Can a mortgaged apartment be seized?

Is it possible to seize a mortgaged apartment?

The article is current as of: January 2021.
In this article, lawyer Alexey Knyazev answers the popular question: “If an apartment is mortgaged, can bailiffs seize it?”

Can a bailiff take away a mortgaged apartment?

For an unpaid loan, the bailiff imposed a ban on the register. Actions with an apartment purchased with a mortgage and pledged to another bank. There are no mortgage debts. Can the bailiff take away this apartment if it is the only home? Can the bank that provided the mortgage take the apartment back because of this problem?

The pledged property may be seized in exceptional cases if no other property is available. In this case, debts to the mortgagee (mortgage bank) are repaid first.

Considering that you have no debts to the mortgagee bank, and the procedure for forced sale of real estate itself is very costly and ineffective (it is sold cheaply at auction), it is unlikely that it will come to this.

Calculate for yourself how much you still owe on the mortgage principal and what will be left after selling your apartment, it may not be enough for the mortgage, not to mention other creditors.

How does the bailiff seize an apartment if the apartment has a mortgage?

Many debtors of mortgage loans are interested in the question: “Is it legal to seize an apartment by bailiffs if the apartment is under mortgage?” After all, the apartment is their only place of residence. You will find the answer in this article.

The tax police, customs and judicial authorities have the right to impose such an encumbrance as a seizure of a property.

Some misconceptions of citizens regarding the work of bailiffs

Yes, undoubtedly, the law contains a rule prohibiting the filing of a claim against a single dwelling. But this restriction does not apply to mortgages.

When placing a mortgage on an apartment, bailiffs do not assess the market value of the property. This is the prerogative of the court. When the mortgagee applies to the court with a request to foreclose on the property, he immediately announces its initial value. The defendant can attract an expert and revise this value only during the trial.

In addition, bailiffs have nothing to do with the sale of seized property. Its implementation lies on the shoulders of Rosimushchestvo (Federal Agency for State Property Management). In order to increase the transparency of the auctions, a bailiff is required to be present at them.

Information about future auctions is open to all citizens. You can view all such events on the website torgi.gov.ru. As practice shows, almost 90% of all enforcement proceedings on real estate objects involve mortgaged apartments.

Why can an apartment be seized by bailiffs if the apartment is under mortgage?

The main reason for foreclosure may be personal debts or debt obligations of one of the co-owners of the property: significant non-payments on a mortgage loan, tax debts, debts to other legal entities. or physical persons.

There are, of course, situations when any property disputes in court, claims for compensation for damage caused or division of property between spouses become the basis for arrest.

Even if the debtor agrees with the bank on an installment plan or “mortgage holiday,” the financial institution will still take measures to seize the residential property for greater reliability.

Restrictions on the apartment that has been foreclosed on:

• Tenants cannot be allowed into it.

• Cannot be exchanged, gifted to anyone or bequeathed.

• It is prohibited to pawn it.

How to remove a seizure?

The procedure for action in such a situation, of course, depends on who exactly imposed the arrest and in connection with what circumstances

If there is a mortgage debt, ideally the imposed encumbrance will be removed when the defaulter resumes payments. When filing claims, most banks immediately prescribe this condition.

Only the state has the right to cancel the arrest. the structure that imposed it. If there were other debts, then after they are repaid, the data is transferred to the registration service and the encumbrance is removed.

It is important to know

Each debtor has the legal right to submit an application to the court for a deferment in the execution of the decision or an installment plan for the payment of the announced debt. Most of the people asking for a deferment have minor children. If there are compelling and respectful arguments, courts often cooperate in such situations.

Despite the seizure, the debtor retains the right of ownership. If the defaulter does not evade the enforcement actions of the bailiff and accepts on a voluntary basis the right to protect this property, then he will remain in his home until the state is abolished. registration and transfer of ownership into other hands.

When the debtor hides from the bailiffs, a specialized organization is appointed as the responsible custodian of the residential property.

If you have debt on a consumer loan or car loan, then other articles may be useful to you: “Salary card seizure” and “Bank account seizure”.

If you don’t have time to travel to bank offices, but need money urgently, then through our convenient service you can apply for a credit card online!

Can a bank seize a mortgaged apartment for debts and sell it?

The conditions under which the creditor bank has the right to seize real estate from the borrower, as well as the conditions that do not allow this, are considered. Solutions to the problems of a mortgaged apartment are proposed

The relationship between the owner of a mortgaged apartment and the banking organization that provided a loan for the purchase of real estate is regulated by the federal law “On Mortgage” No. 306-FZ.

