The subject of pledge cannot be certain types of property and property rights directly provided for in the law. Read more about what specifically is prohibited to be pledged, as well as what must be considered when replacing and pledging the subject of collateral, is described in this article.
Subject of pledge: general provisions under the Civil Code of the Russian Federation
A pledge is one of the options for securing the performance of obligations. According to Art. 334 of the Civil Code of the Russian Federation (hereinafter referred to as the Civil Code of the Russian Federation), the value of a pledge for an authorized party to an obligation (creditor) consists in the fact that if the obligated party (debtor) fails to fulfill its obligations (for example, non-repayment of a loan), the pledged object is sold (sold) , and the amount received from the sale is transferred to the creditor as a repayment of his claims in priority order compared to other creditors. Thus, the necessary property of the subject of pledge is its negotiability.
By general rule any property (including things, property rights, objects that will be received by the pledgor in the future, etc.) that is not directly prohibited by law (Article 336 of the Civil Code of the Russian Federation) can be transferred as a pledge.
So, it is not allowed to pledge:
- objects that cannot be foreclosed;
- claims (claims) inseparable from the personality of the creditor;
- other property rights that cannot be transferred (assigned) to another entity;
- a specific type of property whose pledge is directly limited or prohibited by a regulatory legal act (hereinafter referred to as RLA).
IMPORTANT! Conclusion of a contract in contradiction to legal acts entails the risk of its contestation. At the same time, an agreement signed in violation of a direct legislative prohibition is regarded as void, as encroaching on public interests (Article 168 of the Civil Code of the Russian Federation). Judicial practice refers to the latter an agreement on the assignment of claims that are inseparable from the personality of the creditor (clause 75 of the decision of the Plenum of the Supreme Court of the Russian Federation “On the application by the courts ...” dated June 23, 2015 No. 25).
What exactly cannot be pledged
Let us consider in more detail what kind of property the legislator forbids to pledge.
The list of objects that cannot be foreclosed is presented in Art. 446 of the Code of Civil Procedure. Thus, an individual cannot be deprived of the following property, which he owns by right of ownership:
- apartment (its parts), provided that this person and members of his family do not have the opportunity to live in another suitable room and the apartment is not mortgaged under a mortgage agreement;
- personal items, except for jewelry and other luxury items;
- things used in professional activity, except for those whose value is above 100 minimum wages, etc.
Specific types of property of a legal entity (hereinafter - LE), which it cannot pledge, are defined in special legal acts. For example, you cannot claim:
- for the exclusive right to a secret invention (Clause 6, Article 1405 of the Civil Code of the Russian Federation);
- movable and real estate liturgical function (Article 21 of the Law “On Freedom of Conscience and on Religious Associations” dated September 26, 1997 No. 125-FZ), etc.
Claims that are inseparable from the personality of the creditor include:
- on the payment of alimony;
- compensation for damage to life or health.
Examples of property whose collateral is expressly restricted or prohibited by NBOs are:
- the rights of participants (founders) of all legal entities, except joint-stock company and societies with limited liability(Article 358.15 of the Civil Code of the Russian Federation);
- cultural values of state and municipal museums, galleries and other government organizations culture (Art. 51 Fundamentals of Legislation Russian Federation about culture, approved. Armed Forces of the Russian Federation 09.10.1992 No. 3612-I) and others.
Can money be pledged?
According to Art. 128 of the Civil Code of the Russian Federation, cash and non-cash funds are objects of civil rights. At the same time, the legislator does not provide for a direct ban on the use of Money as a pledge (Article 336 of the Civil Code of the Russian Federation). However, in judicial practice for a long time, the position prevailed, according to which the funds in the bank account could not be pledged, due to the fact that they did not meet such an important property of the pledged item as the admissibility of sale (clause 3 of the appendix to the information letter of the Supreme Arbitration Court of the Russian Federation “ Review of practice…” dated 15.01.1998 No. 26).
IMPORTANT! The problem of pledge of funds was solved in a certain way by the introduction in 2013 in the Civil Code of the Russian Federation of provisions on the possibility of pledge of rights under a bank account agreement as a result of opening credit institution collateral account (Article 358.9 of the Civil Code of the Russian Federation).
At the same time, the parties to the agreement may agree that the pledgee has the right to claim a specified fixed amount (and then the pledger is obliged to maintain this minimum value or has the right to reduce it with the consent of the pledgee) or the entire amount of money for the duration of the agreement.
The pledgor can freely manage the available funds in the pledge account, unless the parties agree otherwise or there is no direct prohibition (restriction) in the RLA.
Foreclosure on this property is carried out after the credit institution receives the corresponding order of the pledgee by transferring funds from the pledge account to the account of the pledgee or issuing him cash (Article 358.14 of the Civil Code of the Russian Federation).
