Mortgage and assignment of rights: what the borrower needs to consider. Mortgage Transfer Why Bank Sells Mortgages

Civil Code of the Russian Federation). Thus, in most cases, the consent of the debtor is not required for the assignment of the right to claim (clause 2, article 382 of the Civil Code of the Russian Federation). After all, he, by and large, should be indifferent to whom to fulfill the obligation. But the debtor must be notified in writing of the assignment, otherwise, firstly, he will not know to whom he must properly fulfill his obligation (clause 1, article 408 of the Civil Code of the Russian Federation); secondly, the debtor will have the right to perform performance to the original creditor, which is recognized as the performance of obligations to the proper creditor (clause 3 of article 382 of the Civil Code of the Russian Federation). The form of making the assignment of the right to claim must be made in the same form as the transaction on which it is based. That is, for example, the assignment of a claim based on a transaction made in a written notarial form must also be made in writing and certified by a notary (Article 389 of the Civil Code of the Russian Federation).

Assignment of mortgage rights to an apartment

When pledging a mortgage bond without transferring it to the mortgagee, the procedure for levying execution on the mortgaged mortgage is regulated by Article 349 of the Civil Code Russian Federation. 3. When concluding an agreement on the pledge of a mortgage bond with its transfer to the mortgagee of the mortgage bond, the parties shall have the right to provide for: 1) foreclosure on the pledged property in the manner established by Article 349 of the Civil Code of the Russian Federation; 2) the transfer of rights under a mortgage in the manner, on the terms and with the consequences provided for by Article 48 of this federal law; 3) implementation by the mortgage pledgee on the mortgage of a special mortgage inscription, giving the pledgee of the mortgage the right after the expiration of certain period sell the mortgage in order to withhold from the proceeds the amount of the obligation secured by its pledge. 4.

Mortgage and assignment of rights: what the borrower needs to consider

The mark must be signed by the mortgagee indicated in the mortgage bond, and if this inscription is not the first, by the owner of the mortgage bond indicated in the previous mark. 2. The transfer of rights under a mortgage bond to another person means the transfer thereby to the same person of all the rights certified by it in the aggregate. The legal owner of the mortgage bond owns all the rights certified by it, including the rights of the mortgagee and the rights of the creditor under the obligation secured by the mortgage, regardless of the rights of the original mortgagee and previous owners of the mortgage bond.

Unless otherwise stipulated in the transaction specified in clause 1 of this article, when transferring rights under a mortgage bond with partial performance of an obligation secured by a mortgage (principal obligation), those obligations that should have been performed prior to the transfer of rights under the mortgage bond shall be considered fulfilled. 3.

Assignment of rights under a mortgage agreement (Clause 5, Article 47 of the Mortgage Law)

Their occurrence is possible in case of assignment of rights under a mortgage agreement or under an obligation secured by a mortgage, the rights of which are certified by a mortgage. Therefore, a ban has been introduced on the assignment of the above rights in the presence of a mortgage. If this rule is violated, the transaction is recognized as void as not complying with the requirements of the law (Art.

168 Civil Code of the Russian Federation). Article 48. Transfer of rights under a mortgage bond 1. The transfer of rights under a mortgage bond shall be effected by concluding a transaction in a simple written form. The transfer of rights under a mortgage entails the consequences of an assignment of claims (cession). When transferring rights under a mortgage, the person transferring the right makes a mark on the mortgage on the new owner.
The note must accurately and completely indicate the name (name) of the person to whom the rights under the mortgage are transferred, and the basis for such transfer.

Chapter viii. assignment of rights under a mortgage agreement. transfer and mortgage

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Chapter VIII. Assignment of rights under a mortgage agreement. Transfer and pledge of mortgage Expand

Article 47
Article 48
Transfer of mortgage rights
Article 49

The current text of the document © NPP GARANT-SERVICE LLC, 2018. The GARANT system has been produced since 1990. Garant Company and its partners are members of the Russian Association of Legal Information GARANT.

