legal costs and other expenses caused by the foreclosure of the pledged property;

4) to reimburse expenses for the sale of the pledged property.

Property that can be the subject of a mortgage:

1) land plots, with the exception of land plots specified in the Federal Law;

2) enterprises, as well as buildings, structures and other real estate used in business activities;

3) residential buildings, apartments and parts of residential buildings and apartments, consisting of one or more isolated rooms;

4) dachas, garden houses, garages and other buildings for consumer purposes;

5) aircraft and sea vessels, inland navigation vessels and space objects.

The mortgage agreement must indicate the subject of the mortgage, its valuation, the essence, size and period of fulfillment of the obligation secured by the mortgage.

The parties may provide in the mortgage agreement a condition on the possibility of foreclosure on the mortgaged property out of court and (or) the methods and procedure for the sale of the pledged property when foreclosure on the subject of the mortgage by a court decision.

If a mortgage arises by force of law, the parties have the right to provide in a separate agreement a condition on the methods and procedure for the sale of the pledged property when foreclosure on the subject of the mortgage by a court decision.

A mortgage agreement is concluded in writing by drawing up one document signed by the parties and is subject to state registration. The mortgage agreement is considered concluded and comes into force from the moment of its state registration.

State registration of a mortgage agreement is the basis for making a mortgage entry in the Unified State Register of Rights to Real Estate and Transactions with It.

State registration of an agreement giving rise to a mortgage by force of law is the basis for making a record of the emergence of a mortgage by force of law in the Unified State Register of Rights to Real Estate and Transactions with It.

The rights of the mortgagee under the obligation secured by a mortgage and under the mortgage agreement may be certified by a mortgage, unless otherwise established by this Federal Law.

A mortgage may certify the rights of the mortgagee under the mortgage by force of law and under the obligation secured by this mortgage, unless otherwise established by this Federal Law.

A mortgage is a registered security certifying the following rights of its legal owner:

= the right to receive fulfillment of monetary obligations secured by a mortgage, without providing other evidence of the existence of these obligations;

= right of lien on property encumbered with a mortgage.

A mortgage is subject to state registration in the Unified State Register of Rights to Real Estate and Transactions with It in the manner established by the federal law on state registration of rights to real estate and transactions with it. State registration of a mortgage is carried out at the location of the property that is the subject of the mortgage. State registration of a mortgage arising by virtue of a mortgage agreement is carried out on the basis of a joint application of the mortgagor and the mortgagee.

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Termination of bail

The pledge is terminated:

with the termination of the obligation secured by the pledge;
at the request of the pledgor if there are grounds related to the pledgee’s improper care for the safety of the thing;
in the event of the destruction of the pledged item or termination of the pledged right, if the pledgor did not exercise the right to restore or replace the pledged item;
in the event of the realization (sale) of the pledged property in order to satisfy the requirements of the pledgee in the manner prescribed by law, as well as in the event that its sale turns out to be impossible.

Foreclosure of mortgaged property

As a general rule, foreclosure on pledged property is carried out by a court decision, unless, however, an agreement between the pledgor and the pledgee provides for foreclosure on the pledged property out of court.

At the same time, the legislator indicates that satisfaction of the pledgee's claim at the expense of the pledged property out of court is permitted on the basis of an agreement between the pledgor and the pledgee.

An agreement between the pledgor and the pledgee on the extrajudicial procedure for foreclosure on the pledged property can be concluded at any time - both simultaneously with the conclusion of the pledge agreement and after its conclusion.

Execution on the subject of pledge can only be made by court decision in cases where:

the subject of the pledge is a residential premises owned by an individual;
the subject of the pledge is property that has significant historical, artistic or other cultural value for society;
the mortgagor - an individual is recognized as missing in accordance with the established procedure;
the pledged property is the subject of previous and subsequent pledges, in which different procedures for foreclosure on the pledged property or different methods of selling the pledged property are applied;
the property is pledged to secure the fulfillment of various obligations to several co-mortgagors.