What things can not be the subject of collateral when pledging and replacing
As a general rule, a pledged thing remains in the possession of the pledgor. At the same time, depending on the provisions of the RLA, as well as the agreement of the parties to the obligation, the subject of pledge may be transferred into the possession of the pledgee, and then the pledge of property takes place.
At the same time, the possibility of the pledgee to use the pledged property, subject to the preservation of its value, must be provided for by agreement of the parties (clause 5, article 346 of the Civil Code of the Russian Federation). In turn, the pledgor, deprived of the opportunity to use the pledged thing, is also limited in its disposal. However, similar consequences for the mortgagor may also occur if the subject of pledge is left under the lock and seal of the pledgee (clause 2, article 338 of the Civil Code of the Russian Federation).
An example of a pledge is the transfer of a movable thing personally used by an individual to the possession of a pawnshop (Article 358 of the Civil Code of the Russian Federation).
However, the analysis current regulations allows us to conclude that not any thing can be transferred to the pledgee. For example, the following property cannot be pledged:
- goods in circulation that remain with the pledger (Article 357 of the Civil Code of the Russian Federation);
- property on which a mortgage has been established (Article 1 of the Law “On Mortgage (Pledge of Real Estate)” dated July 16, 1998 No. 102-FZ).
As for the replacement of the subject of pledge, in this case the rule also applies that any property that is not prohibited by law can be pledged. In this case, the replacement can take place both on the basis of the agreement of the participants, and in the absence of the approval of the mortgagor or pledgee in a special statutory cases (Article 345 of the Civil Code of the Russian Federation).
Thus, any property can be transferred as a pledge, except for what is expressly prohibited by law. It includes objects that cannot be foreclosed, claims that are inseparable from the personality of the creditor, other property rights that cannot be transferred to another entity, as well as other property whose pledge is directly limited or prohibited by legal acts.
Pledge- this is a way to secure obligations between the debtor (mortgagor) and the creditor (mortgagor). Collateral can be primary or secondary. In the first case, the pledge is transferred to the Bank as a pledge of the first order. If the borrower receives another loan (while refinancing the first loan) in another bank, the second stage pledge mechanism is triggered.
In this case, the contractual relationship between the first Bank and the second (re-mortgage) shall be concluded in writing, and the pledge shall be re-mortgaged to the second Bank. The creditor has a preferential right to pledge over other creditors. Relations between the parties are specified in the contract and are regulated by the Civil Code of the Russian Federation, the Federal Law "On Pledge", the Federal Law "On Mortgage".
Security is a set of conditions that gives the creditor confidence that the debt will be repaid. The loan can be secured by collateral in the form of real estate, movable property and other highly liquid funds ( securities, guarantees), as well as a guarantee. In addition to the basic collateral for a loan, in a number of countries there is a need to provide additional sources income because credit risk for the lender above.
Similarities and differences between collateral and security
Thus, “Pledge” and “Security” are two different concepts. However, in banking system there is a generalized expression - "Collateral", which implies the entire system contractual relations and obligations between debtor and creditor.
Loan security
There are types of loans that prerequisite is the provision of collateral. These include: commercial, mortgage, consumer, leasing, etc. For them, banks necessarily require a "hard" pledge. With car loans, student loans and other “light” loans, Banks generally accept purchased cars, inventory items, movable property, etc. as collateral. The pledger can be both the debtor himself and a third party, with his written permission.
Documentary component
After the loan is issued, a borrower package is formed. It contains collateral for a loan, contracts, and all other Required documents according to the "Lending Procedures". Each unit of collateral in the Bank is accounted for as one off-balance sheet liability and is reflected in the relevant accounting entry. On practice, nominal value 1 collateral is usually equal to 1 unit of currency and is kept until the end of the loan term. At the end of the loan term, the off-balance sheet obligation is debited from the Bank's obligations and returned to the borrower against signature.
What happens if you don't pay the bank?
In case of non-fulfilment of obligations by the mortgagor specified in the agreement, the Bank delivers to the debtor a notice registered with the relevant authority on the commencement of the procedure for the enforcement of the pledge to pay off the debt. If the debtor does not “respond” to the Bank's actions in pre-trial proceedings, the Bank has the right to satisfy the obligation by selling the collateral.
The lawyer prepares a package of documents (correspondence between the debtor and the creditor), signed contracts are attached, the full amount of the debt is calculated and the case is submitted to the court. When the court decides in favor of the creditor, the debtor's property passes into the possession of the Bank and is sold at an open auction under the hammer. If the court decides in favor of the debtor, then this debtor can only be envied, because this is a very small percentage of all court cases.
