3.1.1 Subject of pledge

The most common way to secure the repayment of a loan is a pledge (Articles 334-358 of the Civil Code of the Russian Federation) - a method of securing an obligation, in which the creditor (mortgagee) has the right, in case the debtor fails to fulfill this obligation, to receive satisfaction at the expense of the pledged property predominantly over other creditors.

The pledge agreement is concluded only in writing, simple or notarized. When concluding a pledge agreement, it is very important to observe its form, and, if necessary, the registration procedure. Their violation entails the invalidity of the contract.

The real estate pledge agreement requires additional state registration (clause 1, article 131 of the Civil Code of the Russian Federation) with the relevant authorities.

The subject of a pledge may be any property, including things and property rights (claims), with the exception of property withdrawn from circulation, claims inextricably linked with the personality of the creditor, and other rights, the assignment of which to another person is prohibited by law.

Before the conclusion of the contract, an act of verification of the pledge is drawn up with access to the place. The representative of the bank checks the subject of pledge actually and according to accounting data. At the same time, an act is drawn up, signed by a representative of the bank, the head and chief accountant of the borrower.

credit solvency borrower guarantee

3.1.2 Termination of pledge

The pledge ends:

With the termination of the secured obligation;

At the request of the mortgagor (loan recipient) in case of gross violation by the pledgee (bank) of obligations, creating a threat of loss or damage to the pledged property;

In the event of the destruction of the pledged thing or the termination of the pledged right, if the pledgor did not restore the subject of pledge within a reasonable time or did not replace it with another property of equal value;

In the event of the sale of the pledged property at a public auction, as well as when the sale of the subject of pledge turned out to be impossible and the repeated auction was declared invalid, and the pledgee did not exercise the right to retain the pledged property within a month after the auction was declared invalid.

When the pledged property is withdrawn due to the fact that in reality the owner of this property is another person, or in the form of a sanction for the commission of a crime or other offense, the pledge in respect of this property is terminated.

The pledgee may transfer his rights under the pledge agreement to another person in compliance with the rules for transferring the creditor's rights by assignment of a claim (cession) - when the creditor's rights of claim are assigned to another person under the main obligation. With the transfer to another person of a debt under an obligation secured by a pledge, the pledge is terminated if the pledgor has not given the creditor consent to be responsible for the new debtor.

The bank, when considering the subject of collateral, must first of all take into account the value of this property for the borrower, since the collateral should be an incentive to repay the loan, and secondly, an opportunity for the bank to satisfy its requirements at the expense of the pledged property.

In the current law (Article 334 of the Civil Code of the Russian Federation), the structure of the pledge is that in the event of non-fulfillment or improper fulfillment of the obligation secured by the pledge, the pledgee receives not the subject of the pledge, but the right to satisfy his claims from the value of the pledged property, which, naturally, can be implemented. However, it is first necessary to foreclose on the pledged property in a judicial proceeding. Thus, quite a lot of time passes, as a result of which the creditor, due to the withdrawal from circulation of borrowed funds on the main obligation, incurs additional losses and, in general, the pledge loses its true purpose.

In order to avoid such a situation in law enforcement practice, some lending banks and borrowers voluntarily agree to the transfer of pledged property to the property of the pledgee, but in this case it should be stated that there is a compensation between the parties, provided for in Article 409 of the Civil Code of the Russian Federation, and not the realization of the rights of the pledgee.

3.1.3 Real estate pledge

In cases where the return of the loan is secured by a pledge of real estate, the claims of the creditor-mortgagee are satisfied from the value of the pledged property only by a court decision. Without going to court, claims are satisfied only on the basis of a notarized agreement between the pledgee and the pledgor, concluded after the grounds for foreclosure on the subject of pledge arose (clause 1, article 349 of the Civil Code of the Russian Federation). If the agreement on the pledge of movable property does not specify the condition for resolving the dispute without a court, you should apply to the court for permission to levy execution on the pledged movable property (clause 2 ibid.).

Realization of the pledged property is carried out by sale at public auction in the manner determined by the procedural legislation, unless a different procedure is established by law (clause 1, article 350 of the Civil Code of the Russian Federation). At the request of the pledgor, the court has the right to postpone its sale for up to one year. The postponement does not release the debtor from compensation for the creditor's losses and penalties that have increased during the delay. The pledgor has the opportunity at any time before the sale of the pledged property to stop foreclosure on the subject of pledge, if he fulfills the obligation secured by the pledge or that part of it, the fulfillment of which turned out to be overdue. Thus, the opinion that, within the framework of the current legislation, it is possible to sell the pledged real estate by transferring it to the creditor-mortgagee, is untenable, although it may be promising in the future. In addition, it must be remembered that the specified conditions included by the parties in the pledge agreement, under the current legal regime, can lead to negative consequences for the pledgee, since the unscrupulous pledgor has the opportunity to recognize the pledge agreement with the condition for the sale of the pledged real estate as sham, that is covering the intentions of the parties in case of non-fulfillment of the obligation secured by the pledge to resort to compensation, and not to the exercise of the rights of the pledgee, as they are defined by the current legislation. Therefore, in this case, the creditor should be aware that, under such conditions, he will have the right to use the release clause, and not the pledge clause. And in this situation, he will not receive the corresponding advantages in relation to the mortgaged real estate.