A pledge agreement containing a provision for foreclosure on the pledged property out of court or a provision for the procedure for the sale of the pledged property on the basis of a court decision may provide for a method or several methods for the sale of the pledged property, which the pledgee has the right to use at his own discretion, including in a certain sequence or depending on any other conditions.

If a pledge agreement containing a condition for foreclosure on the pledged property extrajudicially is certified by a notary, in the event of non-fulfillment or improper fulfillment by the debtor of the obligation secured by the pledge, foreclosure on the subject of pledge is allowed according to the writ of execution of a notary without going to court in the manner established by the legislation on notary and legislation of the Russian Federation on enforcement proceedings.

In practice, however, the mechanism for extrajudicial foreclosure of pledged property works extremely hard, and the author of the article somehow came across a notary’s categorical refusal to include such a provision in the agreement for pledging a share in the authorized capital of a limited liability company.

Thus, today it can be stated that in the vast majority of cases, the pledgee will have to defend his interests in court and foreclose on the pledged property through the traditional procedures established by law related to the sale of the pledged item through auctions, etc.

Features of the pledge agreement

The rules of the Civil Code of the Russian Federation on real rights apply to the pledge of real estate (mortgage), and in the part not regulated by these rules and the Federal Law of July 16, 1998 No. 102-FZ “On mortgage (mortgage of real estate)”, general provisions on pledge (p. 4, Article 334 of the Civil Code of the Russian Federation).
As a general rule, a pledge arises on the basis of an agreement (clause 1 of Article 334.1 of the Civil Code of the Russian Federation). A pledge agreement must be concluded in simple written form, unless a notarial form is established by law or agreement of the parties. A pledge agreement to secure the fulfillment of obligations under an agreement, which must be notarized, is subject to notarization. Failure to comply with the form of the pledge agreement entails its invalidity (clause 3 of Article 339 of the Civil Code of the Russian Federation).
According to paragraph 1 of Art. 339.1 of the Civil Code of the Russian Federation, a pledge is subject to state registration and arises from the moment of such registration in the following cases: 1) if, in accordance with the law, the rights that secure the ownership of property to a certain person are subject to state registration (Article 8.1); 2) if the subject of the pledge is the rights of a participant (founder) of a limited liability company (Article 358.15). Records of the pledge of securities are made in accordance with the rules of the Civil Code of the Russian Federation and other laws on securities (clause 2 of Article 339.1 of the Civil Code of the Russian Federation). Information about the pledge of rights under a bank account agreement is taken into account in accordance with the rules of Art. 358.11 of the Civil Code of the Russian Federation (clause 3 of Article 339.1 of the Civil Code of the Russian Federation). Pledge of other property not related to real estate, in addition to that specified in paragraphs 1 - 3 of Art. 339.1 of the Civil Code of the Russian Federation, property can be taken into account by registering notifications of pledge received from the pledgor, pledgee or, in cases established by the legislation on notaries, from another person, in the register of notifications of pledge of such property (register of notifications of pledge of movable property). The register of notifications about the pledge of movable property is maintained in the manner established by the legislation on notaries (clause 4 of article 339.1 of the Civil Code of the Russian Federation). Registration of notices of pledge of movable property is carried out in accordance with Art. Art. 103.1 - 103.7 Fundamentals of the legislation of the Russian Federation on notaries.
Any property can be pledged, including things and property rights. Exceptions are established by law (clause 1 of article 336, clause 1 of article 358.1 of the Civil Code of the Russian Federation). The pledge extends to the fruits, products and income obtained as a result of the use of the pledged property in cases provided for by law or agreement (clause 3 of Article 336 of the Civil Code of the Russian Federation). The pledged property remains with the pledgor, unless otherwise provided by the Civil Code of the Russian Federation, another law or agreement (clause 1 of Article 338 of the Civil Code of the Russian Federation). Note: the main provisions on the pledge of rights under a bank account agreement are provided for in Art. 358.9 of the Civil Code of the Russian Federation.
