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- Who will pull the past: The Supreme Court explained when it is impossible to take away a mortgage apartment
Who will pull the past: The Supreme Court explained when it is impossible to take away a mortgage apartment
A couple from Bashkiria took out a loan for an apartment in one of the banks, the loan was secured by real estate collateral. A few years later, the mortgage rights went to a local company. It so happened that the debtors had delayed payments several times, and the creditor wanted to collect the remaining amount at once — several hundred thousand rubles. But the homeowners decided to challenge this decision. As the Supreme Court clarifies, seizure is possible only if there is a significant violation. It is important to take into account both the formal indicators and the context. Why is there a delay? Has the borrower taken steps to resolve the situation? Izvestia dealt with the mortgage issue.
All remaining debt
The Supreme Court of Russia has explained in which cases it is impossible to withdraw an apartment purchased with a mortgage due to debts. The case of a family from Bashkiria was considered, which regularly paid off the mortgage for ten years, but then made several delays. After the change of the creditor, the new owner of the debt demanded either to pay the remaining amount immediately, or to sell the apartment due to late payments.
The first court refused to satisfy these demands, citing the fact that the amount of debt was disproportionate to the price of the apartment. The appeal decided that the apartment could be sold. The Supreme Court overturned the appeal decision, stressing that it is necessary to carefully check how large the delays are and what the real cost of the apartment is, as well as assess how much debt is commensurate with the cost of housing.
The judges noted that the apartment cannot be withdrawn if the debtor has made small delays, and the amount of debt is significantly less than the cost of housing. In particular, foreclosure is not applied if the debt is less than 5% of the cost of the apartment or the overdue payments do not exceed three months.
According to current legislation, in case of default on a mortgage loan, the bank has the right to recover the apartment mortgaged under the contract (as well as any other collateral) in court or out of court. This is true even if the apartment is the only habitable dwelling, recalls Vladislav Preobrazhensky, executive director of the Moscow Investors Club.
Article 446 of the Code of Civil Procedure clearly establishes a list of assets that cannot be foreclosed on. Mortgage housing, even if it is the only one, is not included in this list. 348 of the Civil Code of the Russian Federation, such an apartment may be charged to meet the bank's requirements if the mortgage is not paid or is paid improperly.
However, there is one exception here, Vladislav Preobrazhensky notes. It concerns precisely the situation when the amount of the bank's claims turns out to be disproportionate to the cost of the apartment. This is stated in paragraph 1 of Article 54 of the Federal Law "On Mortgages", which was indicated in its ruling by the Judicial Board for Civil Cases of the Supreme Court.
Is the only housing protected with a mortgage loan
No, it's not protected, and that's exactly the point of mortgage lending, the Federal Chamber of Lawyers (FPA) of Russia explains.
Earlier, the Constitutional Court of the Russian Federation (CC) has repeatedly clarified that in this case, the balance of the rights of the creditor and the debtor must be respected. In turn, a person who takes out a mortgage secured by his only home should exercise increased caution.
At the same time, Vita Galaiba, a member of the Russian Bar Association and head of the Verkhnevolzhsky Legal Bureau in Ivanovo, notes that a special provision in the Civil Code stipulates the bank's right to recover mortgage property, even if it is the only one, if the loan payment has not been made for more than three months or the amount of debt is more than 5%.
At the same time, a judicial refusal to sell such an apartment is not a reason for terminating the mortgage, says Evgeniya Basos, associate professor of the Department of Family and Housing Law at the O.E. Kutafin Moscow State Law University. It is important, according to her, to eliminate the circumstances that served as the basis for the initial refusal. She also adds that if the claim for foreclosure on the collateral is filed together with the claim for full early fulfillment of the obligation secured by the pledge, then the outstanding amount of the obligation is the balance of the principal debt, accrued but unpaid interest, etc.
In a recent ruling, the Supreme Court clearly pointed out the need to establish all the circumstances relevant to the case: calculate the number of overdue payments by the debtor, their period, and take into account the market value of the apartment. Anna Shavard, lecturer at the Department of Civil Law at the Moscow University of Finance and Law, MFUA, head of the Law Office No. 3175, believes that this definition will put an end to the formation of a unified law enforcement judicial practice for such cases.
Is housing protected during bankruptcy proceedings
Important recent changes also relate to the situation with personal bankruptcy, recalls Vadim Butin, head of the mortgage lending department at Glavstroy-Real Estate. The State Duma has passed a law that will allow the preservation of the only housing under mortgage, in the event of approval of a debt restructuring plan or a settlement agreement with the lender. In such a situation, the mortgage continues to operate, and foreclosure on real estate is not applied.
In this sense, the resolution of the Constitutional Court of the Russian Federation dated 06/04/2024 No. 28-P is an important clarification on the issues of foreclosure of the mortgagor's only home during bankruptcy proceedings. It says that the courts should exclude from the bankruptcy estate of a debtor citizen the funds earned from the sale of mortgaged residential premises belonging to him as part of the bankruptcy procedure, which is the only one suitable for permanent residence for him and his family members living together in this residential building.
But how do the courts determine the proportionality of debt and housing costs? The methods can be different, says Ruslan Syrtsov, Managing Director of Metrium. Sometimes courts are guided by the current market or even cadastral value. But more often than not, a simpler and more objective criterion is applied — it considers how much, according to the documents, the housing was worth at the time of the transaction. It is this indicator that is most correctly measured with a mortgage loan that encumbers real estate, the expert believes.
According to Nadezhda Kosareva, president of the Institute of Urban Economics Foundation and a member of the Public Council under the Ministry of Construction of Russia, the courts are mainly guided by the requirements of the law, although they are given the right to take into account other evidence of minor violations and disproportionate claims of the value of collateral.
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