3.1.4 Sale of pledged property

From a legal point of view, a pledgee is a creditor under a secured principal obligation, which is aimed at the prompt sale of the pledged property in the event of non-repayment of credit funds (Article 334 of the Civil Code of the Russian Federation). From these positions, the legal regulation of collateral and its implementation in banking legislation lag far behind the current practice, which significantly reduces the lender's interest in this method of ensuring the repayment of credit funds. First of all, this concerns the procedure for the sale of pledged property established by law.

Part one of the Civil Code expands the scope of the pledgee's claims, which can be satisfied at the expense of the pledged property. The pledge, unless otherwise provided by the contract, secures the claims in the amount by the time of satisfaction, in particular, interest, penalty, compensation for losses caused by delay in performance, as well as compensation for the necessary expenses of the pledgee for the maintenance of the pledged thing and the costs of recovery.

Article 23 of the Law of the Russian Federation "On Pledge" did not include a penalty in the scope of the creditor's claims satisfied at the expense of the pledged property, and this type of liability was applied only if it was mentioned in the pledge agreement itself. Analyzing Article 28 of the Law on Pledge and Article 349 of the Civil Code of the Russian Federation, it can be concluded that the Law on Pledge more strictly regulates the procedure for levying execution on pledged property, as a result of which collection was possible only by a court decision or, in cases provided for by law, on the basis of a notary’s executive inscription . The specified norm did not give the parties the opportunity to provide for a different procedure for foreclosing property. According to the Civil Code, there are two options for foreclosing mortgaged property: by a court decision and without going to court.

Article 349 of the Civil Code of the Russian Federation, according to which notarization of the pledge agreement itself is not enough for the indisputable foreclosure on property, requires a special agreement between the pledgor and the pledgee for this action without going to court, concluded after the grounds for foreclosure arose and certified by a notary.

Thus, the new legal norms have significantly changed the procedure for levying execution on pledged property, making it more reasonable and consistent with reality. But this cannot be said about the rules regulating the procedure for the sale of pledged property exclusively through public auction.

The parties to pledge legal relations should have a choice in the order of sale of the pledged property. The procedure for the sale of the pledged property subject to foreclosure could be provided for in the pledge agreement. In this sense, the procedure for the sale of pledged property, which is foreclosed, determined by the terms of the pledge agreement, may be recognized by the courts as justified.

3.1.5 Pledge of rights

When the ownership right is transferred to the creditor as security for the debt, the client's movable property remains in his use. This occurs when the transfer of value to the lender is impossible and impractical, and when the borrower cannot refuse to use the loan collateral. In this case, the borrower is responsible for the safety of the valuables remaining in his use, and does not have the right to independently dispose of them. Both individual items (a car) and a group of items located in the same warehouse or workshop (goods, stocks of materials, semi-finished products) can act as collateral objects. When concluding an agreement on the transfer of ownership to secure an existing debt, the bank must make sure that the borrower is really the owner of specific assets. However, this verification does not reduce the great risk that accompanies the transfer of ownership. The lender largely depends on the honesty of the borrower who has the object of collateral.

The subject of pledge may be the rights of possession and use belonging to the pledgor, including the rights of the tenant, other rights (claims) arising from obligations, and other property rights.

A right with a certain period of validity may be the subject of a pledge only until the expiration of its period of validity.

In an agreement on the pledge of rights that do not have a monetary value, the value of the subject of pledge is determined by agreement of the parties. The fact that in the case of a pledge of rights (for example, to property), as well as in the case of a pledge of property leaving it with the pledgor, all responsibility for the safety of this subject of pledge falls on the shoulders of the pledgor, is perhaps the only advantage of this type of pledge.

Disadvantages of a pledge of rights:

The lender depends on the honesty of the borrower;

The term of the pledged rights may not coincide with the term of the loan;

Monetary valuation of pledged rights and their subsequent implementation are difficult. Due to these shortcomings, as well as the lack of a legal framework on this issue, the use of this type of pledge in practice is not widely used.

3.1.6 Firm pledge

One of the most reliable ways to preserve the pledged property is a solid pledge. In practice, property transferred on a solid pledge is usually sealed and kept under the lock of the pledgee, but on the territory of the pledger, i.e. the pledgee himself has no right either to use it or to spend it. These conditions on the method of preservation of the pledged property are stipulated by the parties in the pledge agreement. Moreover, the mortgagor may be assigned additional obligations for the safety of the pledged property, including insurance of this property against the risks of its loss or damage.

