Bic changes. What is a bik and what is it used for

Mortgage Termination and Repayment Claims registration record are satisfied because the mortgage was based on a targeted loan agreement provided for the purchase of an apartment, however, the sale and purchase agreement for this apartment was terminated by a court decision in absentia, the borrowers are not currently the owners of the apartment:

The plaintiff filed a lawsuit against LLC Agency for mortgage lending”, ... to terminate the mortgage and cancel the mortgage record.
Satisfying the requirements of Kratselev R.E. on the termination of the mortgage on the apartment and the cancellation of the mortgage registration record, the Court of First Instance proceeded from the fact that the loan agreement of 17 April 2008 in terms of establishing a mortgage on this residential premises, is void, since the defendants are not the owners of the disputed apartment due to the termination of the contract for the sale of the apartment in court.

The decision of the court of first instance was left unchanged by the regional court, while the cassation instance indicated the following.

"The Judicial Collegium considers the court's conclusion to satisfy the claims of Krastelev R.E., to terminate the mortgage on the disputed apartment and redeem the mortgage registration record as correct, since the mortgage was based on the target loan agreement dated April 17, 2008, provided for the purchase of an apartment, however, the purchase agreement - the sale of the said apartment dated April 17, 2008 was terminated by the absentee decision of the court dated November 16, 2009, the borrowers are not currently the owners of the apartment, other, provided for in Article 25 Federal Law "On Mortgage (Pledge of Real Estate)" and paragraph 4 of Article 29 of the Law “On state registration rights to real estate and transactions with it”, there are no grounds for redemption of the registration record, in connection with which the mortgage on this residential premises may be terminated.” ( Cassation ruling of the Krasnoyarsk Regional Court dated January 24, 2011 in case No. 33-469/2011 A-57)

Since the Civil Code of the Russian Federation and the Federal Law “On Mortgage (Pledge of Real Estate)” do not establish otherwise, mortgage land plot may be terminated on the grounds provided for in Art. 352 of the Civil Code of the Russian Federation, in particular with the termination of the obligation secured by the pledge:

The plaintiff filed a lawsuit against the Federal Service state registration, cadastre and cartography for the Khabarovsk Territory on the termination of the mortgage. Indicated that on the basis of the contract of sale, concluded with FULL NAME1, acquired the land. Clause 2 of the agreement provided for the payment by the buyer of the purchase price on the day of receipt of documents after state registration of ownership, until the full settlement of the parties, the land plot is pledged to the seller. The settlement with the seller was made properly. Currently, the possibility of filing such an application is not available, since FULL NAME1 died.

The court granted the request. The regional court upheld the decision of the court, stating that since Civil Code of the Russian Federation and Federal Law "On Mortgage (Pledge of Real Estate)" unless otherwise established, the mortgage of a land plot may be terminated on the grounds provided for in Art. 352 of the Civil Code of the Russian Federation, in particular with the termination of the obligation secured by the pledge (clause 1, part 1, article 352 of the Civil Code of the Russian Federation).

The court found that the obligation arising from the mortgage-secured sale and purchase agreement dated August 04, 2005 was terminated by its proper execution.

It can be seen from the case materials that the land plot specified in the sale and purchase agreement was transferred to the buyer, and the purchase price was paid to the seller on the day the documents were received after the state registration of the transfer of rights.

The panel of judges supplemented the operative part of the decision with the following: "The mortgage of the land plot, which arose from the contract of sale from ..., concluded between FULL NAME1 and the plaintiff, stop." ( Cassation ruling of the Khabarovsk Regional Court dated October 29, 2010 in case No. 33-6966)

A mortgage ensures the fulfillment of only a specific obligation, which is specified in the mortgage agreement:

I.E. filed a lawsuit against M.R. on foreclosure on property pledged under a mortgage agreement - an apartment.
HER. presented I.E., M.R. a counterclaim for the recognition of the encumbrance in the form of a mortgage of the specified apartment as absent, in connection with the repayment of the debt under the loan agreement and the evasion of the parties from registering the termination of the record of the mortgage.

The counterclaims were satisfied by the court, while the court indicated the following.

It follows from I.E.’s receipt that the latter received 400,000 rubles to repay the loan agreement and fully the interest under this agreement, claims against M.R. does not have.