This regulatory act defines the conditions that allow and do not allow the organization that provided credit to the mortgage borrower to demand satisfaction of its rights by seizing and selling the debtor's collateral real estate.

It should be noted that the content of the agreement executed by the lender and the mortgage borrower will also be taken into account during the trial. And in some situations, it is the text part of the mortgage agreement that determines the court's decision. Therefore, reviewing the contractual terms of the mortgage with the participation of an experienced real estate lawyer is highly recommended for the borrower.

When does the bank have the right to demand the sale of a mortgaged apartment?

The right to foreclose on real estate secured by a mortgage belongs to the creditor bank in accordance with Article 50 of Law No. 306-FZ. However, starting the process of arresting and selling an apartment for early repayment of debt to a banking organization is possible only under the conditions specified by this law:

the borrower does not fulfill or does not properly fulfill its payment obligations (Article 50, paragraph 1);
the borrower concealed at the time of registration of the agreement the existence of rights of third parties to the mortgaged (collateralized) apartment (Article 12);
the borrower does not properly ensure the condition of the mortgaged apartment (Article 35);
the borrower donated, sold, exchanged or made a collateral (mortgage) apartment in the form of a property contribution without an agreement with the creditor bank (Article 39);
The apartment, which is encumbered by a mortgage, is forcibly seized by government agencies with the provision of other real estate (it becomes the subject of collateral) or financial compensation (Article 41).

Also, Article 46 of the Law “On Mortgage” establishes the right of priority in repaying debts to the lender if the borrower has reissued the mortgage to another banking organization.

When a mortgage bank does not have the right to demand the sale of an apartment

In addition to the conditions that allow a banking organization to insist on the sale of a mortgaged apartment, the provisions of the Law “On Mortgage” establish a number of conditions under which the creditor bank cannot demand immediate repayment of the debt, incl. sale of mortgage real estate. They are listed in paragraph 3 of Article 54.1:

the borrower's debt on payments (the amount of the unfulfilled obligation) is less than 5% of the cost of the apartment (the subject of the mortgage);
the borrower's payment delays have not exceeded 3 months.

When can a bank take an apartment for debts?

the borrower's debt on payments (the amount of the unfulfilled obligation) is less than 5% of the cost of the apartment (the subject of the mortgage);
the borrower's payment delays have not exceeded 3 months.

However, the right to demand the sale of the mortgaged apartment arises from the mortgage bank if the deadlines for making payments were violated more than three times during the year (Article 54.1, clause 5). Even if four or more cases of delay were insignificant - only a few days.

According to the terms of paragraph 1 of Article 446 of the Civil Code of the Russian Federation, recovery against the debtor’s residential premises is inapplicable if it is the only one suitable for his residence. But this condition does not apply to a mortgaged apartment, since this property has a known encumbrance, since it is the subject of a loan secured by the borrower to a banking organization.

Those. If there are repeated (more than three) violations of payment terms, the bank has the right to initiate procedures for the seizure and sale of the mortgaged apartment, even if this is the borrower’s only home.

The bank has the right to take away any mortgaged housing for debts. The apartment can be taken away even if:

the debtor has nowhere else to live
part of the apartment belongs to children
Minor children and relatives are registered in the apartment.

The loan agreement states that the bank has the right to take away the mortgaged apartment for debts. But case law does not allow banks to select housing if:

The bank can take away the apartment not only with a mortgage loan, but also when the housing is pledged under another loan. For example, an apartment that they inherited was pledged against a consumer loan. This type of collateral works like a mortgage: if you don’t pay off the loan, you lose the mortgaged apartment.

The bank may require the loan to be repaid ahead of schedule if there have been 3 late payments in a year. If the debtor cannot repay the loan at the request of the bank, the bank will sue. The size of the delays does not matter. Even if the borrower has not paid an additional 5 kopecks, the bank will consider it a debt.

By decision of the court, the mortgaged apartment will be taken away to repay the loan.

When mortgage payments stop coming in, the bank transfers the agreement to the collection department. First, bank employees find out why the borrower does not pay. They often offer new conditions for payments: take out a credit holiday, restructuring or refinancing a loan.

If the debtor does not respond or does not take action to repay the loan, then calls from the bank may begin with threats to take away the home. This is unpleasant, but not critical.

If the debtor does not communicate or refuses to pay, the bank files a lawsuit.

3a overdue apartment loans can be taken away for debts, even if the apartment was not pledged to the bank. In this case, the bank’s actions depend on the amount of real estate of the debtor.