The choice can be made between ordinary collateral and mortgage. In the case of a mortgage, the bank has special obligations and rights.

Bank Responsibilities:

Take measures to ensure the safety of the subject of pledge (mortgage), prevent its damage;

Insure the item to the extent of its value at the expense of the pledgor.

At the same time, under the agreement, the bank may acquire the right to use the subject of the pledge. Thus, property benefits should be used to cover the costs of maintaining the specified item or be credited.

Mortgage options are limited. This is due to the fact that this option involves the withdrawal of property from economic circulation. On the other hand, not every subject of pledge by its physical characteristics can become the subject of a pledge. Therefore, precious stones, gold and products made from it, currency values, art objects, some types of movable property (cars, etc.) fall into the pledge. In most cases, the collateral remains with the pledgers. But the pledgee has the right to check the documents and the actual presence of the subject of pledge, to require the pledger to take measures to preserve the property, etc.

3.1.7 Pledge of goods in circulation

With this method of pledge, the subject of pledge may remain in the possession, use and disposal of the pledgor. Usually, the pledgor has the right to replace some goods with other goods of the same kind, but in such a way that the total value of the goods does not become less than that specified in the contract. In other words, the subject of collateral here is not the goods per se, but the total value of the goods.

This type of collateral is most often used in lending to trade and supply and marketing enterprises. At the same time, the pledgor must keep a special record of leaving and entering in exchange for the retired pledged items. At the same time, it must be borne in mind that it is necessary to maintain their mandatory balance for each day.

One of the weak points of this type of pledge should be considered the lack of appropriate means of compensating the value of the pledged property in case of its loss. The design of the contract for the pledge of goods in circulation involves the replacement of sold goods with other goods purchased from the sale. At the same time, there is a risk that the pledgor, having sold the pledged goods, will not be able to purchase new ones instead, which would be covered by the pledge obligation.

3.1.8 Pledge of securities

Bonds, shares, certificates, promissory notes and other securities may be pledged.

These securities must be owned by the borrower. Only in this case, in accordance with the current legislation of the Russian Federation, securities can be alienated in favor of the bank, in case of default by the borrower of obligations.

Valuation of securities is made and fixed in the pledge agreement. To obtain a loan, the borrower enters into a loan agreement, which defines the conditions for issuing and repaying the loan, mutual obligations, the responsibility of each of the parties and accepted guarantees. At the same time, an agreement on pledge of securities owned by the borrower is concluded.

The pledged securities are transferred by the borrower to the bank for safekeeping. The return to the borrower from storage of securities accepted from him as a pledge is made by the bank only after the full repayment of the debt on the loan, interest for its use and penalties.

If the funds received during the sale of the mortgage exceed the amount of the borrower's obligations, the difference is returned to the borrower.

In order to obtain a loan, the borrower, in addition to the documents specified in the lending regulations, submits to the bank for consideration the securities under the pledge of which he wishes to receive a loan. The bank checks their authenticity and solvency. Registered securities make sure that the borrower is their owner.

Securities submitted for analysis are valued at face value.

Before issuing a loan against securities, the bank usually checks:

Authenticity and solvency of pledged securities;

The possibility of selling securities on the secondary market;

The solvency of the issuer;

Availability of securities quotations on the stock exchange.

The pledge of registered securities is issued to the bearer.

The amount of a loan issued against the security of securities is set at a certain percentage of their collateral value. This percentage is determined by the degree of risk for the bank for each security acting as collateral for the loan.

For promissory notes, deposit and savings certificates, bearer bonds and other unquoted securities, the degree of their liquidity must be determined.

There are two ways of lending secured by bills of exchange: accounting of bills and pledge of bills.

Accounting for bills is their purchase by the bank, as a result of which they are completely transferred to its disposal, and with them the right to demand payment from the drawers. Since the holder of the bill, who presented the bill of exchange to the bank for accounting, receives immediate payment on them, i.e. before the expiration of the payment term on the bill, then for him, in fact, this means receiving a loan from the bank.

Therefore, the accounting of bills by banks is one of the ways to provide a loan. For such an operation, the bank charges a percentage, which is called the discount rate, or discount.

Commercial banks do not take the risk of providing long-term loans against securities. In addition, they suffer from a shortage of long-term credit resources for these purposes. In this regard, at present, only short-term loans against securities are used in the practice of commercial banks.

The disadvantages of collateral securities are as follows:

Necessity and complexity of checking the authenticity of securities and establishing their owner;

The need to register the fact of pledge of securities in the issuer's register;

Instability of market prices for securities, as a result - a high risk of losses in the value of collateral;

Not all securities are freely circulating on the stock market (difficulty in selling the collateral).

