Foreclosure of mortgage maternity capital. Court: fraud with maternity capital, maternity capital - reasons for fraud, controversial issues of using maternity capital funds. Debt collection methods
Federal Law dated December 29, 2006 N 256-FZ (as amended on July 3, 2016) “On additional measures of state support for families with children,” or more simply, the Law on Maternity Capital, does not provide many options for its use. And, naturally, the most popular is the use of maternity capital to improve housing conditions.
But since for most regions of Russia maternity capital funds are not enough to buy housing for a comfortable family life, it is impossible to do without borrowed funds or installment payments, and, accordingly, a mortgage. Maternity capital funds can be used to pay off obligations to various credit institutions, even if these obligations arise before acquiring the right to additional measures of state support.
Equity funds can also be used as a down payment on a home loan or loan. However, it should be borne in mind that if you expect to use maternity capital as a down payment when applying for a mortgage, but without your own accumulated funds, this may negatively affect the decision of bank employees to provide you with a loan. Since the lack of savings means that your income is only enough for current expenses. It is also necessary to remember that when using maternity capital funds, the lending conditions are dictated by the bank. Not every bank accepts maternity capital funds. If there is a special lending program using maternity capital, most often the interest rate for using borrowed funds will be higher. The bank can also set restrictions on the type of housing purchased: only new buildings or, conversely, only secondary housing.
The loan can be issued to one of the spouses individually, or both spouses act as co-borrowers on loan obligations and at the same time as owners of the purchased housing. It is not worth taking out a loan (mortgage) or involving other relatives as co-borrowers. In this case, maternity capital funds cannot be used.
WHERE TO GET A HOUSING LOAN?
It should be borne in mind that the Maternity Capital Law does not limit the status of the organization from which you receive a loan to improve your housing conditions. In other words, it can’t just be banks. And if the department of the Pension Fund of the Russian Federation, to which you applied to use maternity capital, refused you, then feel free to go to court.
So, for example, in civil case No. 2-1562/2016, considered by the Krasnogorsk District Court of Kamensk-Uralsky, citizen N.Z.A. filed a claim against the Office of the Pension Fund of the Russian Federation to cancel the decision to refuse to satisfy the application for the disposal of maternity capital funds. Plaintiff N.Z.A., having received a certificate for maternity capital in accordance with the Law at the birth of her second child, decided to use it to buy a house worth 550,000 rubles. She took this amount under a loan agreement from the company where she worked. I expected that the main part of this loan would be repaid with the help of maternity capital, the rest - with my own funds. After registering the purchase and sale of the house, she contacted the department of the Pension Fund of the Russian Federation with an application to send maternity capital funds to repay the existing loan issued for the purchase of a residential building. But her application was denied, citing the fact that she received the funds under the loan agreement in cash at the company’s cash desk, after which she transferred them to the seller. The court, having examined the available materials of the case, the claim of citizen N.Z.A. satisfied, the refusal to satisfy the application for the use of maternity capital funds to repay a loan issued at the plaintiff’s work was declared illegal.
OBLIGATION TO ALLOCATE SHARES IN THE ACQUIRED
RESIDENTIAL PREMISES FOR MINOR CHILDREN
When purchasing or constructing housing using maternity capital funds, you should remember the need to register ownership of the purchased housing in the shared ownership of all family members, including children. The Law does not limit the size of each share; this remains at the discretion of the certificate holder and his family members. When completing a purchase and sale transaction in the case of purchasing housing with a mortgage, you will be required to provide a notarial undertaking to allocate shares to family members. After repaying the loan allocated for the purchase or construction of housing and removing the encumbrance in the form of a mortgage, the allocation of shares is mandatory. When applying for a mortgage loan using maternity capital as a down payment, it is possible to register ownership of all family members already during the purchase and sale transaction. In this case, you will not be required to provide a notarized obligation to allocate shares.
In civil case No. 2-327/2016, considered by the Safakulevsky District Court of the Kurgan Region, the prosecutor of the Safakulevsky district filed a claim in the interests of minors to impose the obligation to register residential premises as common property. The court found that citizen B.A.V. After the birth of her second child, she acquired the right to maternity capital, which she used to purchase residential premises. But after the mortgage restriction was lifted, she did not allocate shares in the purchased housing to family members, including minor children, within the prescribed period. The court granted the prosecutor's claim and ordered B.A.V. allocate shares in the purchased apartment within a month.
If the obligation to allocate shares to children is not fulfilled, in addition to being forced to do so in court, a possible consequence is the recognition of the purchase and sale transaction of residential premises as invalid with the condition of bilateral restitution. At the same time, this also implies a return to the Pension Fund of the Russian Federation of the amount spent from the mother’s certificate for the purchase of housing.
This happened, for example, in civil case No. 2-408/2016, considered by the Slavyansky City Court of the Krasnodar Territory on the claim of the head of the department of the Pension Fund of the Russian Federation for the Krasnodar Territory in the Slavyansky district against L.V.V. on the collection of maternity capital funds. The purchase and sale transaction, for which maternity capital funds were used, was declared void, and bilateral restitution was established, in pursuance of which the funds paid for the residential building were returned to the defendant L.V.V. The court ordered defendant L.V.V. return funds in the amount of maternity capital to the Pension Fund of the Russian Federation, because the funds were spent for other purposes and there was no improvement in living conditions.
The obligation to allocate shares in the purchased residential premises applies only to children with whom there are official parental ties (blood, adoption). For example, a woman married a man who has a child from his first marriage. This marriage produces two common children. When receiving a certificate for maternity capital, if it is used to improve living conditions, the owner of the certificate has no obligation to allocate shares to her husband’s child from his first marriage, even if he lives together with the child of his husband from his first marriage.