3a late payments, the bank can take away the “surplus” if the debtor has several apartments or houses.

The only chance to save a second apartment is to prove that the loan debt is much less than the cost of housing. A comparison of the market value of the apartment and the amount of debt must be provided to the bailiff when arresting the apartment. If after this an arrest is imposed, the debtor can appeal the actions of the bailiff in court.

Before suing the debtor, the bank finds out whether the debtor has property that can be taken away. Even if the bank does not know about the availability of a second apartment before the court hearing, this does not mean that the property will not be put up for auction.

If the court makes a decision in favor of the bank, the bailiffs will receive data on all the debtor’s real estate from the Register. The bailiff will be able to sell the found property at auction and return the money to the bank.

Reasons for arrest

People who purchased an apartment with a mortgage first of all wonder whether the actions of creditors in seizing and further selling the home are legal. Let's start with the fact that the bank is not the owner of the real estate, and therefore has no reason to put it up for sale. The financial institution in such a situation is the mortgagee. The seizure procedure is in no way within the competence of the bank. Nevertheless, he has every reason to file a lawsuit, petitioning for the seizure of the apartment with its further putting it up for sale (auction) in order to compensate for losses.

The right to recover real estate held as a mortgage by banks is regulated by Art. 50. A prescribed right can only be sold after a decision has been made by the court. According to the law, there are a number of provisions that may lead to the seizure of an apartment as mortgage collateral:

failure to fulfill or inadequate fulfillment of the owner's obligations to repay the loan;
concealment, when concluding an agreement, of information that third parties have rights to an apartment purchased with a mortgage;
failure to comply with conditions ensuring the safety of collateral property;
sale, donation, exchange, contribution as a property contribution without informing the creditor.

Debtors should not sigh calmly, even if an agreement has been reached with the bank on installment plans or “mortgage holidays.” Financial institutions in all cases strive to minimize their risks, and under certain conditions they may take action to seize the property.

What to do if you are arrested

So that the debtor cannot complete the purchase and sale transaction, donate the home, or does not find some other method of alienation that would give him the opportunity to remove the apartment from the list of property subject to probable recovery by the creditor.

The court has the right to seize the only home. The debtor is prohibited from putting up residential premises for sale, including partial sale, and leasing them. He will also not be able to move in, assign a person or discharge someone. It is absolutely prohibited to perform any legally significant action regarding real estate. Nevertheless, everyone who lived and was assigned to this apartment before the court’s decision to seize it can live here as before.

Can an apartment that has a mortgage be seized for debts on other loans?

Hello, in short, no, this is out of the question.

Of course they can, but the mortgagee will have a priority right to receive debt from the cost of this apartment over other creditors.

If you need more detailed advice or assistance in this matter, please contact me by email. mail or call, contacts are listed below. I'll be glad to help.

Dear Anonymous. In accordance with the Federal Law dated July 16, 1998 N 102-FZ (as amended on October 5, 2015) “On mortgage (real estate pledge),” a mortgage ensures payment to the mortgagee of the principal amount of the debt under a loan agreement or other obligation secured by a mortgage in full or in part stipulated by the agreement about mortgages. According to Article 50 of the said Federal Law, the mortgagee (bank) has the right to foreclose on the property pledged under a mortgage agreement in order to satisfy, at the expense of this property, claims caused by non-fulfillment or improper fulfillment of the obligation secured by the mortgage, in particular, non-payment or untimely payment of the debt amount in full or in parts.

This means that for debts on other loans it is impossible to seize an apartment that is mortgaged under a specific loan.

What if the apartment you live in is not the only one?

If the housing is not the only one, then the creditor has the right to foreclose on it.
It is worth knowing that foreclosure on a home can only be filed on the basis of a judicial act that has entered into legal force and only by a bailiff. Only bailiffs can seize an apartment for debts.

The rules under which an apartment can be repossessed for debts have not changed in 2020.

According to the Law “On Enforcement Proceedings”, collection is primarily directed to funds belonging to the debtor. If there are no funds or they are insufficient, then the bailiff has the right to foreclose on other property, first movable and then immovable, including housing.

The debtor, in turn, has the right to indicate the property that should be foreclosed on first. The bailiff is obliged to consider this application.

Important! If the amount of debt is less than 5% of the value of the property or if the loan is overdue for less than 3 months, the housing cannot be foreclosed on.