Advantages of this type of collateral:

The maturity of the securities exceeds the maturity of the loan granted under their security; - papers are stored in the bank that issued the loan;

If the papers generate income, then it can, by agreement of the parties, be used to pay interest on the loan;

In the event of the transfer of the collateral into the ownership of the bank, the securities can be left for the investment portfolio of the bank.

3.1.9 Disadvantages of collateral

Despite all its advantages, the pledge also has significant disadvantages.

1. In most cases, he does not give the creditor confidence in the quick and complete satisfaction of his claims, since the foreclosure on the subject of pledge is most often carried out by a court decision. Then follows the implementation procedure, which requires significant funds and time.

2. Since the non-payers of loans are usually organizations registered as debtors on payments to the budget and extra-budgetary funds, if the funds in their current and current accounts are insufficient, the claims against the debtor are satisfied in the order determined by Article 855 of the Civil Code of the Russian Federation.

3. Quite often, the same property is pledged repeatedly, and each subsequent creditor-mortgagee does not know that his obligation is secured by the pledge of property already previously pledged by the pledge agreement, which adversely affects the repayment of the debt by the bank (to subsequent pledgees) .

4. Often the subject of pledge is illiquid goods in circulation, which, with a change in market conditions, are not always sold or sold at a loss by debtor organizations, which leads to an untimely repayment of the loan or even to its non-repayment.

A pledge is a way of securing obligations between a debtor (pledger) and a creditor (mortgagor). Collateral can be primary or secondary. In the first case, the pledge is transferred to the Bank as a pledge of the first order. If the borrower receives another loan (while refinancing the first loan) in another bank, the second stage pledge mechanism is triggered.

In this case, the contractual relationship between the first Bank and the second (re-mortgage) shall be concluded in writing, and the pledge shall be re-mortgaged to the second Bank. The creditor has a preferential right to pledge over other creditors. Relations between the parties are specified in the contract and are regulated by the Civil Code of the Russian Federation, the Federal Law "On Pledge", the Federal Law "On Mortgage".

Collateral is a set of conditions that gives the creditor confidence that the debt will be repaid. A loan can be secured by a pledge in the form of real estate, movable property and other highly liquid assets (securities, guarantees), as well as a surety. In addition to the basic collateral for a loan, in a number of countries there is a need to provide additional sources of income, because the credit risk for the lender is higher.

Similarities and differences between collateral and security

Thus, “Pledge” and “Security” are two different concepts. However, in the banking system there is a generalized expression - "collateral", which implies the entire system of contractual relations and obligations between the debtor and the creditor.

Loan security

There are types of loans in which a prerequisite is the provision of collateral. These include: commercial, mortgage, consumer, leasing, etc. For them, banks necessarily require a "hard" pledge. With car loans, student loans and other “light” loans, Banks generally accept purchased cars, inventory items, movable property, etc. as collateral. The pledger can be both the debtor himself and a third party, with his written permission.

Documentary component

After the loan is issued, a borrower package is formed. It contains collateral for a loan, agreements, and all other necessary documents in accordance with the “Lending Procedures”. Each unit of collateral in the Bank is accounted for as one off-balance sheet liability and is reflected in the corresponding accounting entry. In practice, the nominal value of 1 collateral is usually equal to 1 currency unit and is kept until the end of the loan term. At the end of the loan term, the off-balance sheet obligation is debited from the Bank's obligations and returned to the borrower against signature.

What happens if you don't pay the bank?

In case of non-fulfillment of obligations by the mortgagor specified in the agreement, the Bank delivers to the debtor a notice registered with the relevant authority on the commencement of the procedure for the enforcement of collateral to pay off the debt. If the debtor does not “respond” to the Bank's actions in pre-trial proceedings, the Bank has the right to satisfy the obligation by selling the collateral. The lawyer prepares a package of documents (correspondence between the debtor and the creditor), signed agreements are attached, the full amount of the debt is calculated and the case is submitted to the court. When the court decides in favor of the creditor, the debtor's property passes into the possession of the Bank and is sold at an open auction under the hammer. If the court decides in favor of the debtor, then this debtor can only be envied, because this is a very small percentage of all court cases.

Calculation of collateral and liabilities

In order to secure a loan as collateral, the loan officer first calculates the amount of the debtor's obligations:

loan amount + accrued % for the period according to the repayment schedule = loan obligations

Calculation example

To reinforce the above material, let's give 2 examples:

Example 1

You took out a loan:

As security for the loan, you provide a 3-room apartment with an approximate market price of 16,000,000 rubles. When calculating the collateral value of real estate, Banks apply a liquidity ratio of approximately 40-70% of the value of the property. In your case, let's say it will be 50%. Thus, your apartment will be evaluated by a Bank specialist in the amount of 8,000,000 rubles. Now let's calculate the amount of liabilities:

5,000,000 rubles * 11% * 5 years = 7,750,000 rubles.

