Can an apartment be taken away if it is pledged to another bank?

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One way to improve the quality of life is to take out a mortgage or a consumer loan, in which the real estate remains the collateral. If it is impossible to regularly deposit funds to repay the loan, homeowners are puzzled by the question: can the bank take away the share in the apartment for violation of obligations? There are several possible scenarios, which you should familiarize yourself with to choose the optimal solution.

What happens if the loan is overdue?

It is necessary to understand that the bank will not “forget” about an overdue loan and will not write off a fine for failure to fulfill obligations. At the first signal from employees of a financial institution about the lack of timely payments, you must contact the official. According to the law, the debtor may lose ownership of the property by a court decision if the plaintiff bank files a claim to collect the debt under the loan agreement.

If you find yourself in a difficult situation, you need to familiarize yourself with the basic legal acts regulating the rights and obligations of the debtor and bailiffs:

A credit institution cannot take a share in an apartment on its own initiative. The issue is resolved exclusively in court. This takes into account whether the share is pledged or whether the debtor and his family members have the only home.

How to challenge the bank's actions?

By virtue of Article 90 of the Law on Enforcement Proceedings and Chapter 24 of the Arbitration Procedure Code of the Russian Federation, the debtor has the right to challenge in arbitration court almost any actions and decisions of the bailiff carried out or issued by the latter when foreclosure on property. Moreover, the law does not make the right to such an appeal dependent on whether enforcement proceedings are ongoing or have already been completed, but taking into account the established period for appeal (10 days), the court, as a rule, considers such complaints while enforcement proceedings are still in force. At the same time, since the debtor’s property is being sold, law enforcement practice recognizes that he, as an interested party, has the right to challenge the auction or its results. In this case, a dispute about the right is considered through the procedure of claim proceedings, and in addition to the debtor (plaintiff), the auction organizer, the buyer and, as a rule, the Federal Bailiff Service represented by its territorial body are involved in the case.

Let’s say the valuation of the property does not correspond to its market value or the order of foreclosure on the property is violated, and if funds are available, the real estate is sold. Obviously, in such cases it is difficult to deny the violation of the debtor’s rights. However, failure to comply with the implementation deadlines, which are commonly called official deadlines, is unlikely to violate the debtor’s rights to such an extent that the auction can be declared invalid. Can holding an auction violate the right of the debtor contrary to the existing prohibition (interim measure), despite the fact that the seizure of property is recognized as legal, although the formal rules for their conduct are not observed. And this is the reason for further litigation.

Each litigation is another legal expense that the bank bears by paying for the work of its lawyers. In fact, this is not profitable and therefore you need to once again sit down at the negotiating table with the bank and find a compromise solution, since you do not refuse to pay the debt, but you also do not want to be driven into a corner with your child.

In the concluded agreement, in the section on the obligation of the mortgagee, it is stated that in the event of a transfer of rights under the mortgage and the mortgage itself to a new mortgagee, inform the mortgagor about this within ten days. Which I assume, based on your note, was not done and this gives you grounds for further litigation to defend the legality of the actions.

You can:

Write a complaint-application to Rospotrebnadzor against your bank, which has maliciously violated the terms of the agreement. Rospotrebnadzor will arrange an inspection, thereby the bank will lose time and nerves. The law provides for liability for violation of obligations.

As a result, file a claim based on this fact and ask the court to recover moral damages from the bank.

Write a statement to the prosecutor's office addressed to the chief prosecutor of Russia about a violation of the Federal Law “On Basic Guarantees of the Rights of the Child in the Russian Federation.” In particular, describe your situation with the sale of a mortgaged apartment in which a minor is registered.

Write a letter to the President’s Office, where the subject of the letter of application should be indicated not that help or I am a debtor and I need help, but that in your city officials are breaking the law, in particular Skorobogatova Milana Maratovna, and provide a quote: “We have very good orphanages, and there will be a place for you in a nursing home.” This boorish treatment can be assessed from different angles, for example, that this person does not correspond to the position he holds. There will be a check. The official will be disheveled, and if there are still dissatisfied people, they may be fired.