Therefore, many borrowers may not worry that they may lose their home due to the fact that they are in arrears.
However, you still need to fulfill your obligations. It is also important to note that collectors cannot take away an apartment for debts; this can only be done by bailiffs by court decision. “Another way to lose an apartment is to not pay child support for a long time. If the amount of debt is commensurate with the cost of the residential premises, the bailiff has the right to seize and sell the apartment,” added Vladimir Savchenko, General Director of APRI Fly Planning. Consequently, the apartment can be taken away for alimony debts.

Constitutional Court of the Russian Federation: the period of seizure of property in a criminal case should have a limit

The spouses did not agree with the conclusion of the appellate court and appealed it to the Supreme Court of the Russian Federation. The Supreme Court of the Russian Federation drew attention to the fact that the appeal did not indicate on what grounds it rejected the circumstances that the first instance had established on the issue of proportionality of the debt.

An apartment can only be seized by a court decision upon a claim by an interested party. However, the court will make a positive decision only if there is documentary evidence of the existence of a compelling reason to do so. But if this home was not purchased with a mortgage and is the owner’s only place of residence, then it cannot be foreclosed on. When it comes to seizing real estate, there are no restrictions in the laws regarding the method of acquiring such property. Therefore, an apartment may be seized, regardless of whether it was purchased, received as a gift, by inheritance, by exchange or in another way.

If a ban is imposed on other grounds, the owner can protest the imposed restriction and have it removed.

More than once we have been pleased with the publications in which you, dear colleagues, described non-standard approaches and solutions that led to positive results in cases. Today I bring to your attention a publication about how, by using a few “ear tricks,” it was possible to achieve a positive gap.

However, in Art. 56 of the Law of Ukraine “On Enforcement Proceedings” provides for the ability of the executor, if necessary, to limit the right not only to dispose of real estate, but also to use it.

What does this mean for debtors? Lots of trouble! If it is impossible to pay the loan, a prompt sale is the only acceptable option to resolve the problem. But selling real estate at auction is extremely unprofitable for its owners.

If such a service is not provided by the bank, then the bailiffs can take over the storage of the property. If after 2 months the debtor does not take the property, all the property will be transferred for sale. The proceeds will be transferred to the debtor. If they are not in demand, then after 3 years the money will be transferred to the state treasury. Can bailiffs sell a mortgaged apartment? Yes, but this can only be done after a court decision, and everyone who is faced with similar issues should remember this. The Bailiff Service is an executive body that has the right to perform only the actions prescribed to it.

If the property was seized by court order, it is necessary to resolve the issue for which the claim was filed.

The Supreme Court decided when it is impossible to take away a mortgaged apartment for debts

Unpaid debt could cost your apartment

In the summer of 2006, spouses Sergei and Anna Nazin* took out a loan for 1.2 million rubles from Bashekonombank. to buy an apartment. The loan was secured by the collateral of this housing. Through a chain of transactions, the rights under the mortgage were transferred to Vladfinance LLC in the fall of 2015. Over the next two years, the debtors fell behind on the loan payments several times, so the creditor decided to collect from the Nazins the entire debt remaining at that time - 458,379 rubles. In addition, the applicant demanded that the defendants pay interest on the loan in the amount of RUB 80,432. and for using the loan at the rate of 14% per annum, as well as a late fee - 115,992 rubles. Considering this size of demands, the plaintiff asked to foreclose on the mortgaged apartment, determining its initial sale price in the amount of 1.28 million rubles.

The Oktyabrsky District Court of Ufa awarded Vladfinance only 145,584 rubles. and did not put the apartment up for auction. In support of this decision, the first instance pointed to the disproportion of the remaining loan debt to the value of the mortgaged property. The appeal overturned the act of the lower court and recovered 298,811 rubles in favor of the applicant, based on the calculation of the debt that the plaintiff presented. In addition, the Supreme Court of the Republic of Bashkortostan considered that in a controversial situation the court has no grounds to refuse the company’s request to foreclose on the apartment.

The Supreme Court indicated that the lower court did not take into account

The Nazins did not agree with the conclusion of the appellate court and appealed it to the Supreme Court of the Russian Federation. The Supreme Court drew attention to the fact that the appeal did not indicate on what grounds it rejected the circumstances that the first instance had established on the issue of proportionality of the debt. The judges of the Supreme Court emphasized that in such cases, foreclosure on property can be avoided if the debtor committed an extremely minor violation, and the amount of the pledgee’s claims is clearly disproportionate to the value of the pledged asset.