Congratulations, your collateral fully covers your obligations and you have a great chance to get a loan.

Example 2

You receive a mortgage loan for the purchase of an apartment, the cost of which is 14,000,000 rubles.

The goal is to buy an apartment

In mortgage lending, the provision of the acquired real estate is required as collateral for the loan. What will be the calculation of collateral? Let's take a closer look here. The liquidity ratio will also be equal to 50%. Now look: If the purchased property costs 14,000,000 rubles, then after applying the coefficient, its assessed value as security will be equal to 7,000,000 rubles. And the amount of your obligations to the Bank is:

14,000,000 * 10% * 10 years = 28,000,000 rubles!

There was a difference of 21,000,000 rubles. In this case, you need to provide additional security for the difference of your obligations. However, one of the conditions for mortgage loans is own contribution to the acquired property. Usually it varies from 30% to 70%. I will explain this in detail in the next topic.

They do not think about what to offer as collateral. If there is no own housing, the purchased apartment is given as a pledge. If there is, a mortgage is taken on the security of existing real estate. Meanwhile, each software has its own characteristics.

First about the pros
The homeless buyer has no choice what to offer as collateral to the bank. But the owner who improves his living conditions must weigh all the pros and cons of options for pledging existing or purchased housing before the deal.

As Irina Ilyasova, director of the St. Petersburg branch of DeltaCredit Bank, notes, today the number of borrowers applying to the bank for a second mortgage is about 20%. Maxim Razumenko, the head of the Mortgage Group of the Stroitelny Trust company, states that there are borrowers who managed to pay off the mortgage three times and took out a loan for the fourth time.

Thus, the number of citizens facing the choice of the subject of collateral is growing year by year.

Let's start with the advantages of pledging an "old" apartment (such a loan is sometimes also called a pawnshop mortgage). As Irina Stupaeva, Head of Mortgage Lending Program Development at Nordea Bank, suggests, interest rates for products with such collateral are lower in a number of credit institutions.

True, the trend is that banks are gradually reducing the gap between rates for mortgages with different types of collateral. And this advantage will disappear in the future.

The second plus comes into force if the mortgage is taken to buy an apartment in the primary market. “The advantage of a mortgage secured by existing housing is that it allows you to buy any apartment, regardless of the accreditation of a particular object by a bank,” explains Alexei Novikov, head of the Est-a-Tet Mortgage Center.

Recall that banks lend to the purchase of primary property only in accredited new buildings. And developers, accredited in five or six banks, usually calm down.

Participation in the program of the Agency for Housing Mortgage Lending (AHML) "Moving" promises a certain benefit to borrowers. Under the terms of the offer, the borrower is given a delay of up to two years for the sale of old housing. And, by the way, this program is available in the product lines of the Agency's regional operators.

But most importantly - you do not need to save up for the first installment. And for advertising purposes, many banks call such a mortgage “mortgage without a down payment”.

If the bail itself is bad
However, citizens who own real estate and wish to pledge it as collateral may be disappointed. Banks accept as security not all objects of the secondary market.

So, none of the bankers will lend to objects included in the Khrushchev renovation program. The same applies to the city program for the development of the historical center of St. Petersburg. And in general, lenders will treat objects built more than 50 years ago with increased caution.

In addition, banks may reject an application due to a high percentage of depreciation of the building, the presence of unapproved redevelopments, or, for example, due to the fact that the floors in the house are wooden.

As a solution to the problem, it can be advised to apply with an application to several banks at once, since creditors have different requirements for the subject of collateral. “Our mortgage agency, on behalf of the borrower, simultaneously submits applications to an average of three banks,” says Oksana Vikulova, head of the mortgage lending department of the Ithaca Academy of Sciences. “The pluses are that approximately the same package of documents is required everywhere, and the client has the right to choose more suitable lending conditions.”

Price leapfrog
Another disadvantage of mortgages secured by existing housing is the limited amount received by the borrower.

“You need to have an apartment of a certain value available,” explains Alexey Novikov. “For example, if a buyer needs to take out a loan in the amount of 3 million rubles, then the value of the mortgaged property must be at least 3.6 million rubles.”

Simply put, usually lenders promise to allocate an amount close to 70% of the value of the mortgaged apartment. At the same time, a bank employee often evaluates an apartment at a discount. That is, in reality, the amount offered by the bank may be twice as low as expected.

In fairness, we will inform you that restrictions on the size of the loan are also present in banking products secured by the purchased apartment. It is not customary to lend the full cost of housing to a borrower from bankers. Part of the amount the client must pay the down payment. Usually it is 10 - 15%, but there are banks that set more stringent conditions for the loan applicant.