Calculation of collateral and liabilities
To secure a loan credit specialist first calculates the amount of the debtor's obligations:
loan amount + accrued % for the period according to the repayment schedule = loan obligations
Calculation example
To reinforce the above material, let's give 2 examples:
Example 1
You took out a loan:
As security for the loan, you provide 3 room apartment, with an approximate market price of 16,000,000 rubles. When calculating the collateral value of real estate, Banks apply a liquidity ratio of approximately 40-70% of the value of the property. In your case, let's say it will be 50%. Thus, your apartment will be evaluated by a Bank specialist in the amount of 8,000,000 rubles. Now let's calculate the amount of liabilities:
5,000,000 rubles * 11% * 5 years = 7,750,000 rubles.
Congratulations, your collateral fully covers your obligations and you have a great chance to get a loan.
Example 2
You receive a mortgage loan for the purchase of an apartment, the cost of which is 14,000,000 rubles.
The goal is to buy an apartment
At mortgage lending, as collateral for the loan, the provision of the acquired real estate is required. What will be the calculation collateral? Let's take a closer look here. The liquidity ratio will also be equal to 50%. Now look: If the purchased property costs 14,000,000 rubles, then after applying the coefficient of its assessed value as security will be equal to 7,000,000 rubles. And the amount of your obligations to the Bank is.
Almost every lawyer who is interested in derivatives or contesting transactions knows about the Platinum Real Estate LLC dispute VS AKB Bank of Moscow.
But few people know that in this case there was also a “bankruptcy issue” (case A40-162646 / 2015), in which the issue of the legal nature of the amount upon termination of the swap agreement could potentially be considered. It did not come to the consideration of this issue, since the swap was declared invalid.
In the Bankruptcy Law, the so-called. "financial sanctions", which are not taken into account when determining the signs of bankruptcy ( paragraph 4, clause 2, article 4. bankruptcy law), and are also "non-voting" requirements on general meeting creditors ( paragraph 2, clause 3, article 12 of the Bankruptcy Law) and are taken into account after other claims of creditors ( Clause 3 of Article 137 of the Bankruptcy Law).
What is the legislator's logic in allocating "financial sanctions"?
In my opinion, it consists in the fact that in case of bankruptcy, first of all, the claims of those creditors who have provided the debtor with “plus / minus” an equivalent counter provision (if the counter provision is unequal, then the transaction may be disputed on bankruptcy grounds) or the creditor actually "suffered" from the actions of the debtor.
If the creditor “did not give anything” to the debtor as a counter provision and did not really suffer in any way, then it is not fair to put him on a par with the creditors who provided the debtor with money or property. Hence the "infringement" of the interests of creditors with financial sanctions.
This logic is clearly seen in the example of losses: real damage is a full-fledged claim in bankruptcy, and lost profits are “non-voting”.
It seems that this logic is observed in all cases, with the exception, perhaps, only of the surety / pledge of 3 persons, which have their own obvious specifics.
From here, in my opinion, we can raise the question of the legal nature of the amount that is payable by one of the parties to the swap agreement upon its early termination.
Is this amount a financial sanction?
In my opinion, yes.
For two reasons:
FIRST OF ALL , all payments on game/betting transactions must be “financial sanctions”, even if such transactions are protected under clause 2 of article 1062 of the Civil Code of the Russian Federation due to a special subject composition.
SECONDLY , calculation of the amount upon termination of swap contracts in the standard documentationRISDAis not even a lost profit, but some arbitrary amount, the calculation of which is not and cannot be accurate or predictable. This amount directly depends on the chosen "underlying" asset, and not on the damage to one of the parties. And if the swap is non-deliverable (settlement), in which the parties do not actually exchange the underlying assets, then the arbitrariness of the amount upon termination of the swap agreement is even more obvious. The amount upon termination of a non-deliverable (settled) swap agreement, calculated from the amount of the underlying asset, chosen arbitrarily by the parties, is only an estimate evaluation loss of profits made on the assumption that all future conditions are to be determined at the date of termination of the swap (for example, exchange rate for future payments for many years ahead is suddenly calculated precisely on the date of termination), and therefore cannot even be considered a loss. Such an amount is in its pure form a financial sanction, close in nature to a forfeit (Article 330 of the Civil Code of the Russian Federation).
Below I propose to look at the argumentation of these ideas with reference to the standard documentation used in the Russian Federation.
Let me briefly recall the circumstances of the case A40-168599 / 2015 that are of interest to the topic (can be checked by judicial acts).
Platinum Nedvizhimost LLC received from the Bank of Moscow, JSC, directed in accordance with clause 6.8. Approximate terms of the agreement on term transactions on financial markets 2011 (NAUFOR) Notification bank about the amount monetary obligation upon termination. In the above notice, the Bank provides a calculation of the amount payable, in the opinion of the Bank of Moscow, by the Company in connection with the termination of the swap agreements at the initiative of the Bank.
