Circumstances in which a pledge of rights is permissible only with the permission of the debtor of the right holder
Part 3 art. 358.2. The Code states exceptions to the basic rule regulated by Part 1 of Art. 358.2. According to the regulations, there are two cases in which the pledge of a right is permissible only with prior permission from the debtor:
— The permission of the debtor is required if, on the basis of law or an agreement between the owner of the right and the debtor, the need to obtain such permission from the debtor is regulated.
Art. 388 regulates the following cases:
- by virtue of Part 2 of Art. 388, the transfer of rights under an obligation in which the identity of the creditor is important for the debtor, without seeking prior permission from the debtor, is prohibited;
- Part 4 Art. 388 states that the assignment of rights to receive non-monetary performance of an obligation is prohibited without obtaining permission from the debtor in the event that making such an assignment will lead to a worsening of the debtor’s position;
- Part 5 Art. 388 establishes that a joint creditor has the right to assign rights to another person only with the permission of other creditors (a different procedure may be established by agreement between such creditors).
— If a legislative act or agreement of the parties stipulates that upon assignment of rights, the transfer of obligations associated with such right also occurs to the acquirer, then obtaining the permission of the debtor is mandatory.
Pledge under the Law
For a long time, in the practice of registering rights to real estate and transactions with it, the question of whether the provisions of Art. 77 of the Law on Mortgage on the emergence of a mortgage by force of law when the price (part of the price) of an agreement for participation in shared construction is paid at the expense of credit funds or funds from a targeted loan?
At present, this ambiguity can be considered completely resolved. The Presidium of the Supreme Arbitration Court of the Russian Federation in Resolution No. 13905/10 of January 25, 2011 indicated that Art. 77 of Federal Law N 102-FZ “On Mortgage (Pledge of Real Estate)” applies, inter alia, to the pledge of rights of claim under an agreement for participation in shared construction when paying the price (part of the price) of such an agreement using credit funds or targeted loan funds. In this case, the pledge by force of law arises from the moment of state registration of the agreement for participation in shared construction. State registration of a pledge by force of law is carried out by the registering authority without submitting a separate application and without paying a state fee.
At the same time, as the Presidium of the Supreme Arbitration Court of the Russian Federation indicated, the interpretation of legal norms contained in Resolution No. 13905/10 of January 25, 2011 is generally binding and is subject to application when arbitration courts consider similar cases.
The Supreme Court clarified the procedure for foreclosure of collateral securing the execution of a loan agreement
The Supreme Court issued Ruling No. 305-ES20-12714 in case No. A41-46643/2019 on a dispute regarding the bank’s foreclosure of the guarantor’s mortgaged property under a loan agreement and its sale at auction.
The appeal and cassation did not agree with the conclusions of the Moscow Arbitration Court, which satisfied the bank’s claim
In September 2021, PJSC JSCB Absolut Bank provided Podium Market LLC (after a name change - IPK Atlas LLC) with a non-revolving credit line with an issuance limit of RUB 1.9 billion. The guarantor of the borrower was Rublyovka JSC, which pledged three land plots in the Moscow region as collateral to the bank under agreement No. 094/1-15, which was concluded as a subsequent pledge of real estate. The fact is that all three plots were already pledged by the bank due to the pledge agreement No. 094-15 previously concluded with Rublyovka JSC, which ensured the fulfillment of the borrower’s obligations under the agreement on the provision of a revolving credit line dated September 1, 2015. Relevant records on encumbrances were entered into the Unified State Register.
Since the borrower partially repaid the loan issued to him, and from January 10, 2021, did not timely pay interest on the use of the funds lent to him, on July 11, 2021, the bank presented him with a demand for early fulfillment of monetary obligations under the loan agreement, which was never fulfilled . Subsequently, the IPK Atlas company was declared bankrupt (case No. A40-196951/2017), and the bank’s claims were included in the third line of the register of creditors’ claims. The total amount of the borrower's debt under the loan agreement amounted to RUB 969 million.
Next, the bank filed a claim with the Moscow Arbitration Court against Rublyovka JSC to foreclose on the plots of land pledged under the pledge agreement by selling them at public auction with the determination of the initial sale price. In turn, the mortgagor filed a counterclaim to recognize as absent the encumbrances in the form of mortgages registered on the basis of two pledge agreements. The company believed that the first agreement terminated due to the termination of the obligation secured by it, and the second - due to the bank’s failure to file a claim against the pledgor within a year from the date the borrower’s obligation became due.
The court satisfied the bank's claim, confirming its right to receive satisfaction from the value of the pledged property by selling it at public auction, setting the initial sale price in an amount equal to 80% of the value determined by a forensic examination. At the same time, the court considered that the pledge did not terminate, since the claim was brought by the bank to the arbitration court on May 28, 2021 - within a one-year period from the date of fulfillment of the obligation secured by the pledge. Refusing to satisfy the counterclaim, the court indicated that the first pledge agreement terminated due to the termination of the obligation secured by it, in fact, there is no dispute between the parties about the law in this part, and the cancellation of entries in the Unified State Register can be made in the manner prescribed by law.