The Federal Law provides for a six-month period for fulfilling the obligation to allocate shares of residential premises to the ownership of minor children from the moment of full repayment of the loan and removal of the encumbrance in the form of a mortgage. Please note that shares will need to be allocated to all children born to the owner of the maternal certificate at the time of allocation. If you purchased an apartment using maternity capital, and later another child was born, then when the mortgage loan is repaid and the encumbrance is removed, all children are given shares. In the future, to sell such housing, you will need the consent of the guardianship and trusteeship authorities, who will ensure that in other purchased housing, minor children are allocated shares of living space no smaller in area than in those purchased using maternity capital.
REMOVAL OF ENCORPORATION THROUGH COURT
If residential premises are purchased with borrowed funds from a bank or other credit organization, and then repaid, including using maternity capital funds, then removing the encumbrance in the form of a mortgage is quite simple. The bank issues you a mortgage, a certificate confirming the closure of the loan agreement, you make changes through the branches of Rosreestr and receive new certificates of ownership without encumbrance. But sometimes, even after paying off the obligations that arose during the purchase of a home, removing the encumbrance in the form of a mortgage can cause some difficulties, for example, the real estate seller simply does not want to apply for the removal of the encumbrance, has left for a long time in another region, contact with him has been lost, or the person has died . Then it is necessary to apply for the removal of the mortgage encumbrance by force of law by a court decision.
Citizens L.V.G. and L.T.N. filed a claim against K.A.E. (case No. 2-418/2016 was considered by the Beloyarsky District Court of the Sverdlovsk Region). A lawsuit was filed to terminate the mortgage encumbrance. Citizens L.V.G. and L.T.N. purchased from defendant K.A.E. land plot and residential building. Their total cost was 545,000 rubles. Part of the funds in the amount of 186,000 rubles was transferred to the defendant upon concluding the sale and purchase agreement. The rest was to be transferred to the seller at the expense of maternity capital. To do this, when registering the transfer of ownership under the purchase and sale agreement, a restriction of the right in the form of a mortgage was registered by force of law. After the plaintiff L.T.N. applied to the Pension Fund of the Russian Federation with an application to transfer funds to the seller’s account. The application was granted and the funds were transferred. Thus, the obligations assumed by the buyers when concluding the purchase and sale agreement were fulfilled. The funds for the purchased housing have been transferred in full. However, defendant K.A.E. refused to submit an application to remove the mortgage encumbrance. The restriction of property rights in the form of a mortgage was terminated by force of law by a court decision.
MORTGAGE USING MATERNITY CAPITAL
AFTER DIVORCE
Divorce itself brings a lot of troubles and challenges that need to be resolved. If spouses own housing acquired jointly, the question of its division arises. If the apartment was purchased with a mortgage, dividing it will not be easy. Using maternity capital to purchase housing only adds problems.
Of course, the ideal is to pay off the mortgage and then divide the marital property. But most often this is not possible.
For property acquired with borrowed funds, including housing with a mortgage, the same rules apply as for property acquired without loans. That is, it should be divided in half. Many people wonder: what will happen to maternity capital? Is it possible to divide this money, since it was also acquired during the period the spouses lived together? First of all, it is worth remembering that maternity capital is not the property of the spouses. Article 34 of the Family Code of the Russian Federation defines the concept of common property of spouses. This indeed includes all material assets purchased or received by the husband and wife before the day of the official divorce, including cash payments, but only if they have no intended purpose. And since maternity capital funds have a purpose defined in the Law, they are not subject to division after a divorce. Only the owner of the certificate will be able to dispose of capital funds, regardless of whether he is married or not. The main purpose of using a maternity capital certificate is to support minor children, and not their parents.
But if capital funds have already been spent on the purchase of housing, it will have to be divided. Pursuant to the requirements of the Law, housing purchased using maternity capital funds is registered in the common shared ownership of all family members, including children. Therefore, during a divorce, spouses can only claim their share, even if it has not yet been allocated.
Civil case No. 2-529/2016 was considered by the Ivanteevsky City Court of the Moscow Region. Plaintiff K.I.G. filed a lawsuit against S.D.V.’s ex-husband. on the division of jointly acquired property, including residential premises acquired with borrowed funds and the use of maternity capital. At the time of the divorce, the mortgage had not been repaid, and shares were not allocated to minor children. The plaintiff asks the court to recognize her right to 4/5 of the living space, since three minor children remain to live with her. The defendant is asked to allocate 1/5 of the living space. The court, taking into account the fact that according to the legislation of the Russian Federation, in residential premises acquired using maternity capital, it is necessary to allocate shares not only to spouses, but also to minor children, decided to allocate equal shares to all family members - 1/5 each.
However, it is possible to split the loan agreement. Loan obligations are considered jointly acquired and are divided in half between the former spouses.
If we look at the previous judicial example, it turns out that after the division of property, the former spouses remain with a 1/5 share in the ownership of residential premises and 1/2 in credit obligations (mortgage).
If, nevertheless, you do not want to live with your ex-spouse in the same apartment, as well as pay half of the mortgage without living in this residential premises, you have only two options:
– agree with your ex-spouse on the purchase of his share, or, as an option, offsetting the mortgage debt and the share in the apartment;
– sale of an apartment and subsequent division of funds. But this option is very problematic, since in this case the transaction for the sale of the collateral will be carried out by the bank. Be prepared that you will lose from 20 to 30% in price, and you will receive even less in your hands, since your debt to the bank will be deducted from the sales amount. You can, of course, try to sell the apartment before the mortgage encumbrance is removed from it, but this will require permission from the creditor bank, the Pension Fund of the Russian Federation and the guardianship authorities.
After studying the issue of the possibility of using maternity capital funds to improve housing conditions using a mortgage, one conclusion arises. The most popular way of managing funds received as state support for families with children is not the simplest, has many pitfalls and requires careful study and thought. But if we take into account all the nuances, including those highlighted in this article, then such use of maternity capital funds really helps many families improve their living conditions and provides a real guarantee of providing, albeit in small shares, the right of ownership of housing for minor citizens of the country.