The calculation of this amount was made by the Bank in accordance with paragraphs b) paragraph 6.9 and paragraphs a) paragraph 6.10 of the Sample Terms of the Agreement on Futures Transactions in Financial Markets 2011 (NAUFOR).
According to clause 6.9.
« For the purposes of calculating the Termination Liability Amount, in respect of each Transaction in Termination (subject to subparagraph (h) of this paragraph 6.9), the Determinant, acting reasonably and in good faith, determines the current market value (price) (positive or negative, as specified below) of the Terminating transaction by determining the amount that would be payable if the Determinant entered into a replacement transaction, that is, a transaction on terms similar to those of the Transaction in market value(prices), with the same date(s) of payment or delivery as the Transaction in Discontinuance (collectively, the replacement cost for all Discontinued Transactions — “ Liquidation amount»). ».
In pp.b) item 6.9. Approximate terms of the agreement on futures transactions in financial markets in 2011 (NAUFOR) indicate the following:
« In order to determine the Liquidation Amount, the Determining Party must request from at least four Reference Dealers quotes for the conclusion of replacement transactions that have the force of an offer (firm quotes). These quotes may take into account the solvency of the Determining Party and the terms of agreements (including in terms of ensuring the fulfillment of the obligations of the Determining Party) between the Determining Party and the reference Dealer submitting a quote. When requesting quotations, the Determining Party may instruct Reference Dealers, when providing quotations, to proceed from the fact that the fulfillment by the parties of obligations under the replacement transaction is secured in a manner similar to the procedure for ensuring the fulfillment of obligations of the parties under the Terminated Transaction, if any.».
In confirmationsfor foreign exchange transactions interest rate swap between LLC Platinum Nedvizhimost and JSCB Bank of Moscow, regarding the calculation of the liquidation amount for the transaction, it was indicated:
« The Parties acknowledge that for the purposes of this calculation to "terms similar to the terms of the Terminating Transaction, relevant for determining its market value", specified in the first paragraph of clause 6.9. Sample contract terms include, among others:
- Floating Amount A2, calculated taking into account the number of days elapsed from the last due date of payment of Floating A2 A2 (excluding it), up to the Early Termination Date (inclusive), and Floating A1 Amount equal to the Residual Amount calculated on the Early Termination Date, which are recognized Overdue amounts due from Party A to Party B on the Early Termination Date;
- all other obligations to pay the A2 Floating Amounts, A2 Floating Amounts, B1 Floating Amounts and the residual amount (including as the Final Payment Amount for Party A), which would have occurred if it were not for the early termination of obligations under the Transaction, are considered equal to zero ».
According to subparagraphs a) paragraph 6.10.Approximate terms of the agreement on futures transactions in financial markets in 2011 (NAUFOR):
« The amount of the monetary obligation upon termination is determined in accordance with this clause 6.10, taking into account clause 6.15 this article 6.
(a) Breach of Obligation and Bankruptcy. In the event of early termination of obligations under the Transactions due to a Breach of Commitment or Bankruptcy, the Amount of the Monetary Liability on Termination will equal the sum of (i) the Termination Currency Equivalent of the Closing Amount (positive or negative) as determined by the Non-Defaulting Party, and (ii) the difference of (A) the Equivalent in the termination currency of the Overdue Amounts owed to the Non-Defaulting Party, and (B) the Currency Equivalent of the termination of the Overdue Amounts owed to the Defaulting Party (calculation formula given below).
Amount of Monetary Liability on Termination = Currency Equivalent termination of the Closing Amount + (Currency equivalent of termination of Overdue Amounts due to Non-Defaulting Party - Currency Equivalent of termination of Overdue Amounts due to Defaulting Party)
If the Termination Monetary Amount is positive, the Defaulting Party is obliged to pay that amount to the Non-Defaulting Party; if negative, the Non-Defaulting Party is obliged to pay the absolute amount of the Termination Monetary Liability Amount to the Defaulting Party.
In case of automatic termination of the obligations of the Parties under all Transactions in accordance with clause 6.3 of this article 6, when calculating the Amount of the monetary obligation, upon termination, payments and (or) deliveries made by one Party in favor of the other Party in the period from the Early Termination Date to the day of payment of the Amount of monetary obligations upon termination, determined in accordance with paragraph 6.12 of this Article 6.
In case of early termination of obligations under the Transactions due to the occurrence of Bankruptcy against the Party specified in subparagraphs (e) and (f) or subparagraph (C) of subparagraph (g) of paragraph 5.2 of Article 5 of the Model Terms of the Agreement, the amount of the monetary obligation upon termination cannot include compensation losses in the form of lost profits and non-refundable recovery to".