Statements of I.E. and M.R. that between them on the same day another loan agreement was concluded in the amount of 2,500,000 rubles, which M.R. did not return, so the foreclosure of the mortgaged property was carried out under both loan agreements, the court correctly recognized as unreasonable, since according to Art.Article. 2, 3, 9, 50 Federal Law "On Mortgage (Pledge of Real Estate)" mortgage secures the fulfillment of only a specific obligation, which is specified in the mortgage agreement. Such an obligation is a loan in the amount of 400,000 rubles. ( Cassation ruling of the Krasnoyarsk Regional Court dated September 29, 2010 in case No. 33-8392/2010)

Having established that the obligation secured by the mortgage has been fulfilled, the court terminated the mortgage by virtue of the law:

The courts considered cases on the claims of mortgagors for the termination of mortgage in connection with the fulfillment of an obligation secured by a pledge. (clause 1 clause 1 article 352 of the Civil Code of the Russian Federation). This category of cases represents a small part. The basis of the claim is the absence of the pledgee and his inability to appear at the registration authority with a statement on the termination of the pledge. Such claims are mainly considered according to the last known place of residence of the defendant, a lawyer is appointed by the court as his representative in accordance with Art. 50 Code of Civil Procedure of the Russian Federation.

In the case, the court decision satisfied the claims of Z. against M-vu A., M-vu D., G., M-th V. to terminate the mortgage were satisfied. The mortgage was terminated by virtue of the law, registered on July 28, 2000, for a residential building located at the address: Astrakhan Region, Narimanov District, s. Raznochinovka, st. Lenin.

Satisfying the claims, the court proceeded from the provisions of Art. 352 of the Civil Code of the Russian Federation, according to which the pledge is terminated with the termination of the obligation secured by the pledge. A note about the termination of the mortgage must be made in the register in which the mortgage agreement is registered.

In accordance with Art. 25 of the Federal Law “On Mortgage (Pledge of Real Estate)”, unless otherwise provided by federal law, the mortgage registration entry is canceled within three business days from the date of receipt by the body that carries out state registration of rights, the application of the owner of the mortgage, the joint application of the pledgor and the pledgee, the application of the pledgor with the simultaneous presentation of a mortgage bond containing a note from the holder of the mortgage bond on the fulfillment of the obligation secured by mortgage in in full or a court decision to terminate the mortgage.

It was established that under the contract of sale dated 26.06.2000. M-ov A., M-ov S., M-ov D., G., M-ova V. transferred into the ownership of Z. one-fifth share, and as a whole a residential building letter A, located at the address: Astrakhan Region , Narimanov district, with. Raznochinovka, st. Lenin. The terms of the contract determine the price of the property - 16,000 rubles, which the buyer pays to the sellers in the following order: before signing the contract, 10,000 rubles are paid, the remaining amount is 6,000 rubles. to be paid before September 15, 2000. To ensure the terms of payment under the contract, a mortgage is registered by virtue of law.

According to the receipt dated 04.10.2000, certified by a notary L., M-ov A. received money from Z. in the amount of 6,000 rubles under a sale and purchase agreement dated 06.26.2000.

Having established that the obligation secured by the mortgage has been fulfilled, the court terminated the mortgage by virtue of law. (" Generalization of judicial practice on civil disputes arising from a property pledge agreement, including real estate (mortgage) considered for 2008 and the 1st half of 2009" conducted by the Astrakhan Regional Court).

HOW TO PAY OFF A MORTGAGE REGISTRATION RECORD Mortgage (pledge of real estate) is subject to state registration and arises from the moment of such registration. The law also provides for certain types mortgages, the possibility of issuing a mortgage - registered security, certifying the following rights of its legal owner: the right to receive performance under monetary obligations secured by a mortgage, without presenting other evidence of the existence of these obligations; the right to pledge property encumbered with a mortgage. The emergence of any obligation presupposes its fulfillment, the final settlement between the parties, and if such an obligation was secured by a mortgage, real estate can be released from encumbrance - repayment of the mortgage. The repayment of a mortgage is of a declarative nature, therefore, even if the obligations between the parties have ceased, until the parties submit appropriate applications to the body that carries out state registration of rights, the mortgage registration record will be up-to-date and this information will be reflected when issuing information from the Unified State Register of Rights. The mortgage registration entry is canceled within three working days from the date of receipt by the body that carries out state registration of rights: - a joint application of the pledgor and the pledgee or a person authorized by him (them) if he has a notarized power of attorney, unless otherwise established by federal law ; - statements of the owner of the mortgage; - applications of the mortgagor with the simultaneous submission of a mortgage bond containing a note from the owner of the mortgage bond on the fulfillment of the obligation secured by the mortgage in full; - court decisions arbitration court termination of the mortgage. The legislation also provides for a special case of termination of the mortgage registration record. In the event of liquidation of a pledgee that is a legal entity, the mortgage registration entry is canceled on the basis of an application by the pledger and an extract from the unified state register legal entities confirming the entry in the specified register of an entry on the liquidation of this legal entity. No other documents are required to redeem a mortgage registration entry, and the state fee is not paid. The owner of immovable property, after the termination of the mortgage registration record, has the right to apply for the re-issuance of a certificate of state registration of rights, paying state duty or request an extract from the Unified State Register of Rights by paying a fee for providing information.