Transfer of rights under a mortgage

Attention

With the introduction of this provision in the Tax Code of the Russian Federation, the ambiguity was eliminated, since the rule was directly fixed according to which the creditor did not have the obligation to calculate VAT on the assignment of the right to claim arising from the loan agreement, and the new creditor - upon receipt of not only the main the amount of the debt, but also the interest accrued under the terms of such an agreement. But the issues of taxation of VAT on transactions in the event of a subsequent assignment of rights remained unresolved. Opinion of the Ministry of Finance of Russia According to the opinion of the financial department, in particular set out in Letter No. 03-07-11/1 dated 12.01.2009, VAT exemption is valid only upon the initial assignment of a claim, as well as upon repayment by the borrower of obligations to a new creditor, to which the claim has been transferred from original creditor.

Such conclusions are based on the fact that the definition of "creditor" should be understood only as the original creditor, i.e.

VAT upon assignment of the right to claim on loans and mortgages

of the Law on Mortgage, it is possible to establish all the endorsements made on the lost mortgage bond), or on the basis of a court decision issued as a result of consideration in the special proceedings of a case on the establishment of facts of legal significance, in accordance with the procedural legislation of the Russian Federation. It seems to us that in the first case there must also be some evidence that the mortgage was not later transferred by the applicant to another person who was not registered in unified register and not informing the debtor and the pledgor about the acquisition of rights under the mortgage. The Law on Mortgage establishes that the compilers of the mortgage bond, subject to the above conditions, are obliged to draw up a duplicate of the mortgage bond marked “duplicate” on it as soon as possible and transfer it to the body that carried out the state registration of the mortgage.

How to get a mortgage from a bank when transferring an apartment As a rule, as any new building is being built, some buyers of future apartments decide to resell the housing, which can be done from the moment the contract is registered equity participation before signing the act of acceptance and transfer of the object. This creates an assignment of rights. If the new owner does not have enough funds to pay for the assignment, then you can take a mortgage from a bank, although not all banks provide this service. Let's consider step by step how to get a mortgage by assignment in a bank:

First, it is advisable to apply to the bank that financed the object under construction, because in this case the chances of obtaining approval for a mortgage are maximum.

Mortgage Assignment Agreement

Important

The assignment of rights under a mortgage-secured obligation (principal obligation) in accordance with paragraph 1 of Article 389 of the Civil Code of the Russian Federation must be made in the form in which the mortgage-secured obligation (principal obligation) was concluded. 4. The provisions of Articles 382, 384-386, 388 and 390 of the Civil Code of the Russian Federation on the transfer of creditor's rights by assignment of a claim shall apply to the relations between the person to whom the rights are assigned and the pledgee. 5. The assignment of rights under a mortgage agreement or an obligation secured by a mortgage, the rights of which are certified by a mortgage, is not allowed.

When such a transaction is made, it is recognized as null and void.

Assignment of the right to claim under a mortgage

In the Civil Code of the Russian Federation, the concepts of "original creditor" and "new creditor" must be considered in relation to each operation of assignment (subsequent assignment) of rights, and not in general to the entire chain of operations of successively assigned rights, i.e. from the initial assignment to the moment the borrower fulfills its obligations to the creditor. In other words, the new creditor under the first assignment agreement will be the original creditor in the subsequent assignment (assignment) agreement. Therefore, the person to whom the rights are assigned will be the new creditor - and so on. along the chain. Secondly, from the literal interpretation of the norms of Art. 155 of the Tax Code of the Russian Federation, it can be concluded that clause 4 of this article applies only to operations for the assignment of the right to a monetary claim arising from a contract for the sale of goods (works, services). Moreover, sales operations carried out under these agreements should be subject to VAT.

Many of our compatriots took the opportunity to get a mortgage loan and improve their living conditions. Someone finally acquired the treasured meters, someone created a new family, someone improved their living conditions. At the same time, all these people became clients of banks that issued mortgage loans. In addition, the happy owners of "meters" received some anxiety: not only do you pay off your mortgage loan every month, but also the situation in the economy is incomprehensible, plus everything - the hype fueled by the media around possible mortgage problems. And then a letter comes from the bank that the mortgage bond (a security certifying the fact of the pledge of your own apartment) has been sold by the bank. All this information in the head does not fit into a clear structure, so we think it all out ourselves, and we know how to think it out.

