In January 2020, the Head of State announced that maternity capital is being issued to improve the demographic situation in the country. It is assumed that the money will be used to purchase housing, its construction, mortgage, education, monthly payments, etc.
Most families invest their allowance in real estate and additionally apply for a loan, but the economy in the country does not at all contribute to the prosperity of citizens. The crisis, job cuts, and lack of kindergartens put parents in a difficult financial situation. Many citizens are ready to declare insolvency in order to legally write off debts and breathe freely, but they are afraid for the fate of their “children’s” money. Maternity capital in the event of bankruptcy of an individual becomes one of the pressing issues.
We figured out whether maternity capital is taken away when parents go bankrupt, if it is paid in the form of benefits, if it is invested in a mortgage or purchase of an apartment, and also what to do if a developer goes bankrupt.
What happens to money when an individual goes bankrupt?
Life's twists and turns are unpredictable, and during a crisis there is a risk of losing property and income. When dealing with a bank or microfinance organization, citizens are not required to be experts (lawyers and economists), but to preserve property they will need an understanding of the basic principles.
In case of bankruptcy, all benefits, pensions, and other measures of material support for children remain in the family. Parents do not have the right to spend “children’s” money to pay off their debts.
Maternity capital is a social benefit that is protected by law from collection (clauses 7-13 of article 101 of Federal Law No. 229). If parents receive monthly payments for their second child, then this money is intended to ensure the well-being of the child and is not used for settlements with creditors. The same applies to other money - alimony, additional payments from the employer, “Putin’s” benefits, and survivor’s pensions will not be touched. Moreover, child support debt is not discharged as a result of bankruptcy.
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Maternity capital was invested in the purchase of an apartment, what will happen in case of bankruptcy
If an apartment in which a bankrupt family lives is purchased using maternity capital, there is nothing to worry about. The only housing is not subject to foreclosure on the basis of Article 446 of the Code of Civil Procedure of the Russian Federation.
Problems arise when the property is pledged to the bank that issued the loan.
Mortgage in bankruptcy
- In the restructuring procedure
debt, a payment schedule is approved, and the debtor partially pays off the debts within up to 3 years. If the debtor pays according to the plan, bankruptcy is not recognized. When the plan provided for a partial settlement with creditors (for example, only “principal debts” without interest), the outstanding debts are written off.We advise you to pay attention to the borrower assistance program; families with minor children have the right to apply for state support.
Restructuring is a chance to save a mortgaged apartment, but official income (salary, pension, rent) is needed to cover more than 50% of the debt in a three-year period.
Read more about restructuring in the feature article.
- In the procedure for the sale of property,
an individual declares himself bankrupt, the collateral property is sold in accordance with Art. 138 Federal Law No. 127 to satisfy the claims of the secured creditor.
Important! If the creditor who issued the mortgage was not included in the register as collateral, then the mortgaged only home is not included in the bankruptcy estate and remains with the debtor.
For example, when the husband admits insolvency, and the co-borrower wife makes timely payments on the loan, it is more profitable for the bank to receive money under the agreement than to sell the apartment. The mortgage bank does not participate in the husband's bankruptcy; his debt is written off, but the wife remains the borrower under the mortgage agreement. In other words, the borrower is being replaced, but an agreement still needs to be reached with the bank.
If the bank entered into bankruptcy proceedings in a timely manner, the apartment with a mortgage is sold at auction, even the only premises suitable for living. However, the investment of maternal capital is taken into account to protect the rights of children. Judicial practice shows that the case is resolved as follows:
- the bank’s right to sell mortgaged housing is legal, even if minors are registered or have a share;
- parents receive part of the proceeds from the sale of the apartment, in proportion to the share of maternal capital in the initial cost of the property. This money is not included in the bankruptcy estate and is protected from attacks by creditors.
To determine the exact amount, the value of 1% of the property is calculated. Maternity capital usually amounts to 8-10% of the purchase price.
Thus, in the event of bankruptcy, an apartment with maternity capital is sold at auction if it was purchased with a mortgage. Children receive their share in any case, while adults may not receive the remainder after settlements with creditors. The subject of pledge (real estate) is sold at public auctions, in which citizens and legal entities have the right to participate. There is a chance to buy square meters without collateral.
Total:
The mortgaged apartment is sold to pay off the claims of the secured creditor, and the maternity capital is returned to the family.
Important! The returned share of children cannot be used for personal needs. To avoid subsequent difficulties with the Pension Fund, the money needs to be invested in other real estate. You can get free advice on how to legally spend these funds by calling us or writing a question online.