Determination of the Investigative Committee for Civil Cases of the Supreme Court of the Russian Federation dated August 6, 2013 No. 24-KG13-4 The case of foreclosure on mortgaged property is sent for a new consideration, since in the event of a transaction for the alienation of residential premises in which minor children live, it is necessary to check whether the rights of minor children will be violated by such a transaction
The Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation, consisting of:
presiding Gorshkov V.V.,
judges Getman E.S., Astashova S.V.
considered at a court hearing a civil case on the claim of KIT Finance Capital LLC against F.R. Emtyl, Yu.M. Emtyl. about foreclosure on property, collection of the amount of debt, interest and penalties, according to the counterclaim of Emtyl F.R., Emtyl Yu.M. to KIT Finance Capital LLC on reinstating the statute of limitations, invalidating the mortgage agreement for a house with a plot of land, recognizing the ownership of a 1/2 share of a residential building and a plot of land for Emtyl F.R. as a marital share and a decrease in the share of property of Emtyl Yu.M. up to 1/2 share
on the cassation appeal of the representative of KIT Finance Capital LLC Lazareva N.V. on the decision of the Takhtamukaisky District Court of the Republic of Adygea dated May 18, 2012 and the appeal ruling of the judicial panel for civil cases of the Supreme Court of the Republic of Adygea dated August 17, 2012.
Having heard the report of the judge of the Supreme Court of the Russian Federation, Getman E.S., and having listened to the explanations of the representative of KIT Finance Capital LLC, Lazareva N.V., who supported the arguments of the cassation appeal, the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation established:
KIT Finance Capital LLC filed a lawsuit against Emtyl F.R., Emtyl Yu.M. on foreclosure of property, collection of debt, interest and penalties.
In support of the claim, she indicated that on October 24, 2007, a loan agreement was concluded between OJSC KIT Finance Investment Bank and the defendants, according to which the bank provided borrowers with a loan in the amount of... rubles. for personal purposes for a period of 180 months. To secure the fulfillment of obligations, a residential building and a land plot with a total area of 785 sq.m., located at the address: Republic... Under the loan agreement, there were six cases of borrowers violating the terms of payment of monthly payments. At the request dated June 18, 2009 for early fulfillment of obligations under the loan agreement, the debt was not repaid by the defendants.
On December 16, 2010, in accordance with the purchase and sale agreement for mortgages securing the fulfillment of loan obligations, all rights under the loan agreement were transferred from KIT Finance Investment Bank OJSC to KIT Finance Capital LLC.
The plaintiff asked the court to collect jointly and severally from the defendants the debt in the amount of... rubles, to foreclose on the subject of the mortgage - a residential building and a land plot with a total area of 785 sq.m., located at the specified address, to determine the initial sale price of the mortgaged property in the amount of... . rub., as well as to recover the costs of paying the state duty in the amount of... rub.
Defendants Emtyl F.R. and Emtyl Yu.M. filed a counterclaim against KIT Finance Capital LLC to invalidate the agreement on the mortgage of a house with a plot of land, recognizing the ownership rights of F.R. Emtyl. by 1/2 share of a residential building and land plot as a marital share and a reduction in the share of Emtyl Yu.M. in the house up to 1/2 share.
In support of the counterclaim, they indicated that the residential building is the only housing for them and their minor children, and therefore, in order to conclude a pledge agreement, the consent of the guardianship and trusteeship authority was required, which was not received. The specified property is jointly acquired, as a result of which the share of Emtyl F.R. it must be at least half. They asked to recognize the 1/2 share of the house and land plot as the marital share of Emtyl F.R., and also to invalidate the mortgage agreement, restoring the statute of limitations.
By the decision of the Takhtamukaisky District Court of the Republic of Adygea dated May 18, 2012, the defendants in favor of the plaintiff were jointly and severally recovered the debt on the loan, interest on the use of the loan and penalties in the amount of... rubles. ... cop., as well as the cost of paying state duty in the amount of... rub. By the same court decision, a residential building with outbuildings and a plot of land located at the address: Republic... were recognized as the joint property of the spouses Emtyl F.R. and Emtylya Yu.M. For Emtyl F.R. ownership of 1/2 share of the specified property was recognized; share of Emtyl Yu.M. in this property is reduced. Emtyl F.R. and Emtyl Yu.M. The statute of limitations was restored for challenging the mortgage agreement for a residential building with a plot of land, and the mortgage agreement was declared invalid. The claim of KIT Finance Capital LLC to foreclose on the subject of a mortgage - a residential building and a land plot - was denied.
By the appeal ruling of the judicial panel for civil cases of the Supreme Court of the Republic of Adygea dated August 17, 2012, the court decision regarding the recognition of a residential building with outbuildings as the joint property of the defendants, recognition of the ownership rights of Emyl F.R. for 1/2 of the share of jointly acquired property in the form of a residential building and a land plot, restoration of the statute of limitations for challenging the mortgage agreement, invalidation of the mortgage agreement or other inseparable improvement was canceled and a new decision was made in the canceled part, which rejected the counterclaim.
The rest of the court's decision was left unchanged.
In the cassation appeal of the representative of KIT Finance Capital LLC Lazareva N.V. the question of canceling the court decisions taken in the case was raised.
By the ruling of the judge of the Supreme Court of the Russian Federation dated June 21, 2013, the cassation appeal with the case was transferred for consideration at a court session of the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation.
Having checked the case materials and discussed the arguments of the cassation appeal, the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation finds that there are grounds for canceling the court decisions taken in the case.