At [insert name of court,

to which the application is being made]

Plaintiff: [F. I. O. in full]

Address: [fill in]

Respondent: [insert name credit institution]

Address: [fill in]

Third party: [insert the name of the registration authority]

Address: [fill in]

[Date, month, year] between me and [indicate the name of the credit institution] (hereinafter referred to as the Respondent) a mortgage agreement N [value] was concluded, according to which the Respondent provided me cash in the amount of [in numbers and words] rubles for a period of [value] months to [value] % per annum for the acquisition of ownership of [an apartment/land plot/other real estate].

Securing the fulfillment of obligations under the named agreement is a pledge of real estate acquired at the expense of loan funds in accordance with the terms of the contract for the sale of [apartment / land / other real estate], located at the address: [insert as appropriate] from [day, month, year] N [value].

[Day, month, year], on the basis of the act of acceptance and transfer of [indicate the name of the seller of the property], I accepted (a) real estate, and the specified act of acceptance and transfer and the contract of sale of [apartment/land plot/other real estate] registered in [insert name of registration authority] [day, month, year]. The ownership of the said property and encumbrance in the form of a mortgage by virtue of law were registered in accordance with the requirements of the legislation, which is confirmed by a certificate of state registration of the right dated [day, month, year] N [value].

[Date, month, year] according to the debt repayment register, I made the last payment amount to the Respondent's cash desk, thereby repaying the entire loan amount in the amount of [figures and words] rubles.

Thus, I fully fulfilled my obligations under the loan agreement N [value] from [date, month, year].

However, [describe the essence (circumstances) of the contested actions (inactions), by virtue of which the defendant unreasonably evades registration of the repayment of the mortgage entry in the USRR for real estate and transactions with it, and the plaintiff was forced to file a claim with the court. Indicate the circumstances on which the plaintiff's claims are based, indicating the specific norms of the law, referring to which the plaintiff in legal aspect substantiates his claim.

By virtue of Art. 8 of the Civil Code of the Russian Federation, civil rights and obligations arise from the grounds provided for by law and other acts, as well as from the actions of citizens and legal entities, which, although not provided for by law or such acts, but by virtue of general principles and meaning civil law give rise to civil rights and obligations.

These grounds include contracts and other transactions provided for by law, as well as contracts and other transactions, although not provided for by law, but not contrary to it.

A variation of the latter is an agreement on the pledge of real estate (mortgage), legal regulation which is defined by § 3 of Chapter 23 of the Civil Code of the Russian Federation, as well as the Federal Law "On Mortgage (Pledge of Real Estate)" dated July 16, 1998 N 102-FZ (hereinafter referred to as the Mortgage Law).

According to Art. 1 of the Mortgage Law under an agreement on pledge of real estate (mortgage agreement), one party - the pledgee, who is a creditor under an obligation secured by a mortgage, has the right to receive satisfaction of his monetary claims against the debtor under this obligation from the value of the pledged real estate of the other party - the pledgor mainly to other creditors of the mortgagor, with exceptions established by federal law. The pledgor may be the debtor under an obligation secured by a mortgage, or a person not participating in this obligation (a third party).

In accordance with paragraph 1 of paragraph 1 of Art. 352 of the Civil Code of the Russian Federation, a pledge terminates with the termination of the obligation secured by it. At the same time, a note about the termination of the mortgage must be made in the register in which the this agreement(Clause 2, Article 352 of the Civil Code of the Russian Federation).

In accordance with paragraph 1 of Art. 19 of the Mortgage Law, a mortgage is subject to state registration in the Unified state register rights to real estate and transactions with it in the manner established by the Federal Law "On State Registration of Rights to Real Estate and Transactions with It" dated July 21, 1997 N 122-FZ (hereinafter referred to as the Law on State Registration).

By virtue of paragraph 4 of Art. 29 of the Law on State Registration, the mortgage registration record is canceled on the grounds provided for by the Law on Mortgage.

In accordance with paragraph 1 of Art. 25 of the Law on Mortgage, unless otherwise provided by federal law or the specified article, the mortgage registration entry is canceled within three business days from the date of receipt by the body that carries out state registration of rights, the application of the owner of the mortgage bond, the joint application of the pledgor and the pledgee, the application of the pledgor with simultaneous presentation of a mortgage bond containing a note from its owner on the fulfillment of the obligation secured by the mortgage in full, or a decision of the court, arbitration court or arbitral tribunal to terminate the mortgage.

