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How to save a mortgage property?

How to save mortgage real estate?

We can:

  1. Terminate the relationship between the Bank and the property guarantor;
  2. Withdraw collateral from the mortgage;
  3. Remove the ban on the alienation of collateral;
  4. Save almost any real estate collateral;
  5. Stop enforcement of collateral

The law On mortgages defines a mortgage as one of the types of ensuring the fulfillment of an obligation by real estate that remains in the possession and use of the mortgagor, but at the expense of which the mortgagee has the right to obtain satisfaction of its claims in case of default by the debtor secured by the mortgage. The basis for the occurrence of such obligations for property security in the form of a mortgage is the conclusion of a credit agreement. Collateral of banks.

The Mortgagor almost always has ways to counteract foreclosure on the subject of the mortgage. Using these methods, the mortgagor (debtor, property guarantor) can, at least, delay the process of foreclosure on the subject of the mortgage for a significant period (up to delaying the process for several years), as a maximum-to achieve recognition of the mortgage agreement as an invalid transaction, an unfinished contract or a mortgage terminated. The Bank collateral.

The practice of Kasyanenko and Partners Law Company:

Our lawyers justify their demands for termination of the mortgage agreement (property guarantee) by the fact that since the mortgagor is a property guarantor, in this case, the mortgage agreement is a mixed agreement that contains elements of the pledge and guarantee agreements, which means that if the main obligation is changed without their consent, the mortgage is terminated on the basis of part 1 of article 559 of the Civil code of Ukraine.

Satisfaction of such claims leads to the termination of obligations under the mortgage agreement and actually deprives Banks of the means to ensure the fulfillment of the main obligation by the debtor.

Conclusion: today, mortgage is one of the most pressing issues for most people who have previously purchased apartments, houses, cottages, land plots on credit and, today, due to the financial crisis, are not able to give it away.

Is the Bank taking the apartment? What to do?

In order not to lose the last home, there are many legal reasons to withdraw the property from the mortgage.

  1. Article 17 of the law of Ukraine On mortgage provides grounds for termination of the mortgage. The mortgage is terminated in case of recognition of the mortgage agreement invalid. Kasyanenko & Partners Law Company helps property guarantors (mortgagors) on loans to save almost any real estate collateral, to terminate contractual relations with the Bank under mortgage agreements, to terminate property surety.
  2. The law of Ukraine On mortgage provides for the right of the mortgagor (borrower or property guarantor) to appeal at any stage of sale illegal actions on sale of the subject of mortgage. For example, article 48 of the law of Ukraine On mortgage provides the right to appeal the results of open tenders, according to which the mortgagee, the mortgagor, the debtor and any participant of open tenders within three months from the date of the auction has the right to appeal their results in court at the location of the immovable property.
  3. Article 652 of the civil code of Ukraine. In the event of a material change of circumstances which the parties were guided in the contract, the contract may be modified or terminated by agreement of the parties, unless otherwise provided by contract or follows from the substance of the obligation.
  4. Article 18 of the law On protection of consumers rights, which defines the procedure for invalidating the terms of contracts that limit the rights of consumers.
  5. According to part 6 of article 203 of the civil code of Ukraine transaction, which is made by parents (adoptive parents), cannot contradict the rights and interests of their young, underage or disabled children.
  6. By virtue of article 22 of the CCU property acquired by spouses during marriage is their common joint property. According to article 65 part 3 of the СС of Ukraine for the conclusion of one of the spouses contracts on valuable property, the consent of the second of the spouses must be submitted in writing.
  7. Section 1 of Article 559 of the Civil Code of Ukraine the guarantee stops with the termination of the secured obligation, and, if the obligation without the consent of the guarantor, thereby increasing the amount of its liability.
  8. Article 225 of the civil code. Legal consequences of the transaction by a capable natural person, who at the time of its Commission did not realize the significance of their actions and (or) could not lead them.
  9. Article 223 of the Civil Code. Legal consequences of the transaction by a natural person whose civil capacity is limited, beyond its civil capacity.
  10. Article 227 of the Civil Code. Legal consequences of the conclusion of a transaction by a legal entity, which it had no right to make.
  11. Article 228 of the Civil Code. Legal consequences of a transaction that violates public order.
  12. Article 229 of the Civil Code. Legal consequences of a transaction that is made under the influence of delusion.

All the above mentioned legal norms can be applied in case of invalidation of the mortgage agreement. To fully clarify the legal nature of a particular mortgage agreement requires a thorough legal and economic analysis of the entire legal structure of credit obligations.

We will help our clients to terminate the relationship arising from the mortgage agreement (property guarantee), thereby to protect the property of the guarantor from illegal actions of Banks.

Dmytro Kasyanenko

Lawyer, managing partner of the Kasyanenko & Partners Law Firm. Since 2002, he has gained extensive legal experience in key positions in business structures and the public sector in the field of law and finance.

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