For example, Sergey Stolbunov, Head of the Mortgage Lending Department at Otkritie Bank, and Marina Spiridonova, Director of the Retail Sales Department at Promsvyazbank, told the BN that the upper loan threshold in their lending institutions is 80% of the cost of the property being purchased.

Accordingly, borrowers who have chosen a pawnshop loan should find out from banks in advance what maximum amount they can provide. At the same time, you can find resources on the Internet that allow you to evaluate real estate for free with an error of only 10%.

Without breaking boundaries
The next disadvantage of a mortgage with a pledge of an existing apartment, a number of experts consider the restrictions imposed by the bank on the use of the money received.

As Aleksey Novikov recalls, lending secured by existing housing is divided into two types. Target loan - when money is allocated directly for the purchase of residential real estate and their use must be documented. And non-target - when funds can be issued for any needs, while a report is not required.
But rates on non-targeted loans are higher, and borrowers are forced to choose an option that requires a report.

“The disadvantages of lending secured by existing housing include the fact that the actual use of credit funds is possible only for the purposes originally indicated by the borrower,” explains Lilia Chechelnitskaya, Mortgage Manager of the Petersburg branch of GLOBEXBANK. In case of failure to provide documents confirming the intended use of credit funds, the bank has the right to demand payment of a fine, and the loan will be recognized as non-targeted, which will lead to an increase in the interest rate.

On the other hand, this approach disciplines borrowers. Recall that today the average term for approval of a loan by a bank rarely exceeds three days. At the same time, for example, in the market of new buildings, the terms for booking an apartment, if the client wishes to use a mortgage, range from ten days to three weeks. It's easy to succeed.

Without fear and reproach
Some potential borrowers see the disadvantage of pawnshop mortgages in the higher burden of insurance costs. When lending secured by purchased housing for the period before registration of ownership, a number of banks require only life and health insurance. When lending secured by existing housing, three risks are usually insured (life and health; real estate; title - loss of ownership). Refusal of the package service is "punished" by a noticeable increase in the interest rate.

But not all applicants consider these payments to be meaningless expenses. After all, this, in fact, is the obligation of the insurer to provide financial assistance to the borrower in the event of adverse events in his life.

In addition, we recall that usually the title insurance rate is 0.15% of the loan amount. When insuring the life of the borrower, the tariff depends on age and gender (0.3-1.5%). And when insuring the subject of collateral (property), the figures also start at 0.15%. Thus, the additional burden for the Lombard mortgage borrower will be insignificant.

Finally, theoretically, the owner of a mortgage apartment may have the following problem. “If a client plans to sell mortgaged real estate to repay a loan, not every bank will agree to such actions,” Irina Stupaeva suggests. Let's clarify: the lender may oppose if the money from the sale of the "old" apartment is not enough to cover the loan. In other words, he will not want to leave a debt without collateral.

But in this case, you can remember about the new apartment. And, as Irina Zueva, managing director for mortgages at the VTB24 branch in St. Petersburg, explains, if necessary, the replacement of collateral in her bank is possible. In other words, many banks in such situations meet the borrowers halfway.

By the way, a borrower who takes a loan secured by existing real estate, even at the stage of signing the contract, must admit the possibility that he may need to sell the pledge. So, the owner is obliged to know in advance the position of the creditor.

Let's summarize: on closer examination, the problems typical for pawn mortgages are either not very significant or can be solved.

3.1.9 Disadvantages of collateral

Despite all its advantages, the pledge also has significant disadvantages.

1. In most cases, he does not give the creditor confidence in the quick and complete satisfaction of his claims, since the foreclosure on the subject of pledge is most often carried out by a court decision. Then follows the implementation procedure, which requires significant funds and time.

2. Since the non-payers of loans are usually organizations registered as debtors on payments to the budget and extra-budgetary funds, if the funds in their current and current accounts are insufficient, the claims against the debtor are satisfied in the order determined by Article 855 of the Civil Code of the Russian Federation.

3. Quite often, the same property is pledged repeatedly, and each subsequent creditor-mortgagee does not know that his obligation is secured by the pledge of property already previously pledged by the pledge agreement, which adversely affects the repayment of the debt by the bank (to subsequent pledgees) .

4. Often the subject of pledge is illiquid goods in circulation, which, with a change in market conditions, are not always sold or sold at a loss by debtor organizations, which leads to an untimely repayment of the loan or even to its non-repayment.

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1. Requirements for immovable property that is the subject of pledge. The subject of pledge may be real estate, for the acquisition (construction) of which a loan was provided, or other residential premises ...

Problematic issues of secured lending

By the scale of use of bank loans by commercial organizations and citizens, one can largely judge the development and stability of the country's economy. It's no secret that banks are stable if depositors' money is reliably protected, i.e....