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Hello! Please tell me whether it is possible to challenge such a transaction? My husband wants to file for bankruptcy as an individual. debts more than 1,000,000 rubles. In 2020, the month of September, I am buying a single home through maternity capital (450,000). The purchase and sale transaction was executed for 1,000,000 rubles, the market value is 2,000,000 rubles. A deal between relatives. My mother is selling me an apartment that she inherited after the death of my grandmother (about 7 months after she entered into inheritance rights). Therefore, such an amount is indicated in the contract. he gives the money to my younger brother and he buys himself an apartment with a mortgage, because... there was a question about selling my grandmother’s apartment and dividing the apartment between me and my brother. I lived and have been living in this apartment for about 15 years (I used to live with my grandmother) and at a family council, my mother decided to sell the apartment to me and not exchange it. I am the only owner, the children have no share. Can my husband’s creditors or the financial manager challenge the deal and will they have a question about where I got the difference of 550,000 rubles (1,000,000-450,000 = 550,000). in fact, I didn’t pay my mother anything else except my mother’s capital. My husband sold the car not at market value in 2014 - everything is clear here that they will challenge it. But what about the apartment.
Hello! Please tell me whether it is possible to challenge such a transaction? My husband wants to file for bankruptcy as an individual. debts more than 1,000,000 rubles. In 2020, the month of September, I am buying a single home through maternity capital (450,000). The purchase and sale transaction was executed for 1,000,000 rubles, the market value is 2,000,000 rubles. A deal between relatives. My mother is selling me an apartment that she inherited after the death of my grandmother (about 7 months after she entered into inheritance rights). Therefore, such an amount is indicated in the contract. he gives the money to my younger brother and he buys himself an apartment with a mortgage, because... there was a question about selling my grandmother’s apartment and dividing the apartment between me and my brother. I lived and have been living in this apartment for about 15 years (I used to live with my grandmother) and at a family council, my mother decided to sell the apartment to me and not exchange it. I am the only owner, the children have no share. Can my husband’s creditors or the financial manager challenge the deal and will they have a question about where I got the difference of 550,000 rubles (1,000,000-450,000 = 550,000). in fact, I didn’t pay my mother anything else except my mother’s capital. My husband sold the car not at market value in 2014 - everything is clear here that they will challenge it. But what about the apartment.
This is interesting: State duty court online form
How to reimburse maternity capital in case of bankruptcy of a developer?
Legislation protects the rights of shareholders. Starting from 2020, the Pension Fund has the right to transfer benefits for the second child to the escrow accounts of construction organizations. But what should parents do if they invested capital in an unreliable developer, for example, five years ago? If the developer goes bankrupt, the family cannot get an apartment on time, and getting the money back becomes a difficult procedure.
Based on the provisions of Art. 10 No. 256-FZ, when using maternity capital, the share of each child is determined. To avoid problems with payments in the event of bankruptcy of the developer, it is necessary to register creditor claims in the appropriate register. The shareholder denotes the method of satisfying them in case of failure to fulfill obligations. It could be
- payment of compensation in cash;
- provision of ready-made housing, if it is advisable to complete the house.
Lawyers for cooperatives and developers often say that if the share participation agreement is broken, people will lose their maternity capital. This is not true, since there is a right to return money both under the housing cooperative agreement and under the DDU. If the contract is terminated due to failure to fulfill obligations, the shareholder or shareholder has the right to request that family capital be transferred to the Pension Fund.
Then the benefit will not be considered used, and the parents have the right to apply for payment again. If parents receive money from the developer, then reuse and indexation are not provided for in the legislation. It is important to correctly evaluate the nuances in order to choose a more profitable strategy.
It is advisable to immediately use the money received from the developer to purchase a new home. Such a decision leads to filing a lawsuit against the parents, but if you provide documents on the intended use of maternity capital, the dispute will end before the court hearing.
The bankruptcy of the developer complicates the use of allocated funds and creates serious problems, loss of time, etc. But at the same time, it does not lead to a hopeless situation and a complete loss of funds.
You are responsible for your actions
Unfortunately, not all parents who apply for maternity capital agree with the purposes of its use established by the state. This gives rise to many schemes in which enterprising citizens receive payment in the form of cash.
What happens if you illegally cash out maternity capital?