Subsequently, the appeal overturned this decision and refused to satisfy the claim of Absolut Bank, and the counterclaim was satisfied and the encumbrances in the form of mortgages registered on the basis of two pledge agreements in relation to the disputed land plots were declared absent. The appeal found that the pledge terminated before the pledgee filed a claim to foreclose on the pledged property, and the first pledge agreement was terminated due to the termination of the obligation secured by it and the pledgor’s right to file a claim in court aimed at terminating the registered encumbrance. In turn, the district court upheld the appeal ruling.
The Supreme Court upheld the findings of the first instance
In its cassation appeal to the Supreme Court, PJSC JSCB Absolut Bank referred to significant violations of the law by appeal and cassation. At first, Supreme Court Judge Oleg Shilokhvost refused to accept the applicant’s complaint, but eventually the case was submitted to the Judicial Collegium for Economic Disputes of the RF Armed Forces after the intervention of its chairman Irina Podnosova.
After studying the materials of the case, the Judicial Collegium for Economic Disputes noted that the pledgor under the pledge agreement No. 094/1-15 is not a debtor under the loan agreement, the pledge agreement does not establish its validity period, and in the loan agreement the loan repayment period is defined as August 16, 2021 Accordingly, this pledge agreement is terminated provided that the creditor does not file a claim against the pledgor within a year from the date of fulfillment of the obligations secured by the pledge under the loan agreement, while the bank submits a demand to the borrower dated July 11, 2021 for early fulfillment of obligations under the loan agreement does not reduce the validity period of the collateral. Since the bank filed a lawsuit on May 28, 2021, the lien regarding the amount of the outstanding loan was not terminated. In this regard, the conclusion of the court of first instance to foreclose to repay this debt at the expense of the pledged property is justified.
As the Supreme Court explained, overdue time payments were included in the register of claims of the debtor’s creditors on April 10, 2021, therefore, before this date, the deadline for fulfilling the obligations secured by the pledge in the sense of Art. 367 of the Civil Code of the Russian Federation, and, taking into account the date of the bank’s filing of the claim, the validity of the pledge in relation to the amounts of interest for using the loan and penalties for late payment has been terminated and foreclosure on the subject of the pledge to repay the specified debt is impossible. However, this circumstance does not affect the correctness of the trial court’s conclusion about the need to foreclose on the mortgaged property, the Supreme Court pointed out.
“The conclusions of the courts of appeal and cassation on the termination of the pledge agreement No. 094/1-15 due to the bank’s untimely filing of a claim for foreclosure on the pledged property and the calculation of the one-year period for filing a claim against the pledgor from the date of early demand for performance under the loan agreement, underlying judicial acts refusing to satisfy the initial claim contradict the provisions of Art. 367 of the Civil Code of the Russian Federation and are unfounded. It is also correct that the court of first instance concluded that there are no legal grounds for satisfying the counterclaim to recognize the encumbrance in the form of a mortgage registered on the basis of pledge agreement No. 094-15 as absent,” the Court’s ruling noted.
The Supreme Court added that in the absence of the possibility of submitting a joint application to the registration authority by the mortgagor and the mortgagee, the mortgage record can be extinguished based on a court decision. If the mortgage has been terminated for legal reasons, but is listed in the Unified State Register as existing for all third parties, then the interested party has the right to apply to the court with an appropriate demand aimed at terminating the registered encumbrance. Thus, by filing a counterclaim, the Rublyovka company had to prove that the entry in the Unified State Register violates its right, which cannot be protected in any other way. Accordingly, the court of first instance correctly concluded that the company’s right in this part can be restored by applying in the manner prescribed by the Law on Mortgage and the Law on State Registration of Real Estate to the Office of Rosreestr for the Moscow Region with an application for cancellation of encumbrance records disputed land plots. At the same time, the pledge on the disputed land plots on the basis of pledge agreement No. 094-15 was terminated by force of law in connection with the termination of the obligation secured by the pledge and there is actually no dispute between the parties in this part, and the bank did not shy away from contacting the registering authority with an application for termination original mortgage.
In this regard, the Supreme Court canceled the judicial acts of appeal and cassation, leaving the decision of the Moscow Court of Justice in force.
AG experts commented on the Court’s findings
Lawyer of the Moscow AP Vyacheslav Golenev explained that the courts have been concerned about the termination of bail and surety for 20 years: “Despite numerous clarifications, the interpretation given many times in several decisions of the Plenums of the Supreme Arbitration Court and the Supreme Court of the Russian Federation, the courts still differ in their understanding of these issues.” .
According to him, based on clause 6 of Art. 367 of the Civil Code of the Russian Federation, the algorithm for applying the rules on securing obligations is as follows:
- firstly, it is checked whether the guarantee agreement specifies the period for which it is given. In this case, the guarantee is terminated upon expiration of this period;
- secondly, if the duration of the guarantee is not established, then it is terminated provided that the creditor, within a year from the date of fulfillment of the obligation secured by the guarantee (i.e., the main obligation, for example, to repay a loan), files a claim against the guarantor;
- thirdly, when the deadline for fulfillment of the main obligation is not specified and cannot be determined or determined by the moment of demand, the guarantee is terminated if the creditor does not bring a claim against the guarantor within two years from the date of conclusion of the guarantee agreement.