In addition, the judicial panel for civil cases of the Supreme Court noted that in the case under consideration, the lower court had to accurately calculate the number of delays of the debtor in payments, their period and take into account the market value of the apartment (case No. 49-KG19-5). Since the appellate instance did not do any of this, the “troika” of judges of the Supreme Court, chaired by Vyacheslav Gorshkov, canceled the act of the Supreme Court of the Republic of Bashkiria and sent the case back there for a new trial. But it was not possible to consider this dispute on the merits in the second round: it abandoned its claim (Case No. 33-10219/2019).

Pravo.ru experts: “The appeal did not justify the decision”

The Supreme Court of the Russian Federation once again pointed out the extremely important importance of a full and comprehensive examination of evidence by lower authorities, emphasizes the significance of the decision under discussion Oksana Peters, partner at Eversheds Sutherland Eversheds Sutherland Federal Rating. group Bankruptcy (including disputes) (mid market) group Foreign trade/Customs law and currency regulation group Intellectual property (Protection of rights and litigation) group Labor and migration law (including disputes) group Pharmaceuticals and healthcare group Environmental law group Corporate law/Mergers and takeovers (mid market) group Antitrust law (including disputes) group Land law/Commercial real estate/Construction group Tax consulting and disputes (Tax consulting) group Natural resources/Energy group TMT (telecommunications, media and technology) group Financial/Banking law group Arbitration legal proceedings (major disputes - high market) Company profile. After all, the appeal did not justify its decision in any way, notes lawyer Avelan Avelan Federal Rating. group Land law/Commercial real estate/Construction group Arbitration proceedings (medium and small disputes - mid market) group Dispute resolution in courts of general jurisdiction Company profile Veronica Velichko: “She said nothing about the proportionality of the debt and the cost of the apartment, or why she does not agree with decision of the first instance."

The controversial situation is complicated by the fact that in this case it is necessary to take into account the wording of the Mortgage Law, which was in force when concluding the loan agreement in 2006, notes Elena Muratova, advisor to Kazakov and partners Kazakov and partners Federal Rating. group Bankruptcy (including disputes) (high market) group Environmental law group Antitrust law (including disputes) group Natural resources/Energy group Land law/Commercial real estate/Construction group Criminal law 12th place By revenue per lawyer (more than 30 lawyers) 25th place By number of lawyers 27th place by revenue Profile. In the current version, the Law on Mortgage allows foreclosure on the mortgaged property if the debtor has missed payments on the loan more than 3 times in a year, emphasizes lawyer Yukov and Partners Yukov and Partners Federal Rating. group Dispute resolution in courts of general jurisdiction group Arbitration proceedings (major disputes - high market) group Bankruptcy (including disputes) (high market) group Criminal law 4th place By number of lawyers 12th place By revenue 17th place By revenue per lawyer (more than 30 lawyers) Company profile Alexander Soloviev.

When a loan apartment will not be taken away for mortgage debts

1)The amount of debt is less than 5% of the cost of housing*

2) Mortgage loan payments are less than 3 months late

*In practice, there are decisions when the courts refuse to put an apartment up for auction if the debt does not exceed 25% of the cost of the apartment, says Velichko.

An “unscrupulous” debtor cannot protect himself legally in such a situation, immediately warns Denis Murdalov, lawyer at the Law Office “A2” Law Office “A2” Federal rating. group Arbitration proceedings (major disputes - high market) group Corporate law/Mergers and acquisitions (mid market) group Dispute resolution in courts of general jurisdiction. At the same time, mortgage borrowers may be mistaken that their only home cannot be sold for debts, notes managing partner of the consulting group Divius Divius Regional Rating. Ivan Gusev. But the courts take a pro-creditor approach - they precisely apply the criteria specified in the law, says Yuri Vodopyanov from Land Law Firm Land Law Firm Federal Rating. group Land law/Commercial real estate/Construction group Dispute resolution in courts of general jurisdiction group Private capital group Arbitration proceedings (major disputes - high market) Company profile. If the bank does not receive mortgage payments for more than three months, the borrower has every chance of being left without an apartment.

Therefore, if money runs out, Gusev advises not to remain silent - you must immediately contact the bank with a request to refinance the mortgage or get a deferment of payments. Murdalov recommends insuring loss of temporary solvency or late payments - this is “an excellent way to protect against the risks of foreclosure.”