In accordance with Article 387 of the Civil Procedure Code of the Russian Federation, the grounds for canceling or changing court decisions in cassation are significant violations of substantive law or procedural law that influenced the outcome of the case and without eliminating which it is impossible to restore and protect violated rights, freedoms and legal interests, as well as protection of public interests protected by law.
When issuing the contested court decisions, such violations of substantive law were committed by the courts of both instances.
The court established and from the case materials that between OJSC KIT Finance Investment Bank (creditor) and Emtyl Yu.M. and Emtyl F.R. (borrowers) entered into a loan agreement dated October 24, 2007 No. 04-1/19863 KI (hereinafter referred to as the loan agreement), under the terms of which the borrowers received a loan from the bank in the amount of... rubles. at 14% per annum for a period of 180 months for the purpose of financing personal needs (vol. 1, pp. 11-29).
On October 24, 2007, an agreement was concluded between the lender and the borrowers on the mortgage of a house with a plot of land, according to which Emtyl Yu.M. to ensure the obligations assumed by him, as well as Emtyl F.R. under a loan agreement, he pledged a residential house located on a plot of land located at the address: Republic... (vol. 1, pp. 43-49).
Cash in the amount... rub. received by Emtyl Yu.M. by transferring funds to the borrower’s account (vol. 1, sheet 30).
Under the terms of the loan agreement, borrowers accepted the obligation to return the funds received in full and pay all interest accrued by the lender for the entire actual period of using the loan (clause 4.1.1), while repayment of the loan and payment of interest accrued for using the loan is carried out by paying monthly payments (clause 3.3).
Clause 4.4.1 of the loan agreement provides that the lender has the right to demand full early fulfillment of obligations under the loan agreement by submitting a written request for early repayment, in particular, if the borrowers are late in making the next loan payment for more than 30 days, or there are delays in execution obligations to make monthly payments more than three times within 12 months, even if each delay is minor.
The rights of the original mortgagee under the mortgage of KIT Finance Investment Bank OJSC were transferred to KIT Finance Capital LLC on the basis of the mortgage sale and purchase agreement dated December 16, 2010 (vol. 2, pp. 9-21)
Resolving the dispute and satisfying the claims of KIT Finance Capital LLC regarding the collection of debt on the loan, interest on the loan and penalties in the amount of... rub. ... cop., the court of first instance proceeded from the fact that the defendants in the initial claim did not properly fulfill their obligations under the loan agreement, they were late in making monthly payments more than three times within 12 months and did not fulfill the requirement for early repayment loan. In reducing the amount of the penalty to be recovered from the defendants, the court was guided by the provisions of Article 333 of the Civil Code of the Russian Federation and proceeded from the fact that the penalty was clearly disproportionate to the consequences of the violation of the obligation.
In refusing to satisfy the claim of KIT Finance Capital LLC regarding the foreclosure of the mortgaged property, the court referred to the fact that the loan was provided for the purpose of financing the personal needs of the borrowers, and not for the acquisition or construction of a residential building.
Satisfying the counterclaim of Emtyl Yu.M. and Emtyl F.R., the court indicated that during the marriage the defendants made significant improvements to the residential building donated to Emtyl Yu.M., when concluding the mortgage agreement they were misled about its nature, the consent of Emtyl’s wife was not obtained for the conclusion of the mortgage agreement Yu.M. - Emtyl F.R., as well as the consent of the guardianship and trusteeship authority. The court also indicated that there were grounds for reinstating the statute of limitations for Yu.M. Emtyl. and Emtyl F.R. to challenge the mortgage agreement.
Canceling the decision of the court of first instance in terms of satisfying the counterclaim and refusing to satisfy it in this part, the judicial panel for civil cases of the Supreme Court of the Republic of Adygea referred to the fact that Emtyl F.R. no evidence was presented to prove that she could not bring a claim to court within the statute of limitations. In the remaining part, the appellate court left the court's decision unchanged, indicating that by virtue of paragraph 2 of Article 20, Article 292 (paragraph 4) of the Civil Code of the Russian Federation and the resolution of the Constitutional Court of the Russian Federation of June 8, 2010 No. 13-P “On case on checking the constitutionality of paragraph 4 of Article 292 of the Civil Code of the Russian Federation in connection with the complaint of V.V. Chadaeva”, foreclosure on residential premises, which are the only place for minors to live, will violate their rights and interests protected by law.
The Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation cannot agree with the court decisions made due to the following.
The Constitution of the Russian Federation guarantees everyone freedom of economic activity, including freedom of contract, the right to own property, own, use and dispose of it, both individually and jointly with other persons, recognition and protection of these rights and freedoms, including judicial protection implemented by on the basis of equality of all before the law and the court (Article 8; Article 19, parts 1 and 2; Article 35, parts 1 and 2; Article 45, part 1; Article 46, part 1).
From the above-mentioned provisions of the Constitution of the Russian Federation, which predetermine the legal status of participants in civil transactions, including when carrying out transactions with real estate, in conjunction with its Articles 15 (Part 2) and 17 (Part 3), follows the requirement for the need to correlate the right of ownership of a person with the right and the freedoms of other persons, which means, inter alia, that the owner has the right, at his own discretion, to take any actions in relation to his property, if they do not contradict the law and other legal acts and do not violate the rights and legitimate interests of other persons.
The generally recognized principles of inviolability and freedom of property, freedom of contract and equality of all owners as participants in civil transactions, expressed in the Constitution of the Russian Federation, determine the freedom of ownership, use and disposal of property, including the opportunity to alienate one’s property into the ownership of other persons, to transfer to them, while remaining the owner, ownership rights, use and disposal of property. Accordingly, it is also assumed that the owner can secure his obligations under civil law transactions at the expense of his property, including those related to real estate.
