Recognition of a pledge agreement as invalid: judicial practice. Recognition of the mortgage agreement as not concluded If the borrower violates the agreement

Case No. 2-887/2015

SOLUTION

In the name of the Russian Federation

Judge of the Central District Court. Prokopyevsk Tikhonova L.T.

under the secretary Dyakonova Yu.R.

examined in open court in the city of Prokopyevsk

a civil case on the claim of Aftahov Rinat Abbasovich against OJSC "Ural Bank for Reconstruction and Development" (UBRD) to recognize the loan agreement as partially invalid,

SET UP:

Plaintiff Aftakhov R.A. filed a lawsuit against the defendant to recognize the loan agreement as partially invalid, to remove the encumbrance from the only housing from bail, arguing that he had taken a loan in the amount of 1,900,000 rubles from the branch of UBRD OJSC, loan agreement No. from DD.MM. YYYY of the year. When signing the loan agreement, the defendant pledged his only dwelling, misleading him that the only dwelling is also subject to a pledge, taking advantage of his legal illiteracy. He purchased housing in 2007, it is not a mortgage and was purchased before the conclusion of an agreement with the bank.

At the hearing the plaintiff Aftakhov P.A. He supported the claims and added that he and his minor son were registered in the house.

The representative of the plaintiff Bshoyan John, acting on the basis of a notarized power of attorney, supported the claims, asked to remove the encumbrance from the house so that the plaintiff could freely dispose of housing, t.to. the bank has imposed an unlawful charge. Based on Part 2 of Art. 6 of the Law on Mortgage asks to recognize the loan agreement as partially invalid.

The representative of the defendant did not appear at the hearing, the day of the hearing was notified.

After listening to the plaintiff, his representative, examining the written materials of the case, the court comes to the following.

DECIDED:

The lawsuit filed by Rinat Abbasovich Aftakhov against the Ural Bank for Reconstruction and Development OJSC (UBRD) to recognize the loan agreement as partially invalid, to remove the encumbrance from real estate, was denied due to groundlessness.

The decision can be appealed to the appeal Kemerovo Regional Court within a month from the date of manufacture of the decision in final form.

Judge: signature

That's right: Judge L.G. Tikhonov

Court:

Central District Court of Prokopyevsk (Kemerovo Region)

Judges of the case:

Tikhonova L.G. (referee)

Litigation on:

Recognition of the transaction as invalid

Recognition of the contract as invalid

Judicial practice on the application of the norm of Art. 167 of the Civil Code of the Russian Federation

Since the mortgage agreement is the same civil law transaction as others, all grounds for the invalidity of transactions provided for by civil law are applicable to it.

At the same time, the existence of the right to challenge the mortgage does not yet mean a real possibility of its implementation. As a rule, the application of the general grounds for invalidating transactions (contracts) to mortgages is very difficult without taking into account all the specifics of the institution of real estate pledge, the features of the legal framework regulating it, and the practical component of concluding mortgage agreements.

Mortgage disputes: the most common causes and grounds

In the vast majority of cases, loan agreements, which generally include mortgages, are disputed due to problems with their execution by borrowers. The latter usually consider the contestation tool not so much as a way to protect their interests, but as a means of avoiding liability under a loan agreement and minimizing the amount of debt collection.

Based on the judicial practice of mortgage disputes, several typical categories of cases can be distinguished:

Contracts concluded with persons who did not have the right to independently participate in the transaction and make decisions, or whose participation is disputed, are disputed. Very often, in this category of cases, claims are made not to the borrower, but to the person who provided the property as collateral. For example, the provision of a pledge of real estate, the ownership of which is registered in the name of an incapacitated (limitedly capable) person, a minor, without the consent of the parents (guardians, custodians) may be challenged. In general, disputed real estate provided as collateral becomes a frequent subject of contesting a mortgage agreement.
Challenging certain provisions of the mortgage agreement as violating the requirements of the law. In this category of cases, everything is individual. Both general grounds for recognizing transactions as invalid, for example, bondage, sham, pretense of a transaction, as well as private ones, can be used. Private grounds in the context of mortgages are grounds arising strictly from the peculiarities of the mortgage agreement, the legal force of which is directly predetermined by the mortgaged property, its status and characteristics.
Disputes arising from the occurrence of grounds for the bank to present claims to the borrower. This category of cases includes disputes over the bank's foreclosure of collateral, including those related to its assessment and implementation, as well as disputes over the presentation of monetary claims against the borrower, co-borrower and guarantor.