The courts apply the criteria mechanically, although the category was originally evaluative, Vodopyanov notes. In 2012, the Constitutional Court emphasized the need to “achieve a balance of the rights and interests of creditors and debtors” (Decision No. 2289-O of December 24, 2012). To do this, it is necessary to evaluate a number of circumstances - the reason for failure to fulfill obligations, the position of the parties, and so on, the expert continues. But then Art. 348 GCs were supplemented with specific criteria (three months and 5%). And now the work of the court has been reduced to the use of a fairly simple algorithm, Vodopyanov summarizes.

Alexey Malakhovsky

Supreme Court of the Russian Federation
Civil process

Reasons for arrest

failure to fulfill or inadequate fulfillment of the owner's obligations to repay the loan;
concealment, when concluding an agreement, of information that third parties have rights to an apartment purchased with a mortgage;
failure to comply with conditions ensuring the safety of collateral property;
sale, donation, exchange, contribution as a property contribution without informing the creditor.

If the court decides to lift the arrest

As a rule, if the owner has presented all the documentation and receipts, the judge will accommodate the debtor. Immediately after the court decision enters into legal force, the seizure imposed on the apartment is lifted. As soon as the arrest is lifted, the owner will regain the right to dispose of his property.

Important

However, it may happen that the debtor is not able to fulfill all the requirements of the judge. In this case, the solution will be unsatisfactory, and turning to other authorities will be pointless and ineffective.

When property is seized

Seizure of property is an unpleasant, but the only possible procedure for ensuring the repayment of debt. Only the threat of losing his own property, acquired with blood and sweat, forces the debtor to seek opportunities to pay it. This extreme measure is also aimed at protecting the legal rights and interests of the person for whose benefit the property is seized and restoring peace in relations. If you have a debt and have nothing to pay it with, be prepared for the fact that the person to whom you owe it will go to court. Then the FSSP, relying on the court decision to collect the debt, will take all legal means to repay the debt to your creditor. The tax and customs services can seize the property. The latter have the right to use this measure when collecting tax debts. A ban on the sale of property may be imposed even before a court hearing on the basis of a claim by a creditor. This is done to ensure that the defendant is unable to sell the property for fear of its further seizure. This status implies that the defendant is allowed to use his property for its intended purpose, but he does not have the right to take any actions to dispose of the property. Another option when it is possible to seize property is a resolution of the investigator or an official of the investigative agency if there is a civil claim from the victim as part of a criminal investigation. Similar actions are carried out in relation to real estate that has become the subject of a fraudulent transaction.

Is it possible to seize collateral property?

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The bank has the right to take away any mortgaged housing for debts. The apartment can be taken away even if:

the debtor has nowhere else to live
part of the apartment belongs to children
Minor children and relatives are registered in the apartment.

The loan agreement states that the bank has the right to take away the mortgaged apartment for debts. But case law does not allow banks to select housing if:

Is it possible to seize a mortgaged apartment?

Encumbrances may be imposed on the real estate (strangers, minor children are registered in the apartment, the apartment is pledged to the bank, etc.) and the subject may not have the authority to alienate the real estate (or may not obtain the consent of the spouse for the transaction, including former). All these circumstances can lead to serious losses in the future.

The opinion that bailiffs cannot seize housing that is the only one is erroneous. It is possible to impose an encumbrance on such real estate; another thing is that a family cannot be evicted from an apartment, but they also have no right to sell it until the arrest is lifted.

It happens that interest (especially when repaying a debt early) is calculated incorrectly and the minimum amount of debt remains on the credit account. Gradually, penalties and fines are accrued on this small amount, as a result of which a conscientious payer turns into a debtor.

There is an exit

There is no way to allow the mortgaged apartment to be seized. Such an incident does not happen unexpectedly - financial organizations try to collect the debt in advance using other methods. However, if the owner realizes that trouble is about to happen, a solution can be found by immediately selling the apartment. You won't be able to do this on your own. Of course, it is difficult to sell expensive real estate quite quickly, and it is difficult to sell one burdened with a mortgage, since buyers are reluctant to agree to such problematic transactions.

What time can the bailiffs arrive?

If enforcement proceedings are initiated, seizure of property and other property is used as one of the measures. Often restrictions are placed on mortgage accounts. As a result, the bank does not receive the money that the citizen transferred. All payments are immediately sent to close the debt to the person in whose favor the judgment was made.

To avoid being evicted for mortgage debt, you must notify the bank that temporary financial difficulties have arisen and take advantage of a suitable customer support program. You also need to collect a package of documents.

The difference in value between the amounts is not in favor of the debtor, therefore, he will have to pay the balance of the debt in the amount of 300,000 rubles.

Considering that this is the debtor’s only home (provided your home was not purchased during the marriage), they will not be able to foreclose on it, only to seize it.