According to the definition of terms according to clause 12.1.Approximate terms of the agreement on futures transactions in financial markets in 2011 (NAUFOR):
« Past Due Amounts Due to a Party means, for the Early Termination Date, the totality of:
(a) amounts that are due (or would have been, were it not for clause 3.3 of Article 3 or clause 6.5 of Article 6 of the Model Contract Terms) due to that Party in accordance with clause 3.1 of Article 3 of the Model Contract Terms prior to the Early Termination Date ( inclusive) and which remain unpaid as of the Early Termination Date;
(b) amounts equal to the current market value of the subject of delivery under Terminated Transactions, the delivery date of which in favor of this Party has come (or would have come if it were not for the operation of paragraph 3.3 of Article 3 or paragraph 6.5 of Article 6 of the Model Contract Terms) in accordance with paragraph 3.1 Article 3 of the Model Contract Terms up to and including the Early Termination Date and in respect of which the delivery obligation has not been fulfilled on the Early Termination Date;
(c) Termination Liability Amounts payable in respect of previously terminated Transactions and outstanding as of the Early Termination Date, in each case including Interest accrued pursuant to paragraph 6.11 or 6.13 of Article 6 of the Model Terms.
The current market value of the item to be delivered under subparagraph (b) above is determined reasonably and in good faith by the Party obligated to settle under paragraph 6.10 of Article 6 of the Model Terms of Contract on the date on which the delivery obligation was originally to be performed. If, in accordance with paragraph 6.10 of Article 6 of the Model Contract Terms, both Parties are required to settle, the current market value of the item of delivery under subparagraph (b) above will be equal to the arithmetic average of the Termination Currency Equivalents of the current market values determined by both Parties ».
Based on the above conditions of the Confirmations and the Approximate Conditions of NAUFOR, in the very general view , the following follows.
The amount payable upon termination of the swap contracts is the sum of the "liquidation amount" and the difference between the "arrears" (in a special sense).
The "Liquidation Amount" is determined by the current market value of the transaction, which is determined by the replacement of a similar transaction that the person who declared the termination of the swap agreement could enter into.
In fact, the "liquidation amount" is determined on the basis of the current forecast on the cost of payments in one direction or another under swap agreements until its expiration, that is, it represents for one of the parties evaluation lost profit, which this party could have received if the swap agreement had not been terminated.
The very nature of non-deliverable (settlement) swap contracts, which is payment of the difference on a certain date in the future essentially different underlying assets, implies that at the moment cannot be determined neither such a difference, nor even one of the two parties to whom the payment under the swap agreement will be due in the future, which indicates that the swap agreements are aleatory character.
Until the due date for the payment of the difference between payments in the future, the obligation is not certain, which, for example, is confirmed in Determination of the Supreme Arbitration Court of the Russian Federation dated March 27, 2013 N VAC-3788/13 in case N A40-55358 / 12-100-391 and Determination of the Supreme Arbitration Court of the Russian Federation of November 23, 2012 N VAC-15181/12 in case N A40-92297 / 11-46-801(See also the lower judicial acts).
OTC swap agreements between the Bank of Moscow and Platinum Real Estate LLC are derivative financial instruments and are a type of non-deliverable (settlement) transactions related to the organization of games and betting.
The legal nature of settlement derivatives as aleatory transactions is defined, for example, Decree of the Presidium of the Supreme Arbitration Court of the Russian Federation of 08.06.1999 N 5347/98.
Prior to the entry into force of the Federal Law of January 26, 2007 N 5-FZ on amendments to Article 1062 of the Civil Code of the Russian Federation, these transactions did not have judicial protection.
From February 9, 2007, after the amendments to Article 1062 of the Civil Code of the Russian Federation came into force, these transactions received judicial protection if at least one of the parties to the transaction is entity licensed to carry out banking operations or a license to carry out professional activities in the securities market.
However granting judicial protection to these transactions does not change their legal nature as transactions of games and bets, as evidenced, in particular, paragraph 1, clause 2, article 1062 of the Civil Code of the Russian Federation:
« For claims related to participation in transactions that provide for the obligation of the party or parties to the transaction to pay monetary amounts depending on changes in prices for goods, securities, the exchange rate of the relevant currency, the amount interest rates, the level of inflation or the values calculated on the basis of a combination of these indicators, or the occurrence of another circumstance that is provided for by law and regarding which it is not known whether it will occur or not, the rules of this chapter do not apply. These requirements are subject to judicial protection if at least one of the parties to the transaction is a legal entity that has received a license to carry out banking operations or a license to carry out professional activities in the securities market, or if at least one of the parties to the transaction concluded on the stock exchange is a legal entity, who has received a license, on the basis of which it is possible to conclude transactions on the stock exchange, as well as in other cases provided for by law”.
That is why the "liquidation amount" takes on the nature of not even a lost profit, but a certain arbitrary amount, which one of the parties must pay to the other, that is, by the nature of its usual financial sanction (close to forfeit).