How to dispute a mortgage

All disputes related to the mortgage agreement, and the subject of which is the agreement itself, are considered exclusively in court.

A claim may be filed:

borrower/co-borrower;
owners of collateral real estate and their legal representatives;
guarantor (only under certain circumstances);
other interested persons whose rights and interests have been violated by the mortgage agreement.

Peculiarities of the subject composition in lawsuit proceedings caused by the contestation of mortgage agreements are related to the fact that the parties involved in the credit legal relationship are not always subjects of the pledge legal relationship. For example, the borrower may not necessarily be the owner of the collateral. Or, say, a loan can be taken and issued by only one spouse, and the second, formally not being a participant in the credit relationship, is the owner of the collateral or has the right to claim it.

The claim may be filed at the initiative of the person disputing the mortgage agreement or in response to the bank's demands as a counterclaim.

Illustration: Pravo.ru/Petr Kozlov

Secured transactions are invalidated according to the same rules as ordinary transactions, but there are some peculiarities. Lawyers explained why it is now more difficult to challenge transactions than before, what their bankruptcy risks are, and when a violation of corporate procedure will not help invalidate the contract. We also give an example of an arbitration case, when the security was declared invalid due to misrepresentation.

Security measures, such as collateral or guarantees, are used for real estate contracts, large loans, and other significant transactions. They should give the lender confidence in a "plan B" in case of problems of the counterparty. However, unscrupulous debtors are trying in every possible way to challenge the security transactions in order to deprive the creditor of one of the fastest and easiest ways to repay the debt, says lawyer Natalya Lopatina.

Why is it harder to argue?

Security transactions are generally invalidated according to the same rules as ordinary transactions. The general grounds for contesting from the Civil Code, such as sham, pretense, abuse of authority, etc., are now used much less frequently, Dmitry Konstantinov from a law firm shares his observations. The lawyer explains this by the effectiveness of special rules - on insolvency or corporate ones. In addition, in 2013, a new version of Art. 166 of the Civil Code on voidable and void transactions, which significantly limited the possibilities of challenging them, continues Yury Pustovit, managing partner of AB.

Mortgages and guarantees are challenged no less than before, but the courts have begun to refuse more often.

Yury Pustovit, Managing Partner, Yug

In particular, Art. 166 consolidated the principle of estoppel: a person cannot seek to have a transaction recognized as invalid if previously it behaved as if it were valid. In addition, earlier, “any interested persons” could demand the application of the consequences of the invalidity of the transaction, but now it is the parties or other persons specified in the law.

The practice has also stabilized on such a basis for contesting the guarantee of individuals as the lack of consent of the spouse. 10 years ago, this was one of the most popular ways to cancel security, recalls Dimitri Nurzhinsky from. But on July 12, 2012, the Plenum of the Supreme Arbitration Court issued a resolution in which it explained that the guarantor was personally responsible - and, therefore, the absence of the consent of the spouse does not indicate the invalidity of the transaction. This position concerned individual entrepreneurs, but in 2013 he applied the same approach in the case of ordinary citizens (case No. 18-KG13-27), says Nurzhinsky. Despite the unequivocal decision and established practice, banks are reinsured and continue to require the notarized consent of the spouse for suretyship, the lawyer shares.

Registers also help to stabilize the turnover. The pledge is terminated if the pledged object was acquired by a bona fide buyer who was not aware of the encumbrance (part 2, clause 1, article 352 of the Civil Code). Real estate is “protected” from this by a rights registration system, but such schemes are common in the car sales market, Nurzhinsky says. The courts, according to him, were not always ready to apply Art. 352, therefore, in 2014, the legislator introduced a system for registering a pledge of movable things with a notary (Article 339.1 of the Civil Code).

Bankruptcy and corporate disputes

In bankruptcy, it is much easier to invalidate a transaction. A mortgage or surety may be challenged on the grounds that it caused harm to creditors or was made in favor of one of them. If it is confirmed in court that the creditor knew or should have known about the pre-bankruptcy state of the debtor, the transaction is declared invalid.

Contracts concluded within three years prior to the initiation of insolvency proceedings may be at risk of bankruptcy, warns Alexander Anchugov, head of the legal support department for development projects.