The pledge agreement may provide for the pledge of property that the pledgor will acquire in the future (Clause 2 of Article 336 of the Civil Code of the Russian Federation). The subject of the pledge may be a right that will arise in the future from an existing or future obligation (Clause 2 of Article 358.1 of the Civil Code of the Russian Federation).
The mortgagor can be either the debtor himself or a third party (Clause 1, Article 335 of the Civil Code of the Russian Federation). To pledge a thing, it is necessary that the pledgor has the right of ownership to it. A person who has another property right may pledge a thing in cases provided for by the Civil Code of the Russian Federation (clause 2 of Article 335 of the Civil Code of the Russian Federation). The mortgagor of the right may be a person who is a creditor in the obligation from which the pledged right arises (right holder) (clause 1 of Article 358.1 of the Civil Code of the Russian Federation).
The provisions of the Civil Code of the Russian Federation on pledge do not contain provisions on the consequences of concluding a pledge agreement for the land plot on which the buildings or structures of the pledgor are located. At the same time, in paragraph 1 of Art. 64 of the Federal Law “On Mortgage (Pledge of Real Estate)” states that when mortgaging a land plot, the right of pledge also extends to the building or structure of the mortgagor located or under construction on the land plot.
The rights of the pledgee in relations with the pledgor arise from the moment the pledge agreement is concluded, unless otherwise established by the agreement, the Civil Code of the Russian Federation and other laws (clause 1 of Article 341 of the Civil Code of the Russian Federation). The right of pledge, if the subject of the pledge is property that will be created or acquired by the pledgor in the future, arises with the pledgee from the moment the pledgor creates or acquires the relevant property, except when the law or agreement provides that it arises at a different time (clause 2 Article 341 of the Civil Code of the Russian Federation). If the main obligation secured by the pledge arises in the future after the conclusion of the pledge agreement, the pledge arises from the moment determined by the agreement, but not before the occurrence of this obligation. From the moment of concluding such a pledge agreement, the provisions of Art. Art. 343 and 346 of the Civil Code of the Russian Federation (clause 3 of Article 341 of the Civil Code of the Russian Federation). The law regarding the pledge of real estate may provide that the pledge is considered to have arisen, exists and terminates regardless of the occurrence, existence and termination of the secured obligation (Clause 4 of Article 341 of the Civil Code of the Russian Federation). A pledge of a right arises from the moment of concluding a pledge agreement, and in the case of a pledge of a future right, from the moment this right arises (clause 1 of Article 358.5 of the Civil Code of the Russian Federation). If a pledge of right secures the fulfillment of an obligation that will arise in the future, the pledge of right arises from the moment this obligation arises (Clause 2 of Article 358.5 of the Civil Code of the Russian Federation).
The pledge fully covers the requirements of the pledge holder, including: interest, penalties, compensation for losses caused by delay in performance. In addition, the value of the collateral is used to reimburse the mortgagee's expenses for maintaining the collateral and collection costs. The pledge also ensures reimbursement of the pledgee’s expenses associated with the sale of the pledged item. Otherwise may be provided by law or contract (Article 337 of the Civil Code of the Russian Federation).

Protection of the rights of the mortgagee

As already mentioned, a pledge is a kind of real right (Some civilists, however, classify a pledge not as a real right, but as an obligation, citing the structural placement of the corresponding chapter in the Civil Code, as well as the accessory nature of the pledge obligation - another debatable point about pledge). The legislator provides the mortgagee with a significant set of tools to protect such a right.

Thus, the pledgee, who had or should have had the pledged property, has the right to reclaim it from someone else’s illegal possession, including from the possession of the pledgor.

In cases where, under the terms of the agreement, the pledgee is granted the right to use the pledged property transferred to him, he may demand from other persons, including the pledgor, to eliminate any violations of his rights, even if these violations were not associated with deprivation of possession.

A characteristic principle is the preservation of the pledge when the right to the pledged property is transferred to another person.