What is really happening? Why is the bank selling mortgages? Does he have the right to sell your mortgage without your consent? What should you do in this case? What additional costs may the borrower incur? Why? And in general, what to do? Let's try to understand everything in more detail.

1. Why is the bank selling mortgages?

When issuing a mortgage loan, the bank draws up a security (called a mortgage) that the borrower signs. This security, on the one hand, certifies that this apartment is pledged to the mortgage holder, on the other hand, it can be sold to another (new) owner, who, from the moment of sale, begins to receive income from this loan.

According to Art. 13 clause 2 of the Federal Law of July 16, 1998 No. 102-FZ (as amended on December 30, 2008) “On Mortgage (Pledge of Real Estate)”: “A mortgage is a registered security certifying the following rights of its rightful owner:

the right to receive performance on 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.

This means whoever owns the mortgage has the right to receive the borrower's monthly payments on the loan and the right to mortgage the apartment. System mortgage lending forms the mortgage market: primary and secondary. On the primary market work mostly commercial banks that issue and sell loans through the sale of mortgages, on secondary market - financial companies, funds that buy up mortgages of mortgage banks secured by a pledge of property, and then issue other securities (bonds) on their own behalf. Thus, from the position of banks, it is more reasonable after issuing a long-term mortgage loan sell their rights as a lender in the market through the sale of mortgages and thereby attract additional funds for issuing new loans.

2. Does the Bank have the right to sell the mortgage without coordinating this issue with the client?

In accordance with the Civil Code, the debtor's consent to the transfer/assignment of the right to claim debt is not required. The bank simply notifies the borrower of the sale of the mortgage. By the way, there is nothing wrong here. If you are a conscientious payer and pay off the loan on time, it does not matter to you who owns the mortgage on your apartment.

3. How will the assignment of mortgage rights affect the terms of the loan?

Nothing changes for a borrower whose mortgage has been sold. All terms and conditions of the Loan Agreement and mortgage (loan amount, interest rate, terms, etc.), the procedure for repaying the loan remains the same. Only the Lender itself and the details of the payment of the debt have changed (this is indicated in the notification letter). All loan issues, such as early repayment of the loan, from now on must be resolved with a new lender.

4. The actions of the borrower in the event of the sale of the mortgage on his loan.

After receiving a notification letter from the Bank on the transfer of rights under the mortgage to another creditor, it is necessary to pay the loan to the creditor (its details are indicated in the notification). This can be done either by opening an account with the bank specified in the notification and transferring money already through new bank, or use the existing account in Plus Bank and make transfers from your previous account. Plus Bank OJSC, in turn, will transfer payments in favor of the new creditor. In this case, a transfer fee will be charged - the bank compensates for its costs of transferring your payments to the recipient (the new owner of the mortgage).

5. What additional costs does the client bear if it is necessary to transfer loan payments to another lender? Why do they arise? How to minimize them?

Let's say that the notice of the sale of the mortgage contains details for transferring payments on the loan, which are different from the previous ones. And a new creditor - non-bank organization(for example, AHML OJSC), i.e. She has an account with another bank. And now it is to this account that payments on the loan should be received. The task of the borrower is to deliver funds to this account in any way that is most convenient or cheap for him. The commission for transferring loan payments is provided not as an additional payment for the loan, but as payment for any transfers to an account in another bank according to the bank's tariffs. The amount of the commission is set by the bank that transfers the payment to the new lender, that is, the borrower can choose any bank with the lowest transfer fee. This option is also possible: the borrower can write an application to the accounting department at the place of work about monthly transfer parts wages as payment on a loan to a new lender.