The amount of the specified amount depends on the size of the underlying asset.
But the parties did not exchange basic assets, did not issue loans to each other, indicated in swap agreements as basic assets.
The underlying asset when concluding swap agreements is actually chosen by the parties arbitrarily: the parties could indicate both the size of the underlying asset of 1 ruble and the size of the underlying asset of 1 billion rubles.
Size of the underlying asset under swap contractsbetween LLC Platinum Real Estate and JSCB Bank of Moscowwas chosen based on the amount credit obligations Platinum Nedvizhimost LLC to Bank of Moscow OJSC, since the swap agreements were interconnected with the loan agreement and were dependent on them.
Bank of Moscow OJSC could not have suffered losses in the form of real damage from the transaction, since the underlying asset was not actually transferred by the bank (the transaction was a settlement transaction).
“Amounts overdue” (in a special sense) were determined by OJSC “Bank of Moscow” in the form of residual value, i.e. in the amount of the same underlying asset, taking into account "depreciation" on a certain date.
Thus, the difference between "overdue amounts" also represents evaluation lost profit one of the parties, and this estimate is based on the unsubstantiated assumption that the exchange rate should be determined at the date of termination of the swap agreement, while the very nature of the swap agreements implies accounting for the exchange rate only on strictly defined dates (dates of payment of the difference) in the future.
Non-deliverable (settlement) derivatives financial instruments(derivatives) by definition do not involve an exchange of underlying assets, so the determination of the amount upon termination of swap contracts based, ultimately, on the size of the "virtual" underlying asset, cannot be anything other than financial sanction.
As stated in the legal literature (Sklovsky K.I. On the relationship between contract and obligation // Bulletin civil law. 2013. N 4. S. 4 - 18//SPS "ConsultantPlus" ):
“An interest rate swap agreement as an agreement under which goods, works, services are not transferred cannot be linked to current economic needs and, like other similar contracts, cannot have grounds for termination in these needs themselves, or, more precisely, in their falling away or change.
This may explain the condition widely practiced in standard interest rate swap agreements on termination of the agreement with the obligatory payment of some arbitrary compensation. Obviously, such compensation cannot be considered a loss., since the parties to the contract do not conduct by means of the contract economic activity which may be affected by termination. Respectively, in the event of a dispute, the court is deprived of the opportunity to determine this amount based on the norms of the law on losses.
Usually compensation is calculated according to a complex formula (and (or) with the involvement of experts), which is based on the forecast (or some extrapolation into the future) of the rate or other indicator used in the contract. For example, if at the time of termination of the contract the rate credit interest was 2%, it is assumed that it will be approximately the same, and, based on this, a calculation is made for the entire duration of the contract, sometimes for many years to come. Based on this, the party wishing to terminate the contract has to pay the entire amount at once for many years. There are different options, more or less claiming the reliability of the forecast and the fairness of the calculation, but, of course, by the very essence of the contract, any forecast of fluctuations in the indicator can in no way be reliable. As a rule, the amounts of compensation are so large that they can be considered prohibitive. Accordingly, the contract, not without reason, is regarded as indissoluble.
Thus, it is necessary summarize that the amount upon termination of swap agreements cannot be taken into account when determining the signs of bankruptcy due to the following:
1. The indicated amount is based on a transaction that has legal protection, but is a game / betting transaction;
2. the indicated amount is an approximate estimate of the lost profits of one of the parties;
3. the specified amount depends on the size of the underlying assets, which the parties did not exchange, but actually chose arbitrarily (based on the dependence in relation to loan agreement);
4. The Bank cannot have any real loss from the termination of swap agreements, and the Bank has not made a counter provision for the specified amount of termination by the Bank.
Within the meaning of the Bankruptcy Law, even losses in the form of a price difference in a replacement transaction are a financial sanction (see, for example, Definition Supreme Court RF dated August 21, 2014 in case N 305-ES14-206, A40-92868 / 2012-124-124B).
An arbitrary amount upon termination of swap contracts is not even defined in the price difference with the replacement transaction, but in the form of the replacement transaction itself plus the difference between "overdue amounts" (in a special sense).
Thus, this amount is a financial sanction, which is not taken into account when determining the signs of bankruptcy.
Paragraph 1 of Art. 340 of the Civil Code of the Russian Federation (hereinafter - the Civil Code of the Russian Federation) establishes that the value of the subject of pledge is determined by agreement of the parties, unless otherwise provided by law. However, this condition is not stated in the law as essential. At the same time, paragraph 1 of Art. 9 of the Federal Law of July 16, 1998 No. 102-FZ “On Mortgage (Pledge of Real Estate)” (hereinafter referred to as the Federal Law “On Mortgage”), it is established that “the mortgage agreement must indicate the subject of the mortgage, its assessment, substance, amount and term performance of an obligation secured by a mortgage.