In the event of transfer of ownership of the pledged property or the right of economic management or the right of operational management of it from the pledgor to another person as a result of paid or gratuitous alienation of this property (except for cases of sale of this property in order to satisfy the requirements of the pledgee in the manner prescribed by law) or in in accordance with the procedure of universal legal succession, the right of pledge remains in force.

The legal successor of the pledgor takes the place of the pledgor and bears all the obligations of the pledgor, unless otherwise established by agreement with the pledgee.

If the property of the pledgor, which is the subject of the pledge, has been transferred by succession to several persons, each of the legal successors (purchasers of the property) bears the consequences arising from the pledge of failure to fulfill the obligation secured by the pledge in proportion to the part of the specified property transferred to him. However, if the subject of the pledge is indivisible or for other reasons remains in the common property of the legal successors, they become joint pledgors.

...the issue of assessing the collateral when concluding an agreement is largely of a very formal nature. At the same time, the absence of an assessment of the collateral will entail the recognition of the contract as not concluded, so you should not forget about this...

It would seem that everything is clear, but practice, as always, has made its own adjustments.

In the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated February 17, 2011 No. 10 “On some issues of application of the legislation on pledge”, the Supreme Arbitration Court of the Russian Federation stated the following:

“Based on the general principles and meaning of civil legislation (analogy of law) and the requirements of good faith, reasonableness and justice (clause 2 of Article 6 of the Civil Code of the Russian Federation), foreclosure cannot be made on pledged movable property acquired for compensation from the pledgor by a person who did not know and did not should have known that the property he was purchasing was the subject of a pledge. In this case, the courts must evaluate the circumstances of the acquisition of the pledged property, based on which the buyer should have assumed that he was acquiring the property that was pledged. In particular, the courts must establish whether the purchaser was given the original copy of the document evidencing the seller’s right to the property being sold (for example, a vehicle passport) or a duplicate thereof; whether there were signs of a pledge on the pledged property at the time of its transfer to the acquirer.

If the court establishes that the subject of the pledge, in accordance with the pledge agreement, was in the possession of the pledgee, but was removed from possession against his will, the claim for foreclosure on the pledged property shall be satisfied regardless of the fact that the buyer did not know and should not have known that the property he was purchasing was pledged.”

This position shocked the legal community and gave hope to many of our fellow citizens who were victims of fraud with credit (and, accordingly, mortgaged) cars. After all, for the most part, they were absolutely bona fide purchasers who bought cars with a full package of original documents (many banks no longer hold the title of cars for a long time), and there is no unified database on car pledges yet.

However, the Supreme Court of the Russian Federation, with its ruling of July 12, 2011 No. 74-B11-4, instantly brought everyone back to earth.

Thus, as the court noted, regardless of the transfer of ownership of a thing to third parties, the pledgee does not lose the right to foreclose on it for debt, and the rights of a third party can be protected within the framework of other relations.

At the same time, the Civil Code of the Russian Federation does not provide for such a basis for termination of a pledge as the acquisition of pledged property by a person who did not know about its encumberment with a pledge.

The transfer of ownership in this case does not terminate the pledge. The legal successor of the pledgor takes his place.

There are no exceptions in the law that allow the person who acquired such property to be released from the obligations of the mortgagor transferred to him due to the fact that when concluding the purchase and sale agreement he was not aware of the encumbrances imposed.

Thus, regardless of the transfer of ownership of a thing to third parties, the pledgee does not lose the right to demand foreclosure of the debt.

The rights of a third party in such a situation can be protected within the framework of other relations - between him and the former owner (mortgagor) by compensating such seller for losses.

Undoubtedly, this is a decision on a specific case, which may not be used by lower courts in other cases, but in practice, courts of first instance always rely on the position of higher courts.

This contradiction in the position of the highest (although now united) courts has revealed another systemic problem in the assessment and interpretation of the rules of law on pledge, which confirms the thesis stated at the beginning of the article about the ambiguity and complexity of this type of obligation, despite its clarity and apparent simplicity.

Alexey Trofimov

, managing partner of legal, for the magazine "Consultant"

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