Calculation of the value of collateral when applying for a mortgage

Under Mortgage Legislation The main legislation regulating mortgages in Russia, as well as laws related to mortgage alternatives (ZhNK and credit cooperatives)...

Collateral risks

The essence of a pledge is to provide the creditor - the pledgee with the right to priority (with some exceptions established by law) satisfaction of his claim at the expense of the pledged property. Banking: textbook. Under. Ed. IN...

Collateral risks

Pledge leaving the subject of pledge with the pledgee can act in two main forms: * solid pledge; * pledge of rights...

Forms of ensuring the repayment of a loan, their scope

Pledge is a method of securing an obligation, in which the pledgee acquires the right, in case of default by the debtor of the obligation, to receive satisfaction at the expense of the pledged property, predominantly over other creditors ...

· Legislation on pledge is not always effective, and the very procedure for registering a pledge is time-consuming and costly (labor-intensive - time costs, monetary costs for notarial registration and state registration, costs for property insurance - the subject of pledge).

· There is no clarity on the possibility of concluding a preliminary pledge agreement. Someone may say that the provisions of Article 429 of the Civil Code of the Russian Federation () do not apply to agreements on ways to ensure the fulfillment of obligations. But cases cannot be ruled out when the will of the parties in relation to the main obligation that will arise in the future, expressed in the form of a preliminary contract, will need interim measures. The conclusion of a preliminary pledge agreement not only does not contradict the provisions contained in Article 429 of the Civil Code of the Russian Federation and Chapter 23 of the Civil Code of the Russian Federation, but also corresponds to the meaning of securing the fulfillment of obligations.

· The procedure for foreclosing a pledged property right is not clearly defined.

Based on the requirements of paragraph 3 of Chapter 23 of the Civil Code of the Russian Federation, in particular Article 349 of the Civil Code of the Russian Federation and Article 350 of the Civil Code of the Russian Federation, the satisfaction of the creditor's claim under the obligation secured by the pledge is carried out by selling the subject of pledge at a public auction in the manner prescribed by civil procedural legislation. Along with this, paragraph 2 of Article 63 of the Federal Law of July 21, 1997 No. 119-FZ “On Enforcement Proceedings” refers to the procedure for conducting auctions provided for by the Civil Code of the Russian Federation.

· Significant fee for notarial certification of mortgage agreements (1.5 percent of the transaction amount).

· Significant costs of paying the insurance premium when insuring the property transferred to (5 - 12% of the sum insured).

· Cases of repeated re-pledge of the same property are not ruled out in the absence of information from subsequent pledgees about the existing encumbrances of the subject of pledge.

· The problem is in the practice of applying the norm contained in paragraph 3 of Article 340 of the Civil Code of the Russian Federation.

Mortgage of a building or structure is allowed only with simultaneous mortgage under the same agreement of the land plot on which this building or structure is located, or of a part of this plot that functionally provides the pledged object, or of the right to lease this plot or its corresponding part belonging to the pledgor. But the formal application of this provision of the Civil Code could lead to the recognition of most mortgage agreements as void transactions, since as a result of privatization, participants in the property turnover were formed, who are the owners of buildings and structures, who, in search of credit resources, pledge their real estate, despite the fact that they are not land owners. But such actions cannot be recognized as unlawful, since, by virtue of Article 209 of the Civil Code of the Russian Federation, they have the right, as owners, to dispose of the relevant real estate objects at their own discretion, including by pledging them.

Judicial practice on this issue boils down to the fact that this rule (clause 3 of Article 340 of the Civil Code of the Russian Federation) is to be applied only in cases where the person acting as the pledger of the building or structure is the owner or tenant of the relevant land plot. If in such situations, under a mortgage agreement, only a building or structure is pledged, and the land plot or the right to lease it is not the subject of pledge, such an agreement should be considered a void transaction (Article 168 of the Civil Code of the Russian Federation). 2001 No. 61 "Review of the practice of application of land legislation by arbitration courts" - paragraph 4; Resolution of the Plenum of the Supreme Court of the Russian Federation No. 6, Plenum of the Supreme Arbitration Court of the Russian Federation No. 8 dated July 1, 1996 “On Certain Issues Related to the Application of Part One of the Civil Code of the Russian Federation” - paragraph 45.

In other cases, when the pledger of the building or structure is not the owner or tenant of the land plot, the mortgage agreement cannot be considered inconsistent with the law on the basis of paragraph 3 of Article 340 of the Civil Code of the Russian Federation. The rights of the mortgagor, and in the event of foreclosure on a building or structure, the rights of the buyer to the land plot must be determined based on the provision of Article 37 of the Land Code of the Russian Federation, according to which, when transferring ownership of a building, structure or transferring them to other legal entities or citizens Together with these objects, the right to use land plots passes.