Thus, the parties to pledge legal relations are required to indicate an agreed valuation of the pledged property. They can determine such an assessment both independently and by contacting an appraiser.
Participants of collateral relations determine the assessment on their own, having agreed it among themselves, or contact the appraiser and indicate in the task what type of value should be determined.
The law does not define on the basis of what criteria the assessment should be made. The method of coordinating the value of the subject of pledge is not prescribed by law. In practice, in the contract, the parties may indicate the value of the pledged property without specifying its type, they may indicate several types of value. Participants in pledge transactions can determine the value based on the report of an independent appraiser, or agree on their own, without involving a professional, guided by average market prices for similar property.
In paragraph 19 of the Information Letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated January 28, 2005. No. 90 “Review of the practice of considering arbitration courts disputes related to the mortgage agreement” states that if the parties indicate in the mortgage agreement several different valuations of the subject of mortgage, such an agreement cannot be considered not concluded if it is possible to establish which of the valuations is the one that the parties agreed on as an essential condition of the agreement about mortgage.
In explanation of this recommendation of the Supreme Arbitration Court of the Russian Federation, the circumstances of one of the considered cases are given. As follows from the circumstances of the case, in the mortgage agreement the parties indicated three different valuations of the subject of mortgage: valuation based on the conclusion of an independent appraiser, collateral valuation and valuation according to the documents of the authority technical inventory.
At the same time, the court found that the cost of the mortgaged building, according to the documents of the technical inventory body, was indicated by the parties in order to implement paragraph 4 of Art. 4 Law of the Russian Federation dated 09.12.1991 No. 2005-1 "On state duty”, which was in force at the time of the conclusion of the mortgage agreement. The appraisal given to the subject of mortgage by an independent appraiser involved by the parties, and which the parties indicated in the mortgage agreement, by virtue of Article 12 of the Federal Law “On Appraisal Activities in the Russian Federation”, was advisory in nature for them and was not mandatory.
Based on these circumstances, the court came to the conclusion that it is the mortgage valuation that is the valuation of the mortgaged building, which the parties, by agreement among themselves, gave to this subject of mortgage.
In paragraphs 1 and 2 of Article 340 of the Civil Code, as amended. Federal Law of December 21, 2013 367-FZ states that, unless otherwise provided by law, the value of the subject of pledge is determined by agreement of the parties. A change in the market value of the subject of pledge after the conclusion of a pledge agreement or the emergence of a pledge by virtue of the law is not a basis for changing or terminating the pledge, unless otherwise provided by law or the agreement.
The Federal Law “On Mortgage” mentions two types of real estate value: collateral value (paragraph 2 of Article 67 states that “the collateral value of a land plot pledged under a mortgage agreement is established by agreement between the mortgagor and the mortgagee”) and market value (in paragraph 3 of Article 9 states: “In the case of a pledge of immovable property not completed by construction, located in the state or municipal property appraisal of the market value of this property is carried out). Nowhere else in the law does it indicate what type of property value must be indicated in the contract.
In Art. 3 of the Federal Law "On Appraisal Activities in the Russian Federation" the market value of the appraisal object is defined as the most probable price at which this appraisal object can be alienated for open market in a competitive environment, when the parties to the transaction act reasonably, having all the necessary information, and any extraordinary circumstances are not reflected in the value of the transaction price.
There is no legal definition of the collateral value of property. In the science of civil law, the position has recently become widespread, according to which the term “collateral value” found in normative acts should be considered as a synonym for market value, which is also called “real”, “fair”, etc.
However, this position does not appear to be entirely correct. In the conditions of the current norms and in the absence of the concept of collateral value, of course, one should agree that since there is no collateral value in federal standards assessment, there are no instructions on how to determine the collateral value, we cannot consider it an independent type of value. At the same time, in contrast to the generally accepted synonyms for market value, the concept of "collateral value" is used precisely in order to emphasize special character the value of the pledged property against its market value. There are sufficient prerequisites for the allocation of collateral value as a type of value. In particular, law must proceed from the real needs of society. The practice of collateral relations shows that the value of the collateral, especially when selling property at auction, should not be determined on the basis of market value.
In their activities, banks actively operate with this controversial term. The concept of collateral value was formed from the Instruction Central Bank RF of June 30, 1997 No. 62a "On the procedure for the formation and use of a reserve for possible losses on loans", which has now become invalid, where the collateral value is defined as "the maximum amount of the client's obligations that this property can provide, this amount is determined as the market value of the collateral minus the costs of its implementation and possible discounts on the speed of implementation. Banking practice is guided in most cases by these criteria in order to determine the collateral value.
There is an economic need to define and use the term collateral value. Banks that are pledge holders use the collateral value, despite the fact that at present it is not recognized by law as an independent type of value and can be attributed to custom.