Paragraph 1 of Article 2 of the Federal Law of July 16, 1998 No. 102-FZ “On Mortgage (Pledge of Real Estate)” (hereinafter referred to as the Mortgage Law) provides that a mortgage can be established to secure an obligation under a credit agreement, loan agreement or other obligations, including obligations based on purchase and sale, lease, contract, other agreement, damage, unless otherwise provided by federal law.
At the same time, Article 5 of the Law on Mortgage states that under a mortgage agreement the real estate specified in paragraph 1 of Article 130 of the Civil Code of the Russian Federation, the rights to which are registered in the manner established for state registration of rights to real estate and transactions with them, including residential buildings, apartments and parts of residential buildings and apartments, consisting of one or more isolated rooms.
By virtue of paragraph 2 of Article 6 of the Law on Mortgage, it is not permitted to mortgage property withdrawn from circulation, property on which, in accordance with federal law, cannot be foreclosed on, as well as property in respect of which mandatory privatization or privatization is provided for in accordance with the procedure established by federal law. which is prohibited.
In accordance with paragraph 1 of Article 50 of the Mortgage Law, the mortgagee has the right to foreclose on the property pledged under the mortgage agreement in order to satisfy, at the expense of this property, the requirements specified in Articles 3 and 4 of the Mortgage Law caused by non-fulfillment or improper fulfillment of the obligation secured by the mortgage, in in particular, non-payment or untimely payment of the debt amount in full or in part, unless otherwise provided by the agreement.
According to Article 79 of the Federal Law of October 2, 2007 No. 229-FZ “On Enforcement Proceedings”, foreclosure cannot be applied to property owned by a debtor-citizen, the list of which is established by the Civil Procedure Code of the Russian Federation.
In accordance with Part 1 of Article 446 of the Civil Procedure Code of the Russian Federation (as amended in force at the time of concluding the mortgage agreement), foreclosure under executive documents cannot be applied to the following property owned by the debtor citizen: residential premises (parts thereof), if for the citizen-debtor and members of his family living together in the premises owned, it is the only premises suitable for permanent residence, with the exception of property if it is the subject of a mortgage and can be foreclosed on in accordance with the legislation on mortgages.
According to Article 78 (clauses 1 and 2) of the Law on Mortgage, foreclosure by the mortgagee on a mortgaged residential building or apartment and the sale of this property are grounds for termination of the right to use them by the mortgagor and any other persons living in such residential building or apartment, provided that such residential house or apartment was pledged under a mortgage agreement or under a mortgage by force of law to ensure the repayment of a loan or targeted loan provided by a bank or other credit organization or other legal entity for the acquisition or construction of such or other residential houses or apartments, their major repairs or other inseparable improvement, as well as for the repayment of a previously granted credit or loan for the purchase or construction of a residential building or apartment.
Foreclosing on a mortgaged residential building or apartment is possible both in court and out of court in compliance with the rules established by Chapter IX of the said Federal Law.
Thus, from the content of these provisions in their interrelation it follows that foreclosure on a mortgaged apartment is possible both in the case when such an apartment is mortgaged under a mortgage agreement (regardless of the purpose for which the loan (credit) was provided), and under a mortgage in by force of law; the presence of a residential premises for a citizen-debtor, which is the only premises suitable for permanent residence for him and his family members living together in the premises he owns, is not an obstacle to foreclosure on him, if the corresponding residential premises are the subject of a mortgage (contractual or legal).
Extending the general rule on the liability of the debtor with all his property to obligations secured by contractual and legal mortgage, these legal provisions are aimed at achieving a balance of rights and legitimate interests of creditors and debtors and serve to implement the provisions enshrined in Articles 17 (Part 3), 35 and 46 (Part 1 ) Constitution of the Russian Federation.
Otherwise, it would mean disproportionate protection of the rights and legitimate interests of the debtor (defendant) in violation of other rights of equal importance to the creditor (claimant).
This was not taken into account by the courts of first and cassation instances.
The appeal court's reference to the provisions of paragraph 2 of Article 20, paragraph 4 of Article 292 of the Civil Code of the Russian Federation and the resolution of the Constitutional Court of the Russian Federation of June 8, 2010 No. 13-P cannot be considered valid, taking into account the following.
According to paragraph 2 of Article 20 of the Civil Code of the Russian Federation, the place of residence of minors under fourteen years of age or citizens under guardianship is recognized as the place of residence of their legal representatives - parents, adoptive parents or guardians.
In accordance with paragraph 4 of Article 292 of the Civil Code of the Russian Federation, alienation of residential premises in which family members of the owner of this residential premises live under guardianship or trusteeship or minor members of the owner’s family left without parental care (which is known to the guardianship and trusteeship authority), if this affects the rights or legally protected interests of these persons, which is permitted with the consent of the guardianship and trusteeship authority.
Resolution of the Constitutional Court of the Russian Federation of June 8, 2010 No. 13-P “In the case of verifying the constitutionality of paragraph 4 of Article 292 of the Civil Code of the Russian Federation in connection with the complaint of V.V. Chadaeva”, paragraph 4 of Article 292 of the Civil Code of the Russian Federation in the part defining the procedure for the alienation of residential premises in which minor family members of the owner of this residential premises live, if this affects their rights or interests protected by law, was recognized as inconsistent with the Constitution of the Russian Federation and its articles 38 (part 2), 40 (part 1), 46 (part 1) and 55 (parts 2 and 3), to the extent that the regulation contained therein - in the meaning given to it by established law enforcement practice - does not allow resolution of specific cases related to the alienation of residential premises in which minors live, to ensure effective state, including judicial, protection of the rights of those of them who are not formally classified as those under guardianship or trusteeship or those who remain (according to the guardianship and trusteeship authority at the time of the transaction) without parental care, but is either actually deprived of it at the time of the transaction for the alienation of residential premises, or is considered to be in the care of parents, despite the fact that such a transaction - contrary to the statutory responsibilities of parents - violates the rights protected by law interests of the minor.