However, due to difficult economic conditions, a law was adopted on a one-time payment of 20,000 rubles to families who write a corresponding application to the pension fund. At the same time, it is not necessary to wait until the child reaches the age of three.
Be prepared for the fact that the Pension Fund or the local prosecutor's office, at its request, will file a lawsuit to recover the amount of maternity capital received from you. This is unpleasant, but understandable: you need to account for the intended use of budget money. In court, you have several options:
Almost all happy parents probably know how to receive maternity capital from the Pension Fund. Today we will look at an unusual situation when maternity capital already received from the state has to be returned back. How to properly return maternity capital to the Pension Fund of the Russian Federation - says a lawyer from the Vesti Prava website.
In what cases should maternity capital be returned?
The main difficulty is that the law (Federal Law “On additional measures of state support for families with children”) does not provide for the procedure for returning mother’s capital at all. Even on the official website of the Pension Fund it is emphasized that the right to receive maternity (family) capital is granted only once. At the same time, you have the obligation to use the money received for the intended purpose. That is, you cannot not return them at all or use them for other needs.
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The bank is the mortgagee and if it is not paid, then it remains with the bank. According to Art. At the motivated request of a citizen and other persons participating in a citizen’s bankruptcy case, the arbitration court has the right to exclude from the bankruptcy estate the citizen’s property, which, in accordance with federal law, can be foreclosed on under executive documents and the income from the sale of which will not significantly affect the satisfaction of claims creditors.
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Can housing be taken away if an individual goes bankrupt?
Tamara Shornikova: Well, now we’re starting a new topic. Let's talk about maternity capital. A popular form of support for families with two or more children. And, as it turned out, a popular area for fraud. What I don’t do for those who are trying to cash out maternity capital!
Yes, the 2-NDFL certificate is one of the means of confirming the receipt of income and payment of taxes, however, in the context of the issue under consideration, such a certificate will not be an exhaustive sufficient document. Information on income and taxes paid and accrued, but not paid, can be obtained by contacting the tax office at the place of your permanent registration. To register, you will still have to visit the Federal Tax Service at the place of your registration, or directly to the tax office itself.
The state provides families with certificates for the use of maternal capital in order to improve demographic indicators. It is permissible to spend funds on purchase, construction, taking out a loan for housing, education of children or mother’s pension. If there are no funds for the construction or purchase of real estate, then certificate holders have the right to apply to financial institutions to obtain a targeted loan. The basic contribution is paid through a government subsidy.
Bankruptcy mortgage maternity capital
The period of three years does not matter in this matter. What is the minimum number of publications that will need to be made in order to bypass the restructuring and get rid of debts through the sale of property? Not only existing ones, but all accounts that exist or existed but were closed within three years preceding the date of application. Sberbank has a very branched structure, and obtaining information and account statements in different branches can be difficult.
The government is considering the possibility of tightening the rules for spending maternity capital when repaying housing loans. It is expected to approve a list of organizations whose loans can be repaid with maternity capital funds. On the permitted list they want to leave only state-controlled banks, credit and agricultural consumer cooperatives and the unified development institute in the housing sector “DOM. We're looking into whether the changes will limit mothers' options or protect them from losing money. The bill also prohibits repaying the mortgage using maternity capital if the apartment being purchased is unfit for habitation.
Can they really do that? I have no other place to live! And I won’t be able to earn it anymore; I’ll retire soon. Help me what should I do. Help, what to do? I can't risk my only home. Thank you in advance. I'll make some clarifications. I have had a mortgage loan since a year and a guarantee for someone else’s loan in another bank since a year.
Why do they want to tighten the rules for spending maternity capital?
Or should I be moved to her apartment and the house taken away? Thank you, the FU wants to sell a more expensive apartment where I am registered and live with my family. I wrote about excluding a more expensive apartment from km since I live there, etc. What will the court leave as the only housing? My husband gave me an apartment by drawing up a gift deed. This is my only living space, where we live with our minor daughter. He is now planning to declare bankruptcy. Will the apartment remain with me? Hello, if I am declared bankrupt, can my share in a house under construction be taken away?
Where to go if such problems arise?
The state is on the side of the recipients of maternity capital, and the courts are trying to get into the situation. But the laws are drawn up in such a way that it is not possible to interpret the rules unambiguously. Discrepancies lead to difficulties with which it is better not to take risks. If you have any questions, please contact our staff for assistance. They will help you understand the legal intricacies of the case and get rid of debts without losing property.
To get a consultation
Ask any question about bankruptcy and receive a detailed answer. It's free.