The court of first instance refused to satisfy the requirements, indicating that when changing the owner of the mortgage, the consent of the defendants AND.The. and neither verbally nor in writing was asked or given, and they were not made aware of it. The plaintiff grossly violated the requirements of the norms of civil law, providing that without the consent of the debtor, the assignment of a claim under an obligation is not allowed, since the identity of the creditor is essential for the debtor., came to the conclusion that the transfer of “My Bank. Ipoteka (OJSC) mortgage of ATTA Ipoteka LLC, which did not entail any legal consequences. The Judicial Board annulled the decision of the court, issued a new decision on the case, while indicating the following.

Section 48. Transfer of Rights to a Mortgage

Under the terms of the loan agreement, the borrower undertook to draw up, with the participation of the creditor, and duly draw up a mortgage and take all the necessary actions on his part to register a mortgage agreement and transfer the mortgage to the body that carries out state registration of rights to real estate and transactions with it. Subsequently, a bond was issued state registration which is produced by the Federal Registration Service. The mortgage bond provides that the pledgee has the right to transfer his rights under this mortgage bond to another person in accordance with the requirements of the current legislation and to transfer the mortgage bond itself.
Both the loan agreement and the mortgage are signed by the borrower himself.

Article 48. Transfer of rights under a mortgage

Thus, selling a mortgage for a borrower, in essence, changing the mortgagee, is a risk-free and painless procedure. However, one very important thing should be considered. important point- the “further” the mortgage is, the more difficult it is to carry out the procedure for removing the encumbrance on real estate. - In this case we are talking about those borrowers who repaid the debt and were going to repay the encumbrance record in statutory okay. After all, if the mortgage is sold, say, to a bank in another region of the country, then after the loan is repaid, the mortgage will have to be transferred at the location of the property, and, based on practice, this takes 2-3 months. While the mortgage is “moving”, it is impossible to withdraw the mortgage, which means that it is also not possible to sell or mortgage the property.
However, there are also banks that do not make mortgages.

Mortgage transfer - is there a risk for the borrower?

A person obligated under a mortgage bond is not entitled to raise any objections not based on the mortgage bond against the claims of the legal owner of the mortgage bond on the exercise of rights under it (clause 6, article 17 of the Law). The decision of the court was canceled and sent for a new trial. (“Summary of judicial practice on civil disputes arising from a property pledge agreement, including real estate(mortgages), considered for 2008 and the 1st half of 2009”, conducted by the Astrakhan regional court). The nature of the credit and mortgage obligations of the defendants indicate the lack of significance of the identity of the creditor for the debtors.

And the owner of the mortgage has the right to sell the mortgage to any person without the permission of the persons obligated by the mortgage: the LLC filed a lawsuit against N.V., E.G. on debt collection loan agreement and foreclosure on the mortgaged property - an apartment.

Real estate mortgage

At the same time, the bank is obliged to notify the borrower in writing about the change of the pledgee, to provide new bank details to which monthly payments must be made according to the loan agreement, - comments Irina Lyashenko, head of the mortgage lending center of the Central Real Estate Agency. When selling a mortgage, the terms of the loan agreement remain the same. Changing the terms of the loan agreement, as well as making changes to the mortgage, is possible only by concluding a bilateral agreement between the pledgee and the pledger. Irina Lyashenko states that all changes in the mortgage must be registered with the Federal Registration Service.

Mortgage debts and collectors: who wins?

Attention

As follows from the case file, the rights under the obligations arising from the loan agreement and the mortgage of the apartment were transferred to the LLC in connection with the acquisition of the mortgage issued to the original mortgagee. Thus, the plaintiff is the defendants' creditor as a result of acquiring a mortgage, and not as a result of the assignment of a claim on obligations. The panel of judges finds justified the objections of the cassator regarding the conclusions of the court on the essential importance of the personality of the creditor for the debtor under the obligations of N.V., E.G.

Indeed, the nature of the credit and mortgage obligations of the defendants indicate the lack of significance of the identity of the creditor for the debtors. And the owner of the mortgage has the right to sell the mortgage to any person without the permission of the mortgagee.