Meanwhile, the pledge of property by virtue of a mortgage agreement, being one of the ways to ensure the fulfillment of an obligation, is not a transaction for the alienation of residential premises and does not entail the unconditional alienation of real estate that is the subject of the mortgage.
This was not taken into account by the courts.
In addition, as follows from clause 4.9 of the agreement on the mortgage of a house with a land plot, the mortgagor Emtyl Yu.M. notifies the mortgagee that as of the date of signing this agreement - October 24, 2007 - citizen Yu.M. Emtyl lives in the mortgaged house with a plot of land. and citizen Emtyl F.R. (vol. 1, pp. 43 - 49).
The case file does not contain any evidence that the defendants’ minor children live in the residential premises.
However, in violation of the provisions of Articles 56, 59, 196, 198 of the Civil Procedure Code of the Russian Federation, the courts did not examine this evidence, and they did not receive a legal assessment in the court decisions issued.
The Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation considers it necessary to also pay attention to the following.
The grounds for refusal to foreclose on property pledged under a mortgage agreement are listed in special article 54.1 of the Mortgage Law. Such grounds were not established either by the trial court or the appellate court.
Since the violations of the rules of law committed by the courts are significant, they influenced the outcome of the case and without their elimination it is impossible to restore and protect the violated rights and legitimate interests of the applicant, the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation considers it necessary to cancel the court decisions in full, and the case is sent for a new trial to the court of first instance.
When reconsidering the case, the court must take into account the above and resolve the dispute in accordance with the requirements of the law.
Guided by Articles 387, 388, 390 of the Civil Procedure Code of the Russian Federation, the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation determined:
the decision of the Takhtamukaisky District Court of the Republic of Adygea dated May 18, 2012 and the appeal ruling of the judicial panel for civil cases of the Supreme Court of the Republic of Adygea dated August 17, 2012 are cancelled.
The case is sent for a new trial to the court of first instance.
| Judges | Getman E.S. |
| Astashov S.V. |
Document overview
Due to late repayment of the loan, the bank filed a lawsuit against the borrowers, who are spouses.
Among other things, the bank demanded foreclosure on the property pledged under the mortgage agreement to secure this loan (a residential building and land).
The borrowers, in turn, demanded that this mortgage agreement be declared invalid. They referred to the fact that the mortgaged house was their only home.
In addition, the borrowers' minor children live in the house.
The courts of the two instances disagreed.
The Investigative Committee for Civil Cases of the RF Armed Forces sent the case for a new consideration and indicated the following.
Based on the provisions of the law, foreclosure on a mortgaged apartment is possible.
This is allowed both in the case when such an apartment is mortgaged under a mortgage agreement (regardless of the purpose for which the loan (credit) was provided), and under a mortgage by force of law.
If housing is the subject of a mortgage (contractual or legal), then the fact that this premises is the only one suitable for permanent residence of the debtor citizen and members of his family does not prevent foreclosure on this mortgaged property.
Thus, the obligations secured by contractual and legal mortgage are subject to the general rule on the liability of the debtor.
According to the Civil Code of the Russian Federation, the alienation of premises in which members of the family of the owner of this property live under guardianship or trusteeship or minor members of the owner’s family left without parental care (which is known to the specified authority), if this affects the rights or interests protected by law of such children, is allowed with the consent of the guardianship and trusteeship authority.
Therefore, in the event that parents of minor children enter into a transaction to alienate the premises in which the latter live, the following must be taken into account.
The court is obliged to check whether the rights of such children will be violated by such a transaction.
Meanwhile, pledging property by virtue of a mortgage agreement is one of the ways to ensure the fulfillment of an obligation.
Such a pledge is not recognized as a transaction for the alienation of housing and does not entail the unconditional alienation of the real estate that is the subject of the mortgage.
Family or maternity capital is a measure of special state support for the population, the main task of which is to improve the demographic indicators of our country.
Many citizens have the opportunity to take advantage of this, while also providing their children with the opportunity. Since these support measures were fruitful and received many positive responses from people, the program was launched again in 2019.
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Track the formation, changes and application of legislation on mat. capital is most fully possible when analyzing law enforcement practice.
general review
In its Resolution on disputes regarding maternity capital for 2019 and 2019, the Supreme Court of the Russian Federation determined the following areas of judicial practice in cases of this category:
- the right to receive MSC funds arises only if both the parent and the minor have Russian citizenship;
- the basis for the emergence of the right to state support is the birth of 2 and subsequent children alive;
- children in respect of whom parents have been deprived of their rights, or in respect of whom adoption has been canceled, are not taken into account when determining whether they have the right to mat. capital;
- disposal of MSC funds is possible only when receiving a loan or credit (including a mortgage);
- if the size of the share purchased in a residential building allows it to be allocated to a separate room, this is recognized as an improvement in housing;
- , must meet all the requirements established by law, including sanitary and technical ones, while the absence of a decision from the compulsory health insurance to recognize such a premises as unfit for habitation cannot serve as an unconditional basis for its automatic recognition as complying with the standards;
- persons who received a non-cash loan for the purchase (construction) of housing after June 2013 are required to confirm it with documents in order to receive government support measures related to the issuance of an MSC certificate;
- children and parents are equal owners of housing purchased with MSC money, such housing is located in theirs;
- MSC funds can be paid to institutions with state accreditation for the educational programs provided.
How is the issuance of funds controlled?
As a review of the practice of applying the norms for the implementation of the right to MSK, approved by the Presidium of the RF Armed Forces in 2019, shows, the issuance of mat. capital is controlled primarily by the Pension Fund of the Russian Federation when making decisions on applications from citizens to issue appropriate orders.