The second thing is that the rights of a minor child are violated, and in particular... you again describe what was already written about the sale at auction.

Remember that hundreds of thousands of citizens contact the government leadership every day and all letters are assessed by importance. Naturally, the child will be more important than a simple cry for help.

I would also advise you to contact the Human Rights Committee, since the rights of minors are above all else.

It might be worth publicizing this story, for example, by contacting TV channels.

It is worth studying the insurance contract; perhaps there was an option to create a situation that would qualify for an insured event. In particular, I already wrote you a letter asking you to send a copy. But at present, this is most likely useless, since the agreement is suspended. But it's a must read.

Another option is to contact Anti-Collectors.

An anti-collector, most often, is a lawyer specializing in protection from banks and debt collectors.

In the future, I would advise you to record all business negotiations with a voice recorder or film them with a video camera, for example, a mobile phone camera, and then your evidence base will be impeccable.

Remember: life is a movement aimed at overcoming daily obstacles and fighting to defend your interests and the interests of your loved ones. In my case, it’s also about helping people.

Can a bank take away a share in an apartment if a consumer loan is overdue?

In Russia, new “records” are being achieved in terms of the level of overdue consumer loans. According to statistics, every second Russian is a client of a certain financial institution, and declining income levels and inflation force debtors to violate payment deadlines.

A consumer loan is not a mortgage. In most cases, it is issued for the purchase of things to meet current household needs. Rates on consumer loans are high, so there is a high probability of delinquency.

In case of non-payment, banks send a notice to the payer about the need to repay the debt as soon as possible.

The penalty begins to accrue from the first day of delay. The borrower is given 60 days to collect the required amount and repay the debt. Additional conditions should be carefully read in the contract.

After 2 months, employees will be more persistent. Avoiding responsibility is the worst course of action. You need to personally contact the bank and agree to defer payments and draw up a new loan repayment plan.

It is in the interests of the bank to achieve the transfer of funds from the client. Receiving a share of an apartment to repay a loan is unprofitable for a financial institution for the following reasons:

1. You will have to go to court, which means additional costs and work for the bank’s legal department.
2. The likelihood of winning the case is low. In most cases, the loan amount is significantly lower than the value of the property, so the court, recognizing the amounts as incommensurable, refuses to satisfy the claim.
3. Presence of encumbrances. If the apartment is mortgaged, rented, transferred under a rental agreement, is in trust, or has been seized, it will not be possible to sell it.
4. Implementation difficulties. It is difficult to find buyers for a share in an apartment. The ideal option is to sell it to shareholders. If they refuse to act as buyers, they will have to look for a new owner from among 3 persons, selling the share at auction. Organizing a sale requires material investments and time.

In most cases, the bank takes measures to voluntarily repay the loan, after which the court files a claim for forced collection of the debt.

The court decision is transferred to the territorial branch of the FSSP, and the bailiffs come into action.

When the share in the apartment is taken away

Bailiffs foreclose on the debtor's real estate, for example, a share in an apartment, if:

• he has other housing;
• the property is the subject of a mortgage;
• the debtor personally indicated the share as property that can be seized first to repay the loan.

Example. The apartment belongs to citizen K. and her partner S. in equal shares (½ each). S. purchased another home and broke up with K. In 2020, he took out a loan in the amount of 800,000 thousand rubles. , but did not pay the debt. By a court decision, S. was ordered to pay the debt, and he indicated that, first of all, his share in K’s apartment should be foreclosed on. Since the value of the share slightly exceeded the amount of the debt, and the defendant had other property for living, foreclosure was applied to his share in the apartment of a former partner. Citizen K. was forced to buy out part of her cohabitant’s apartment so that it would not be sold to a third party.