Foreclosure on pledged property.

Foreclosure on the subject of pledge is carried out by a court decision. However, litigation can be avoided if you use paragraphs 1 and 2 of Article 349 of the Civil Code of the Russian Federation.

"one. Claims of the pledge holder (creditor) are satisfied from the value of the pledged immovable property by a court decision.

Satisfaction of the pledgee's claim at the expense of the pledged immovable property without recourse to the court is allowed on the basis of a notarized agreement between the pledgee and the pledgor, concluded after the grounds for foreclosure on the subject of pledge arose. Such an agreement may be declared invalid by a court at the suit of a person whose rights are violated by such an agreement.

2. Claims of the pledgee shall be satisfied at the expense of pledged movable property by a court decision, unless otherwise provided by agreement between the pledger and the pledgee. However, the subject of pledge transferred to the pledgee may be levied in accordance with the procedure established by the pledge agreement, unless otherwise established by law.

3. Execution on the subject of pledge may be levied only by a court decision in cases where:

1) the consent or permission of another person or body was required to conclude a pledge agreement;

2) the subject of pledge is property that has a significant historical, artistic or other cultural value for society;

3) the pledgor is absent and it is impossible to establish his location”.

That is, in fact, paragraphs 1 and 2 of this article provide for exceptions to the general rule. The first exception is that if the parties to the agreement have grounds for foreclosure on the subject of pledge, they can do without a court decision if they draw up an agreement on satisfaction of claims at the expense of the pledged property without applying to the judicial authorities. This agreement must be notarized without fail.

And the second point, which makes it possible to do without a judicial procedure when solving this problem, is when the agreement on the pledge of movable property initially provides for the procedure for foreclosing the pledged property, without the help of the court.

It should be noted that the possibility of foreclosing the subject of collateral without going to court, provided for by civil law, is undoubtedly convenient and meets the interests of creditors, but at the moment it is still not sufficiently regulated. For example, in what form is the specified agreement drawn up and during which time after the grounds for foreclosure arise?

In all other cases (with the exception of those directly listed in paragraph 3 of Article 349 of the Civil Code of the Russian Federation), the pledgee is obliged to apply to the judicial authority if there are grounds for foreclosure on the subject of pledge. Compliance with the procedure for foreclosing the subject of pledge is an essential condition for its implementation.

Sale of mortgaged property.

The rules for the sale of pledged property are established by Article 350 of the Civil Code of the Russian Federation, according to which the sale (sale) of the pledge, which is foreclosed, is carried out by selling at a public auction in the manner prescribed by the procedural legislation. In this case, the pledged property subject to foreclosure is put up for auction at the initial price determined either by a court decision (if the pledged property is foreclosed through the court) or by agreement between the pledgor and the pledgee.

But the auction can be declared invalid. In this case, the Civil Code of the Russian Federation allows the pledgee to retain the subject of pledge with the right to set off against the purchase price of his claims secured by the pledge. The rules of sale and purchase apply to such an agreement. In the event that the pledgee does not want to take advantage of this opportunity, then repeated auctions are announced for the subject of pledge.

If the second auction is declared invalid, then the pledgee has the right to keep the pledged property, valuing it in total by no more than 10% lower than the initial sale price at the second auction.

Note!

If the pledgee fails to use the right to retain the subject of pledge within one month from the date of the announcement of repeated auctions as failed, the pledge agreement shall be terminated.

We considered the case when the pledged property put up for auction was not sold. In the event that the subject of pledge is sold at auction, then one should refer to paragraphs 5 and 6 of Article 350 of the Civil Code of the Russian Federation, which provide for options when the amount received from the sale of the pledged property is sufficient to cover the creditor's claim secured by the pledge, and when the funds received are not enough.

According to paragraph 5 of Article 350 of the Civil Code of the Russian Federation:

“If the amount received from the sale of the pledged property is insufficient to cover the claim of the pledgee, he has the right, unless otherwise specified in the law or the contract, to receive the missing amount from the other property of the debtor, without using the advantage based on the pledge.”

In other words, if the money received for the subject of pledge is not enough to fully repay the main obligation of the debtor, then the creditor has the right to receive the missing amount from the other property of the debtor. According to paragraph 6 of Article 350 of the Civil Code of the Russian Federation:

"If the amount received from the sale of the pledged property exceeds the amount of the pledgee's claim secured by the pledge, the difference shall be returned to the pledgor."

Note!

From January 1, 2006, Law No. 119-FZ comes into force, which determines, for the purposes of VAT taxation, the procedure for determining the tax base when a pledgee sells an unclaimed pledge belonging to the pledgor.

You can find more details about some of the problems of collateral and their causes in the book of CJSC “BKR-Intercom-Audit” “Borrowed and credit funds. Pledge and surety".