They may include the following manipulations:
- submission of false information to pension authorities;
- presentation to the state authorities for forged or forged documents, as well as expired documents;
- concluding agreements with other persons for the purpose of cashing out funds;
- acquisition of non-residential real estate under the guise of housing;
- overestimation of the actual cost of an object purchased using MSK funds;
- other acts contrary to the law.
Responsibility for violating the rules on family capital arises regardless of whether the owner of the certificate knew about it or not, and may consist of the following:
- fine, refund or probation for providing false information;
- if there is collusion - a fine from 100 to 500 thousand rubles., forced labor up to 5 years or imprisonment for a term up to 5 years;
- when creating a criminal group engaged in cashing out, a fine is expected for individual participants up to 1 million rubles with imprisonment up to 10 years.
You should not try to speed up the process of receiving money or purchasing real estate at the expense of employees of any bodies by providing them with material rewards - this is a criminal offense
Refusal
An interested person may be refused to issue a certificate if there are no legal grounds for obtaining it, or such grounds have been terminated, or the applicant has provided false information.
The applicant has the opportunity to appeal the refusal with a detailed explanation of its reasons to a higher authority of the Pension Fund of the Russian Federation or in court.
Termination of the right to subsidize in the form of MSC funds occurs in the event of the death of a person, recognition by the court as missing, deprivation of his rights in relation to children, commission of a criminal act against children, or cancellation of adoption. In this case, the right to capital passes to minors or children undergoing training, if they are under 25 years of age, in equal shares.
Failure to fulfill duties
If the certificate holder evades the duties assigned to him by law, legal proceedings may be initiated against him by government authorities.
Judicial practice shows that 80% of claims where the defendant is the recipient of MSC funds are satisfied in full. As a rule, the prosecutor's office is involved in filing such applications as a matter of supervision.
Ensure control of all property rights of children and guardianship authorities. They are vested with full powers to verify compliance with the rights of minors. If a share of real estate purchased with capital is not allocated to minors, the guardianship will invalidate such an agreement in court.
Return
It seems possible to return the money allocated under the MSK only in one case, if it was directed to the funded part of the applicant’s pension. This process is more correctly called not a return, but a change in the intended use of capital. Such an application can be submitted before the certificate owner retires, and the funds will be returned to the Pension Fund for further use in other legal areas.
Other cases of return are mainly of a forced nature. As a rule, this occurs on the basis of a written order from the Pension Fund in case of violation of the rules on the intended use of funds or failure to allocate mandatory shares in the right to housing. Also, a return is possible by a court decision if the transaction is declared invalid, the order is revoked, or circumstances occur that terminate the right to state ownership. subsidy
Often the question arises about the division of mat. capital in case of divorce. Here the law is clear: payments received for certain purposes, which are MSC funds, are not subject to division. This means that the specified money can only belong to the owner of the certificate.
However, in court it is possible to change the recipient of the money if, for example, minors remain living with a spouse whose name does not appear in the certificate for the MSK.
Inappropriate use
The use of maternity capital money can only be used for purposes a closed list of which is established by the law on state. support.
If this is, for example, an improvement in living conditions, then the person who received the certificate has the right to use his money: for the purchase or construction (reconstruction) of residential premises, by making transactions that do not contradict the law, or by participating in construction and savings cooperatives, or by non-cash transfer funds of an organization building housing, or a financial institution under a loan agreement issued for the specified purposes.
Thus, when improving housing at the expense of funds provided for needs other than improving living conditions (not to be confused with), payment of MSC funds will be refused on the grounds of “misuse.”
Particularly difficult cases
Registration of shares
Real estate acquired with the participation of MSC money must be registered as the property of all family members, divided into shares, including children. If the object was purchased under a mortgage agreement and is pledged to a credit institution, then until the said encumbrance is removed, it will not be possible to register the shares. To do this, the borrower draws up an obligation that he will register the right of common shared ownership of the housing after the encumbrance is removed from it. The specified obligation is certified by a notary and submitted to the Pension Fund.
If this requirement of the law is not fulfilled, the owner of the MSK certificate may be forced to take action to register shares through the court by the prosecutorial authorities supervising the implementation of legislation on family capital.
In addition, failure to include children among the co-owners of the residential premises will subsequently prevent the sale of the said property, since the registration service will be obliged to suspend any transaction in relation to the disputed property, notifying the guardianship authority, and they, in turn, will notify the prosecutor's office.
If this transaction is nevertheless carried out, then subsequently any interested party may recognize it as invalid (void by law), which will be fraught with consequences for both the seller and the buyers.
Stillborn
The right to capital funds arises for women who have given birth to their second and subsequent children. At the same time, the legislator recognizes the fact of the birth of a child alive as a legally significant circumstance.
Interesting in this regard is the judicial ruling of the Krasnodar Territory, from which it follows that the registration of the birth of a child may not be carried out. In this case, the mother can only obtain a death certificate.
Based on the above, the absence of a certificate of entry in the birth certificate with an existing birth certificate or death certificate is not a legal basis for refusing to issue a mat. capital for a second child.
Buying from relatives
According to the Family Support Act, it is theoretically possible. However, there is a difficulty here - all shares of relatives must, according to the transaction, go to the owner of the certificate, and then in shares to all family members, including children, which is difficult to implement in practice.
This happens due to the fact that the Civil Code of the Russian Federation establishes a ban on transactions in which minors and their parents, guardians or close relatives are simultaneously parties. The exceptions are donation and gratuitous use. In other words, a child, together with a parent, cannot buy real estate in shares from an aunt, uncle, grandmother, or grandfather.
This prohibition can be easily circumvented by registering housing only in the name of the certificate holder with a written obligation to allocate shares after transferring funds to MSC.
This scheme is used in practice to cash out capital money. For example, a family lives in the apartment of a relative, with whom a purchase and sale agreement is concluded with the participation of family funds. After registering the transfer of rights, virtually nothing changes, everyone lives together as before, and the money allocated for the purchase is spent at their own discretion.