Other grounds for contestation are corporate. Major transactions or related party transactions must be approved within the firm in accordance with its documents and law. If the procedure is violated, then the contract may be declared invalid, provided that the creditor knew or could have known about the violation. Therefore, it is important for him to check the corporate structure of the counterparty in advance and make sure that the transaction is approved in accordance with all the rules. This is a common ground for contesting a pledge, although it may turn out during the trial that the contract was actually approved or the statute of limitations has passed, says legal practice consultant Georgy Murzakaev. You can defend yourself against such claims, including by pointing out the bad faith of the opponent. Recently, the importance of the institution of abuse of rights has increased, Murzakaev draws attention. He gives examples of decisions that "stood" at the level of the Economic Board of the Armed Forces:

In case No. A58-8432 / 2014, the AYAM Management Company disputed the mortgage of real estate, which was mortgaged under the company’s loan by the controlled Association of Builders of the Amur-Yakutskaya Mainline. As stated in the lawsuit, the pledge was not approved by the general meeting of participants. Although corporate approval rules were violated, the courts refused to invalidate the deal. They considered that the main goal was to free the mortgagor, who had real assets, from the mortgage, which means that the company abused the right to challenge the transaction. In addition, the majority participant approved the mortgage after all.
In case No. A40-186355/2015, Oil Depot No. 1 tried to invalidate a mortgage that was approved at an extraordinary general meeting of participants, but should have been at the board of directors. But the courts rejected the claims. They noted that the necessary quorum had been reached. And the lawsuit was filed in order to evade the execution of the transaction and cause losses to the bank.

Other grounds for contestation and minimization of risks

Transactions may also be challenged on other grounds known to every lawyer. For example, the power of attorney did not give the authority to enter into just such an agreement, or it turned out that the subject of the mortgage does not actually belong to the mortgagee (for example, the contract for the sale of a building was declared invalid). People often try to challenge the building's mortgage on the grounds that the site under it is not mortgaged, says Pustovit from AB Yug. According to the lawyer, the courts tend to dismiss such claims: they explain that registration of rights to land depends only on the pledger, and the pledgee has nothing to do with it.

There are also relatively rare ways of challenging. Murzakaev cited case No. A40-216102/15 as an example. In it, the court invalidated the pledge agreement for a share in the authorized capital of an LLC as security for a bank guarantee of Peresvet Bank, since the bank misled the pledger-individual. The first and second instances drew attention to the fact that the main security had already been provided, and the share pledge agreement was concluded additionally, after the issuance of a bank guarantee and at the request of the bank. What was the meaning of this, the representatives of the bank did not explain. The courts came to the conclusion that they misled the citizen and demanded to conclude a deal that was not necessary. So, it should be declared invalid.

In one of the cases, the courts invalidated the share pledge agreement, because the pledger-individual was misled: there was no need for a transaction.

It is difficult to foresee such a risk, but the most frequent ones can and should be prevented. This is what lawyers do, whose task is to carefully study the documents, request the missing ones and correctly structure the transaction. How to protect the interests of both parties to the transaction, says Lopatina from the "Commonwealth of Land Lawyers" on the example of the purchase and sale of a plot with a "wrong" purpose. The buyer wants to purchase an agricultural land and build a cottage settlement on it. The seller promises that he will change the purpose of the land, but, of course, at the expense of the advance. “Here you need to conclude a preliminary agreement or a contract for the sale of a future thing - a plot with a legal regime for housing construction,” says Lopatina. “The term for concluding the main contract must be strictly tied to the moment the required type of use of the site is entered into the USRN.” To register it, the seller will receive an advance from the buyer. In case it is not possible to change the purpose of the land, Lopatina suggests connecting a financially reliable guarantor who guarantees the return of the advance.

Mortgages are often not enough to get a loan for business needs; banks require a personal guarantee from the CEO or members of the legal entity. As a result, these people become responsible for multi-million and multi-billion dollar debts, which, most likely, they will not be able to pay off. It is difficult to invalidate such a surety because the courts are trying to keep the security, says senior lawyer Tatiana Voronina: “They reject arguments that the debt was already there at the time of the surety or that the amount was not specified in the contracts. Also, the courts do not take into account that the guarantor did not have sufficient property to pay the debts (and it is clear that there will not be any more).”

Voronina is sure that banks enter into agreements not to receive funds, but to control the guarantor under fear of bringing him to joint and several liability. She recommends the heads and participants of companies to apply in writing to the bank with a request to do without a guarantee or try to change its conditions. You can try to limit the liability to those debts that arise during the period of office of a particular person. Otherwise, you will have to answer for the subsequent ones - after the citizen ceases to control society, Voronina concludes.

Legal advice:

1. A loan agreement (mortgage) was concluded in December 2007. What statute of limitations applies when it is declared invalid? Thank you.

1.1. The statute of limitations is three years.