There are, of course, situations when any property disputes in court, claims for compensation for damage caused or division of property between spouses become the basis for arrest.

As long as there is lending, there will be debtors. According to statistics from the Fitch analytical agency, 40 million people have loans from banks, the same figure appears in the Financial Monitoring report, but in the form of defaulters. People cannot cope with the financial burden and are left without money, things, and in some cases, housing.

Position of the court of first instance: the arrest is illegal and contrary to Art. 25 of the Constitution of the Russian Federation, the apartment is recognized as the debtor’s only home, and by virtue of Part 1 of Art. 446 of the Code of Civil Procedure of the Russian Federation, foreclosure cannot be made based on executive documents, so the court lifted the arrest from the apartment.

If we are talking about buying a car, it is worth clarifying information about possible restrictions by contacting the traffic police authority that registered the car as the property of the seller.

What can a bailiff take for debts?

The right to foreclose on real estate that is mortgaged by creditor banks is regulated by Art. 50 No. 306-FZ. This right can be exercised only after the relevant decision is made by the court. The legislation provides for a number of circumstances that may cause the seizure of an apartment as mortgage collateral:

non-fulfillment or improper fulfillment by the owner of obligations to pay the loan;
concealment when registering a contract of information that third parties have rights to a residential property purchased with a mortgage;
failure to comply with the conditions ensuring the safety of the collateral;
sale, donation, exchange, contribution as a property contribution without the knowledge of the creditor.

In reality, legislative innovations open up additional powers for performers. Now the bailiff can seize the only home if the debtor has debts. In addition, practice shows that since the beginning of this year the court has been striving to actively apply legislative innovations.

Zen: https://bit.ly/2Sss9Bnnn #lawyerRostov-on-Don #bankruptcy lawyer #only housing #collection of housing #bankruptcy of citizens #seizure of housing Don't rely on your knowledge and skills. Contact a professional lawyer in criminal or civil cases.

The bank, in turn, since they do not receive payments, has the right to seize the collateral and impose a penalty on it; this is indicated by the Federal Law of July 16, 1998 N 102-FZ (as amended on June 6, 2019) “On mortgage (pledge) real estate)" Article 50. Grounds for foreclosure on mortgaged property [quote]1.

Seizure of the debtor's property by bailiffs

Seizure based on a decision of a judicial authority, which specifies the amount or certain objects.
Seizure to secure property.
Seizure based on a court ruling, which provides for further seizure and sale of property.

Debtor's income: withdrawal of 50% is allowed, in exceptional cases (which includes alimony) - 70% of wages.
Cash collection.
Collection of deposits, funds on accounts and cards, seizure of salary cards.
Arrest, inventory and seizure of household, computer, mobile equipment, jewelry.
Arrest and seizure of cars and other movable property.
Arrest and seizure of real estate.

Article 81 No. 229 of October 2, 2007 states that the seizure is imposed on the money, and not on the accounts themselves. Therefore, funds are blocked immediately after they are credited. Having imposed a restriction on the account, the bank is obliged to immediately notify the bailiff that the relevant actions have been taken.

Article 81 of Federal Law No. 229 of October 2, 2007 “On Enforcement Proceedings” states that bailiffs can seize funds in a bank account. If it is open to a mortgage, this does not deprive the bailiff of the opportunity to carry out the procedure. Information about the nature of the account is not requested. Banks provide performers only with information about the availability of funds. To claim the money, the executor issues a decree to seize the mortgage account. The bank is obliged to immediately comply with the order of the bailiffs and apply the restriction. As a result, payments will no longer be made to the lender.

The bailiff has the right to impose, formally, since it does not oblige anyone to anything. The apartment is mortgaged, pledged to the bank, and upon sale, the bank has the primary right to receive compensation from the sale of this apartment. There are no violations on the part of the bailiff, but there is no sense in this arrest. If you want, you can run around and lift this arrest, but this is troublesome and, in principle, will not change anything. The next bailiff will come and impose the same punishment. and so on until you pay off your mortgage.

Dear Irina! Alas, it does. Let me explain why. Article 80 of the Federal Law of October 2, 2007 N 229-FZ “On Enforcement Proceedings” gives him this right. At the same time, the Supreme Court of the Russian Federation explained that seizure and foreclosure are different things. In accordance with Article 446 of the Code of Civil Procedure of the Russian Federation, they cannot foreclose on such housing for the debts of other creditors (not the mortgagee), but they can seize it. Alas, this is true.

