Publication date: 06.06.2024
lawyer, 23 years of experience in enforcement.
The company was declared bankrupt by the court, in connection with which the liquidation process was started. After that, the bank appealed to the court with financial statements against the corporation, noting that the corporation's financial statements depend on the pledge of the debtor's property as a property manager under the loan agreement. Does the bank have the right to declare its claims to the enterprise as a property manager during liquidation? If so, what percentage of the guarantor is responsible for the mortgage?
The bank, as a mortgagee, has the right to foreclose on the debt in the event that the mortgagor is declared bankrupt or in the event of its liquidation, it acquires legal capacity to foreclose on the subject of the mortgage. In addition, it is extremely important that the claims of creditors secured by the debtors' property are entered in the register of creditors' claims separately from the claims of bankruptcy creditors, regardless of whether the debtors file claims or at any stage of the bankruptcy process. . That is, even after the expiration of the period established by the Bankruptcy Law for submitting an application for recognition of the creditor's claims against the debtor. After the court recognizes the legality of monetary claims against the debtor, they are included in the list of creditors' claims as secured by the debtor's property.
If the borrower under a loan secured by the guarantor's collateral does not repay the loan or does not fulfill his obligations under the contract, the mortgagee, i.e. the bank, has the right to pay the subject of the mortgage in full. primarily to other creditors.
A property guarantor, who is responsible for paying the debt with his property, is not a borrower under primary credit agreements, nor a recipient of credit funds. As a result, this type of property owner cannot repay the entire debt.
11 of the Mortgage Law, it is established that the owner of the property is responsible for the obligation of the mortgagee to pay the debt in the event of default by the latter of the main obligation in accordance with the value of the subject of the mortgage. As a result, the property owner's liability as a mortgagor is limited to the value of the pledged property.
Attention should be paid to the fact that the monetary value of the claims must be documented, as well as the costs for the actual implementation of the pledge. In the case of realization of the subject of the mortgage in accordance with the requirements of the Bankruptcy Law, the mortgage and property guarantee are terminated in full, since the purpose has been achieved.
Funds received from the sale of mortgages cannot be used to pay other creditors. As a result, the bankrupt's debt is repaid at a high rate in exchange for the latter's property, which is the subject of security.
In summary, we note that the bank has the opportunity to repay all the mortgage debt of the mortgagee to the beneficiary of the property guarantee, minus the cost of the actual sale of the subject's property.
The Bankruptcy Law does not contain other ways of determining secured monetary claims, except for the Mortgage Law.
Importantly! Recognizing the creditor's claims declared by the bank, which are secured by the pledge of the debtor's property, the courts must be guided by the contractual value of the subject of the mortgage, which is defined in the contract. For example, if the bank seized the guarantor's property for an amount equal to the borrower's total debt on the loan, this should be considered illegal, since the guarantor is responsible for the entire debt.
Specialists of the legal service "Consultant" will provide legal services for business and help in such matters as preparation of a claim to a debtor, preparation of the contract, contract preparation , counterparty verification, claim to the debtor, demand to the debtor, and support at all necessary stages to resolve the relevant issue.