When selling, the right of first refusal is respected. According to Art. 250 of the Civil Code of the Russian Federation, first of all, people who have one of the shares as owners have the right to acquire a share. They receive notices of sale, which indicate the price of the property being sold. The co-owners are given 1 month to make a decision, after which the share is put up for auction, where anyone can purchase it.

If the share in the apartment is the only housing

When executing a court decision, it is checked whether the apartment is the only property suitable for habitation.

If there is no other housing besides the share in the apartment, then according to clause 1 of Art. 446 of the Civil Code of the Russian Federation cannot be levied against it. The exception is the share in the mortgage.

Example. The apartment belongs to shareholders: mother, father and son. The son took out a woodworking machine on credit, but did not make payments for 7 months. As a result of the trial, the son was ordered to repay the loan, and the decision was transferred to the FSSP. The bailiffs began to clarify the list of available property. It turned out that the borrower has nothing other than a share in the apartment, so its forced alienation is impossible. As a result, the property was seized, and the debt was repaid from the salary.

Summing up

It turns out that the bank has the legal right to take the apartment for the purpose of selling and repaying the mortgage debt. All the creditor needs to do is prepare documents and a lawsuit. If the borrower does not have children, then the decision is made quickly in favor of the financial company.

If there are children registered in the mortgaged apartment, consideration of the claim increases in time. However, sooner or later the bank decides to take it away and put it under the hammer.

It is important to understand that a financial institution will not care about selling the property as profitably as possible so that the client has money left over. Their goal is to get their money back plus interest.

What to do if your apartment is taken away for debts

Bank employees are taking a number of measures to repay the loan:

• notify of delay by telephone;
• send letters to the debtor indicating the amount of the principal debt and the fine;
• inform about the transfer of the case to court.

If there are threats to take away property or evict from the apartment, this is a violation of the law. Employees of financial institutions do not have the authority to alienate real estate that is not the subject of mortgage lending.

Administrative liability is imposed for misleading the debtor. According to Art. 14.7 of the Code of Administrative Offenses of the Russian Federation, a legal entity may be punished with a fine in the amount of 100-500 thousand rubles.

The bank can take the share of the apartment for debts through the court or out of court if the debtor himself agreed to sell the home after violating the terms of the loan.

If the share is seized

In the absence of other housing, actions to seize the property are legal. In this case, the owner cannot dispose of his property, but has the right to reside. The arrest does not apply to other shareholders.

The borrower's share in the apartment may not be determined if the property is jointly owned. Then the court, at the request of the bank, will allocate a share that can be seized.

If one of the shares belongs to a minor

Children's rights are defended by guardianship and trusteeship authorities. Representatives of the government agency will not allow the alienation of the share that belongs to the child. Moreover, issuing a loan secured by a share owned by a child is unlikely. Guardianship authorities will not allow the alienation of a minor’s property unless as a result he receives a greater benefit, for example, an equal share in another residential property with satisfactory living conditions.

The exception is if the entire apartment is pledged to the bank, which is confirmed by the mortgage agreement. Then the bank can sell the collateral to return the money issued. The presence of a child's share does not matter.

If the property is put up for auction

Even if a share of the apartment is put up for sale, the borrower has a chance to return it. He has the right to buy the property before it is sold at auction.

Actions upon receipt of a subpoena

If there is a threat of litigation, it is necessary to enlist the help of a lawyer and jointly study the loan agreement. The document may contain a number of provisions that contradict current legislation. The borrower has the right to challenge the bank's claims and file a counterclaim to reduce the penalty.

Participation in litigation

Guided by the provisions of Art. 333 of the Civil Code of the Russian Federation, the borrower has the right to ask the court to reduce the amount of the penalty. To do this, you must file a claim. The structure of the document is determined by Art. 131 Code of Civil Procedure of the Russian Federation. Its main components:

• header (preamble);
• main part;
• petition;
• list of documents.

The first part indicates the name of the court, information about the plaintiff and defendant. After the name of the claim comes the main part, where the debtor describes essential information: when the loan was taken out, whether payments were made regularly, whether the bank notified about the debt, the amounts of fines, penalties, penalties. The debtor indicates why he considers the bank’s actions illegal and in the petition states the need to eliminate the violations and reduce the penalty.