Sources

Nikolay Yakovlevich Sokolov Professional culture of lawyers and legality; Prospect - M., 2008. - 101 p.
Shatov, S.A. Complicity in crime / S.A. Shatov. - M.: Legal Center, 2012. - 449 p.
Town Planning Code of the Russian Federation. Text with the latest changes and additions for 2021 / Missing. — Moscow: SINTEG, 2021. — 276 p.
Corporate lawyer No. 06/2014 / Absent. - M.: MCFR, 2014. - 138 p.
Rules of the sport "Chess" / Absent. — Moscow: Lights, 2017. — 481 p.

Can a bank take back a mortgaged apartment if it is seized as part of a criminal case?

Hello. Can a bank take back a mortgaged apartment if it is seized as part of a criminal case?

Lawyer Antonov A.P.

Good afternoon

According to Art. 115 of the Criminal Procedure Code, in order to ensure the execution of a sentence in terms of a civil claim, collection of a fine, other property penalties or possible confiscation of property specified in part one of Article 104.1 of the Criminal Code of the Russian Federation, the investigator, with the consent of the head of the investigative body, or the investigator, with the consent of the prosecutor, initiates a court petition to seize the property of a suspect, accused or persons legally liable for their actions. The court considers the petition in the manner established by Article 165 of this Code. When deciding on the seizure of property, the court must indicate the specific factual circumstances on the basis of which it made such a decision, as well as establish restrictions related to the possession, use, and disposal of the seized property. Seizure of property consists of a prohibition addressed to the owner or holder of the property to dispose of and, if necessary, use it, as well as to confiscate the property and transfer it for storage. Seizure may be imposed on property located in the possession of other persons who are not suspects, accused or persons legally liable for their actions, if there are reasonable grounds to believe that it was obtained as a result of the criminal actions of the suspect, accused or was used or intended for use as a weapon, equipment or other means of committing a crime or for financing terrorism, extremist activity (extremism), an organized group, an illegal armed group, a criminal community (criminal organization). The court considers the petition in the manner established by Article 165 of this Code. When deciding on the seizure of property, the court must indicate the specific factual circumstances on the basis of which it made such a decision, as well as establish restrictions associated with the possession, use, and disposal of the seized property, and indicate the period for which the property is seized , taking into account the period of preliminary investigation established in the criminal case and the time required to transfer the criminal case to court. The period of seizure imposed on property established by the court may be extended in the manner established by Article 115.1 of this Code. Seizure cannot be imposed on property that cannot be foreclosed on in accordance with the Civil Procedure Code of the Russian Federation. When seizing property, a specialist may be involved. Seized property may be seized or transferred, at the discretion of the person who made the arrest, for storage to the owner or possessor of this property or another person, who must be warned about the restrictions to which the seized property is subject and the responsibility for its safety, about which a corresponding entry is made in the protocol . When funds and other valuables held in an account, on deposit or in storage in banks and other credit institutions are seized, transactions on this account are stopped in whole or in part to the extent of the funds and other valuables that have been seized. The heads of banks and other credit organizations are obliged to provide information about these funds and other valuables at the request of the court, as well as an investigator or inquiry officer based on a court decision. When seizing property, a protocol is drawn up in accordance with the requirements of Articles 166 and 167 of this Code. If there is no property subject to seizure, this is indicated in the protocol. A copy of the protocol is given to the person whose property is seized, with an explanation of the right to appeal the decision to seize the property in the manner prescribed by this Code, as well as to submit a reasoned petition to change the restrictions to which the seized property is subject, or to cancel the seizure imposed on the property. The arrest imposed on property, or certain restrictions to which the seized property is subject, are canceled on the basis of a resolution, determination of the person or body in charge of the criminal case, when there is no longer a need to apply this measure of procedural coercion or certain restrictions to which the seized property is subject , as well as in the event of expiration of the court-established period of seizure imposed on the property or refusal to extend it. A seizure of non-cash funds located in the accounts of persons who are not suspects, accused or persons legally liable for their actions, imposed in order to ensure the execution of a sentence in a civil claim, is also canceled if the ownership of the seized funds is established during preliminary investigation and there is no information from the interested party, confirmed by relevant documents, about the existence of a dispute regarding their ownership, or the ownership of these funds was established by the court in civil proceedings at the claim of a person recognized as a victim and (or) a civil plaintiff in a criminal case. Thus, while the apartment is seized, foreclosure on it is impossible.

Sincerely, lawyer Anatoly Antonov, managing partner of the law firm Antonov and Partners.

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