Mortgage: concept, application practice and problems

Based on the specified norms of the law, the mortgage gives the right to receive execution under monetary obligation mortgaged property specified in the mortgage agreement, without presenting other evidence of the existence of this obligation, while it is possible to transfer rights under the mortgage by making an endorsement on it in favor of another person and transferring the mortgage to this person. Mortgage obligations are subject to performance even if the debtor has not been notified about it, but then the performance of the claim to the original creditor is recognized as lawful. The law establishes a closed list of grounds for refusal by the person liable under the mortgage bond (debtor or pledgor) to the bearer of the mortgage bond to exercise his rights under the mortgage bond.

Any mortgage borrower may face the fact that the mortgage on his apartment will be transferred from one bank to another. Should I be worried that the terms of the contract will change? What does it mean for mortgage borrower this procedure? - A mortgage is a registered security, which certifies the rights of the mortgagee to the apartment. The first mortgagee is the bank issuing the loan for the purchase of real estate.

Like any security, a mortgage bond can be sold to any legal entity or individual without the consent of the pledgor (borrower). The transfer of rights under a mortgage is the transfer to a third party of the right to pledge property encumbered with a mortgage, as well as the right to receive performance on a pecuniary obligation secured by a mortgage.

Who is the creditor in the transfer of rights under the mortgage

Further, on the mortgage dated 09/12/2006, the endorsements were taken into account, according to which the rights under this security were transferred to I. LLC, then to P LLC and again to I. LLC. It was on the basis of the last endorsement on the mortgage of LLC "I." and appealed to the Sovetsky District Court with a claim against S., the pledger of property, with a demand to levy execution on the mortgaged residential building and land plot. In accordance with paragraph 3 of Art. 17 of the Law of the Russian Federation "On Mortgage" the presence of a mortgage bond with the mortgagee or the absence of a mark or certificate on it otherwise of partial fulfillment of the obligation secured by the mortgage indicates, unless otherwise proven, that this obligation or, accordingly, part of it has not been fulfilled, except for the case specified in clause 2 Article 48 of this Federal Law.
According to Art.

Federal Law No. 264-FZ of December 22, 2008) (see the text in the previous version) 1. When transferring rights to a mortgage bond, a transaction is made in a simple written form. ConsultantPlus: note. From July 1, 2018, Federal Law No. 328-FZ of November 25, 2017, paragraph two of paragraph 1 of Article 48 is reworded.

See text in a future edition. When transferring rights to a mortgage bond, the person transferring the right shall make a note on the mortgage bond about the new owner, unless otherwise provided by this Federal Law. The note must accurately and completely indicate the name (name) of the person to whom the rights to the mortgage bond have been transferred. ConsultantPlus: note. From July 1, 2018, Federal Law No. 328-FZ of November 25, 2017 amends paragraph four of paragraph 1 of Article 48.

See text in a future edition.

Judge (full name)2 Case (number)

APPEALS DETERMINATION

(date) (address)

Judicial Collegium for Civil Cases of the Court (address) - Yugra, consisting of:

Presiding Judge (full name)7

Judge Voronina S.N., (full name)6

At the secretary (full name)3

Considered in an open court session a civil case on a claim (full name)1 to the Open joint-stock company « mortgage agency Yugra”, to the Open Joint Stock Company “Sberbank of Russia” on recognition invalid contract transfer of rights to mortgage bonds and application of the consequences of the invalidity of a void transaction,

According to the appeal (full name)1 against the decision of the Khanty-Mansiysk district court from (date) by which it was decided:

“The claims (full name)1 against the Open Joint Stock Company “Mortgage Agency of Yugra”, Open Joint Stock Company “Sberbank of Russia” on the invalidation of the contract for the transfer of rights to mortgages and the application of the consequences of the invalidity of a void transaction - leave without satisfaction.