The Pension Fund of the Russian Federation often refuses to carry out such transactions, since there is no real improvement in living conditions, and the transaction, as defined by civil law, is called imaginary
Limitation periods
A large number of cases regarding the invalidation of real estate transactions acquired with the help of maternal money indicates the imperfection of legislation in this area.
Such claims can be brought to court by both persons whose rights and interests have been violated, as well as government bodies, for example, a pension fund, a guardianship and trusteeship authority, and the prosecutor's office.
The statute of limitations in cases of this category is 3 years. Its course begins from the moment when the person became aware of the violation of his rights. In case of violation of the rights of a minor, the three-year limitation period begins only from the moment of its 18th birthday.
The consequences of declaring such transactions invalid will be their termination and the return of the parties to their original position that existed before registration. That is, the seller must return everything received under the contract to the buyer, and the latter, in turn, must return the property to the previous owner.
Responsibility and arrests
Use of mat. capital in violation of the law is qualified under Part 2 of Art. 159 of the Criminal Code of the Russian Federation, the sanction of which provides for punishment up to 2 years imprisonment. The verification of misuse of MSC funds is carried out by a department of the Pension Fund specially created for this purpose.
If a person is found guilty, he may face correctional labor, a fine or a suspended sentence, as well as house arrest.
Most often, a person who commits a crime of this category for the first time receives a suspended sentence. If the court considers aggravating circumstances to be proven, for example, the commission of an act by a group of persons in conspiracy or giving a bribe to an official, then the upper limit of punishment in this case may reach 10 years imprisonment.
Often, real estate firms offer the use of fraudulent schemes, motivated by people’s legal illiteracy.
Among the types of fraud, there are not only attempts to cash out or use funds for other purposes, but also cases of illegal acquisition of the right to receive capital (by submitting forged, forged documents).
Recently, cases have become common when people register the fact of the birth of a child according to witnesses; the law allows this to be done when the birth occurred prematurely outside the walls of a medical institution. At the same time, the very fact of birth did not actually happen. Thus, having received documents for non-existent children, scammers issue MSC certificates.
Among the cases considered by the courts in connection with maternity capital, the following can be noted:
- The Nizhny Novgorod court issued a ruling in the case of a citizen who used obscenities. capital for the purchase of a house that formally meets the requirements of the law. However, its actual condition, in particular the lack of communications and windows, indicated that it was not intended for living. The court declared the deal illegal, ordered the citizen to return the money to the Pension Fund and sentenced her to a suspended sentence under Art. 159 of the Criminal Code of the Russian Federation.
- In 2011, in Kurgan, citizen of the Russian Federation L., having forged documents, submitted an application to the Pension Fund for the payment of money to MSK for a previously taken out loan. The loan was issued in a shell company, which she herself managed through third parties. The money according to the application was transferred to the company’s account. However, law enforcement agencies uncovered the criminal’s plan. The verdict was as follows: to find Ms. L. guilty and imprison her for a term 1.5 years, and also oblige to return the subsidy to the state.
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A loan against maternity capital is a type of loan that allows an initial payment to the bank, payment of principal and interest using maternity capital. A mortgage loan for maternity capital is a loan option to which all current rules regarding debt collection by a bank apply. But unlike consumer loans, when the basis for the requirement to repay the debt is systematic omissions of payments, in the case of a mortgage loan there are much more reasons for collection. The fundamental circumstance that leads to early collection is a gross violation of the terms of the loan agreement. For example, according to the contract, it is required to strictly comply with the terms of insurance, not to violate the operation of the collateral property regarding the maintenance of the apartment and its repair.
Methods of debt collection.
Debt collection under a loan agreement for maternity capital is carried out either in court or out of court. The out-of-court procedure involves the conclusion of an additional agreement between the borrower and the lender, stipulating the necessary new conditions. This procedure is carried out only if the borrower provides the bank with consent to an extrajudicial procedure for foreclosure of the property, certified by a notary.
The best way out is to find a compromise with the creditor, resolve the issues and conclude a settlement agreement without going to court. If a second child was born in the family, and the mortgage was issued before his birth, then it is possible to pay off part of the debt through maternity capital. The law provides for the possibility of obtaining a state certificate, even if the child is not yet 3 years old. Funds from family capital may be used to pay off the principal debt and interest.
If the mortgage loan has been in arrears for several months, then the borrower will have to pay the penalties and interest accrued by the bank out of his own pocket. Borrowers are advised not to wait until the payment is overdue, but to immediately contact the bank with a request to defer payment. During this time, you can start registering maternity capital.
When is out-of-court debt collection impossible?There are situations when extrajudicial debt collection under a loan agreement is impossible:
the amount of the outstanding debt is less than 5% of the assessed value of the mortgaged property; the period of overdue monthly payments is less than three months; permission from other persons or an authority was required to obtain a mortgage; if one of the owners of the mortgaged property refuses to give his consent to the foreclosure of the mortgage by the creditor out of court; cases when the owners of residential premises - the subject of collateral are individuals. In the above cases, property is recovered only by court decision.
If the case does go to court, according to the Law “On Mortgage”, the borrower has the right to apply to the court with a written request to postpone the sale of the property. If the court finds that the reason for non-payment of the loan is truly valid, the sale of the collateral will be postponed for one year.
A special feature of foreclosure on mortgage loans is the fact that, despite the fact that the borrower has nowhere else to live except in the collateral housing space, foreclosure on housing is possible.
Loans for maternity capital (use of capital for a down payment or repayment of debt) raise a lot of questions among the population. The website www.yurist-online.net has a unique opportunity to ask a question to an experienced lawyer online for free. Professional lawyers give detailed and intelligible answers to questions. The site is equipped with a legal library, articles, and a subsection of frequently asked questions.=====================================
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