Obligations under the contract from [date, month, year] N [value] I have fulfilled in full and in accordance with Art. 408 of the Civil Code of the Russian Federation are terminated due to their proper execution. However, for the above reasons, it is not possible to exclude from the register the registration entry made in the Unified State Register of Rights to Real Estate and Transactions with it dated [day, month, year] N [value].

[State additional facts at the discretion of the plaintiff].

Considering the foregoing, guided by paragraph 1 of Art. 352, Art. 408 of the Civil Code of the Russian Federation, Art. Art. 3, 4, 131, 132 Code of Civil Procedure of the Russian Federation, Art. 25 of the Federal Law "On Mortgage (Pledge of Real Estate)" dated July 16, 1998 N 102-FZ, please:

1. Terminate the mortgage on the property located at [insert as appropriate].

2. Oblige [indicate the name of the registering authority] to take actions to remove and cancel the mortgage registration entry in the Unified State Register of Rights to Real Estate and Transactions Therewith from [day, month, year] N [value].

Annex (according to the number of persons participating in the case):

1. Copy statement of claim on the termination of the mortgage and the redemption of the registration entry in the USRR.

2. A copy of the mortgage agreement (pledge of real estate) dated [day, month, year] N [value].

3. Copy of the contract of sale dated [day, month, year] N [value].

4. Copies of documents confirming the fulfillment of obligations for the payment of borrowed funds.

5. Receipt of payment of the state fee.

6. [List other documents related to the essence of the statement of claim].

[signature, initials, last name]

[day month Year]

Art. 25 federal law"On Mortgage (Pledge of Real Estate)" dated July 16, 1998 N 102-FZ (hereinafter referred to as Federal Law 102 on Mortgage) contains a list of grounds for redemption of mortgage registration records, namely:

• mortgage holder's statement;
• joint application of the mortgagor and the pledgee;
• application of the mortgagor with the simultaneous submission of a mortgage containing a note from the owner of the mortgage on the fulfillment of the obligation secured by the mortgage in full;
• a decision of a court, arbitration court or arbitral tribunal to terminate the mortgage.

Other grounds for the redemption of a mortgage registration entry may be provided for by federal law.

The most common basis for the redemption of a mortgage record is the submission of applications from the Mortgagor and Mortgagee. In addition to applications for the redemption of the mortgage registration record from the Pledgee and the Pledgor, a standard package of documents is provided (a notarized power of attorney, founding documents, powers, PSRN, TIN, etc. - more). In the event of a change in the name or reorganization of the parties to the mortgage agreement with a change in the OGRN, simultaneously with applications for the redemption of the mortgage registration record, it is necessary to submit an application for amendments to the USRR, documents confirming the changes, and payment order on payment of state duty for making changes.

Note: If the redemption of a mortgage record based on a court order general jurisdiction or arbitration court - two copies of the decision, certified by the court, must be submitted for registration. If the repayment of a mortgage registration entry is based on a decision of an arbitration court, the original and a court-certified copy of the decision are submitted for registration.

Note: A certificate of state registration of rights that does not contain information about the mortgage can be obtained subject to the submission for registration of the original and a copy of the payment order for the payment of the state. duties. Obtaining a certificate without encumbrances does not have practical value, since in order to confirm the absence of encumbrances for any subsequent transactions with the property, the interested parties will still be guided by the information contained in the extract from the USRR.

Note: Until recently, the Rosreestr Offices in Moscow and the Moscow Region used to send notifications to applicants about the redemption of the mortgage registration record, reflecting the date of redemption and the state registration number of the redeemable encumbrance. This practice was not legally justified, but practically justified, because. the applicant after the cancellation of the mortgage registration record received a written document with the necessary information. It seems that the legislator needs to reflect in the current instruction such obligations of the registering authority, since this information is undoubtedly in demand (information about the date of maturity of the mortgage registration record is required in the accounting process).

Note: The maturity of the mortgage registration record is within three working days from the date of receipt by the registering authority of the documents required for registration.

Note: There is no need to pay the state duty for the redemption of a mortgage registration record in all cases, with the exception of cases of registration of any additional agreements, which are the basis for the redemption of entries in the USRR.

Attention: there is no need to submit a letter from the Mortgagee to Rosreestr for registration of mortgage repayment on the fulfillment of obligations under the main agreement secured by a mortgage (credit, loan, etc.) other documents (including payment orders and certificates of payment, letters from the mortgagee on the fulfillment of obligations under the contract secured by a mortgage, etc.

In practice, in some regions of the Russian Federation, in violation of the requirements of the Federal Law 102 on mortgages, the territorial departments of Rosreestr still require a letter from the Bank to fulfill obligations under loan agreement. It is worth noting that the case usually does not reach the suspension of registration on this basis.