Having heard the report of the judge (full name)6, explanations of the representative of the defendant OJSC Sberbank of Russia (full name)4, who objected to the arguments of the appeal, the judicial collegium

Installed:

The plaintiff (full name)1 filed a lawsuit against OAO Mortgage Agency of Yugra, OAO Sberbank of Russia to invalidate the contract for the transfer of rights to mortgages and apply the consequences of the invalidity of a void transaction, motivating the claims by the fact that he received from OAO Mortgage Agency of Yugra » targeted loan for the purchase of an apartment in the amount of 2,512,276 rubles. (date) a mortgage was drawn up on the acquired using borrowed Money apartment in favor of OAO Mortgage Agency of Yugra. (date) between the defendants, an assignment agreement (number) was concluded, according to which the mortgage of the plaintiff with all the rights certified by it was transferred to Sberbank of Russia OJSC. He considers the deal concluded by the defendants to be inconsistent with the law, since, according to Art. of the Federal Law "On Mortgage", the assignment of rights under a mortgage agreement or an obligation secured by a mortgage, the rights under which are certified by a mortgage, is not allowed. It also indicates that the identity of the creditor was essential for him in the performance of the obligation to repay the loan, however, the plaintiff's consent to the transfer of rights by the creditor was not received.

At the hearing, the plaintiff did not appear, requested that the case be considered in his absence on the grounds set out in the claim.

The representative of the defendant OAO Mortgage Agency of Yugra, the representative of the defendant OAO Sberbank of Russia did not recognize the claim, they believe that the possibility of transferring rights to the mortgage is provided for by Art. Federal Law "On Mortgage" The transaction disputed by the plaintiff fully complies with the specified requirements. The identity of the creditor credit obligation is of no significant importance. There is no special legal nature of the contractual relationship between the plaintiff and OAO Mortgage Agency of Yugra, since the contract mortgage loan s (full name)1 was not concluded within the framework of the Affordable Housing for Young subprogramme, but at the expense of own funds society.

The Court upheld the above decision.

In the appeal (FULL NAME) 1 asks the court decision to cancel, to make a new decision, to satisfy the claims in full. In support of the appeal, he indicated that the court's decision was unlawful, the court incorrectly applied the substantive law, and the circumstances relevant to the case were incorrectly identified. In his arguments, he refers to the fact that in the court decision the agreement between the defendants is indicated as an agreement on the transfer of rights to mortgage bonds No. (number) where the parties are the assignor and the assignee, respectively, this is an assignment agreement. But, the decision states that the transfer of rights to the mortgage under the contract of sale is not prohibited. That is, the nature of the contract is not established. Also, restrictions on the assignment of rights under Art. Art. , Federal Law "On mortgage". The transfer of rights to a security has a special regime, any assignment agreement is void and cannot replace the alienation rule security and substitute for making a mark on the mortgage.

In the objection to the appeal, the representative of the defendant OJSC “Sberbank of Russia” indicates that the court decision should be left unchanged, the appeal should not be satisfied.

At the court session of the appellate instance, the plaintiff, the representative of the defendant OAO Mortgage Agency of Yugra did not appear, they were duly notified of the time and place of the court session, the plaintiff asked to consider the case in his absence. Guided by the articles of the Civil Procedure Code of the Russian Federation, the Judicial Board considers it possible to consider the appeal in the absence of the parties.

The representative of OAO Sberbank of Russia (full name)4 did not agree with the arguments of the complaint and requested that the court's decision be left unchanged.

Litigation on:

Recognition of the contract of sale as invalid

Arbitrage practice on the application of Art. 454, 168, 170, 177, 179 of the Civil Code of the Russian Federation

On a pledge, on a pledge agreement

Judicial practice on the application of the norms of Art. 334, 352 of the Civil Code of the Russian Federation

1. When transferring rights to a mortgage bond, a transaction is made in a simple written form.

When transferring rights to a documentary mortgage bond, the person transferring the right shall make a note on such mortgage bond about its new owner, unless otherwise provided by this Federal Law.

The note must accurately and completely indicate the name (name) of the person to whom the rights to the mortgage bond have been transferred.

The mark must be signed by the mortgagee indicated in the documentary mortgage bond or, if this inscription is not the first, by the owner of the mortgage bond indicated in the previous mark. If the mark is made by a person acting under a power of attorney, information is indicated on the date of issue, the number of the power of attorney and, if the power of attorney is notarized, the notary who certified the power of attorney.