Attached to the document are copies of the claims, the applicant’s passport, an agreement with the financial institution, a receipt for payment of the state duty, and other documents related to the claim.

Sample claim

The duration of the trial is about 2 months , but the trial may drag on if new circumstances arise in the case or the involvement of the PLO is required.

If the decision is positive, the amount required will be significantly reduced, which will make it possible to pay off the debt without the risk of losing the apartment.

Actions of bailiffs

If the court nevertheless decides in favor of the bank, the bailiffs intervene in the situation, acting as executors of the legislative branch. Having a court ruling in hand, the civil servant opens enforcement proceedings. The first step is to send the defendant an official document (a writ of execution with a notification and a legal requirement). In addition, the document must contain conditions for repayment of the debt.

To ensure that the defendant receives the paper, it is sent with a postal notification. After this, the citizen has only five days to voluntarily solve the problem and pay off contractual obligations to the plaintiff. If this is not done, the bailiff will increase the amount of the debt by another 7% - therefore, a different amount will be required for collection. The next step is a letter to the offender with information about the date of his visit by bailiffs. If upon arrival the door was not opened to the employees, they have the right to break it. Visiting hours are limited - this is the period from 6 am to 22 pm.

Next, a seizure is issued on the property owned by the defendant, as well as on his accounts, cards - if they are debit, the funds will be written off against the debt. If there are none, or there is not enough money, housing is sought and put up for auction.

The sequence of actions of the bailiffs does not have a clear algorithm and can be changed if the owner of the apartment meets the executors of the law halfway and reconsiders his decision regarding settlement with the bank. He can give voluntary consent to repayment, sell the home himself and close the loan agreement within the agreed time frame. To do this, he needs to submit a written statement on the essence of the problem in the office of the federal executive service.

This is interesting: Does it happen that they give a loan for maternity capital but the Pension Fund does not approve?

How to avoid alienation of a share of an apartment to pay off loan debt

If the financial situation worsens, anticipating a loan delay, it is necessary to take care of transferring the most valuable things into the ownership of third parties. After all, it is better if the share goes to close people than to go to the bank.

What can be done:

1. Draw up a gift agreement. The transaction must be finalized before the trial begins. The recipient must understand that the transfer of property is a necessary measure. Subsequently, the gift agreement cannot be canceled without compelling reasons (Article 578 of the Civil Code of the Russian Federation).
2. Spouses should draw up a marriage contract and enter into an agreement on the division of jointly acquired property. Documents drawn up before the trial have legal force.
3. To protect the property in the apartment from seizure, you can enter into a rental agreement with a third party. The document should reflect that the debtor's share is rented, and the property (for example, household appliances, interior items) belongs to the tenant.

If there is no other housing, the share is not the subject of a mortgage, and there is no need to worry about its alienation. The only thing that bailiffs can do is to significantly limit the rights to dispose of real estate.

If you have a significant loan debt, find a copy of the agreement and contact a lawyer at ros-nasledstvo.ru. Ask questions: are the bank’s actions legal, can a credit institution take away the apartment under the current circumstances, what actions should be taken to reduce the amount of debt? Consultations are provided free of charge to all portal visitors.

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Author of the article

Natalya Fomicheva

Website expert lawyer. 10 years of experience. Inheritance matters. Family disputes. Housing and land law.

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Can the bank take away the apartment?

• civil servants can be shown receipts certifying the purchase of luxury goods by another person;
• the defaulter can enter into a rental agreement with the owner of the apartment, which lists all the property that does not belong to the defendant, but is located on the premises;
• relatives can draw up an agreement for storage of their property on the territory of the debtor’s living space;
• a gift agreement will help in resolving the issue, when the debtor gives away his own property to relatives and friends;
• Spouses are advised to draw up a prenuptial agreement.