There are currently no special guidelines for the valuation of property transferred as collateral. Currently, in cases where property is subject to mandatory valuation, the contract for the purpose of collateral must establish the market value of the property.
Judicial practice shows that the assessment when foreclosing the subject of pledge should be determined based on the market value of the property. This position is supported by the Supreme Arbitration Court of the Russian Federation. In paragraph 6 of the Information Letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated 15.01.1998. 26 “Overview of the Practice of Considering Disputes Related to the Application by Arbitration Courts of the Norms of the Civil Code of the Russian Federation on Pledge” states that in the event of a dispute between the pledgor and the pledgee, the initial selling price of the pledged property is set by the court based on the market price of this property. Despite the fact that these recommendations of the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation were developed before the adoption of the Federal Law "On Mortgage", they are currently in force, after 16 years.
In the absence of a dispute, the court will certainly indicate the price agreed in the contract. This provision indirectly indicates that the price in the contract must be the market price. In fact, if the contract does not specify a market price, but some other one, and none of the parties object to the sale of property at that price, then the court will have no reason to set the initial sale price on its own.
P. 2 Art. 348 of the Civil Code and clause 1 of article 54.1 of the Federal Law “On Mortgage” it is established that foreclosure on pledged property is not allowed if the violation of the obligation secured by the pledge committed by the debtor is insignificant and the amount of the pledgee’s claims is clearly disproportionate to the value of the pledged property.
The insignificance of the violation is assumed if, at the time the court decides to foreclose, the following conditions are simultaneously met: the amount of the unfulfilled obligation is less than five percent of the value of the subject of mortgage and the period of delay in the fulfillment of the obligation secured by the pledge is less than three months (clause 1 of article 54.1 Federal Law "On mortgage"). For the pledge of movable property, sub. 1 p.2 art. 348 of the Civil Code of the Russian Federation provides that the violation of the obligation secured by the pledge is assumed to be insignificant and the amount of the pledgee's claims is clearly disproportionate to the value of the pledged property, if the amount of the unfulfilled obligation is less than five percent of the value of the pledged property and the period of delay in fulfilling the obligation secured by the pledge is less than three months . Unlike the Federal Law "On Mortgage", the Civil Code of the Russian Federation does not provide that the rule applies only to the judicial procedure for foreclosure.
Thus, the value of the collateral is related to the size of the debtor's unfulfilled obligation. The ability to foreclose on the subject of pledge depends on the ratio of the amount of debt to the value of the pledged property, as well as delay in performance.
At the same time, the said norms of Art. 348 of the Civil Code and art. 54.1. The Federal Law “On Mortgage” does not clarify the issue being analyzed, since they are not specific enough. Uncertainty Remains legal nature the value specified in the pledge agreement. It is still not clear from what value five percent of the debt is calculated. How will this value be determined?
The lack of certainty in the norms contributes to the emergence of disputes: a dispute is possible in court about whether it is permissible in a particular situation to foreclose on property. The parties may offer different options for calculating five percent, interpreting the norms of the law in their favor: five percent of the value specified in the contract, or five percent of the market value at the time of the dispute. As practice shows, this cost can vary significantly.
In our opinion, the provisions of art. 348 of the Civil Code and art. 54.1 of the Federal Law "On Mortgage" should be interpreted using the value specified in the pledge agreement. There are certain reasons for this. In particular, one should proceed from common sense norms and the will of the legislator. In our opinion, these norms should function not only for the court, but also for the parties to pledge legal relations even before going to court. Based on the requirements of the law, the parties must independently determine at what point and under what circumstances they have the right to foreclose on the subject of pledge in judicial order. That is, the task of the studied norms is to prevent premature appeal to the court under fear of refusal to satisfy the requirements.
Based on the analysis, we consider it necessary to single out an independent function of the collateral value: the collateral value in relation to the amount of the debt is a criterion for determining the possibility of foreclosure on the subject of collateral.
It is noteworthy that the original version of Art. 348 of the Civil Code of the Russian Federation did not assume any ratio of the value of the pledged property to the amount of debt under the main obligation. Therefore, such a ratio was determined only by the courts and was of an estimated nature, in connection with which, in some cases, the courts quite unexpectedly dismissed the claim.
One of the purposes of using the term "collateral value" is to define maximum size the monetary obligation of the debtor to the creditor, and means the maximum amount that can be secured by a pledge of certain property.
At the same time, the term "collateral value" is currently provided only for a land plot in the Federal Law "On Mortgage". The term "mortgage value" was contained in Article 3 of the Law of Moscow dated February 11, 1998 No. 3 "On appraisal activity in the city of Moscow", according to which, for the purposes of this law, appraisal activity is understood as a set of relations of legal, economic, organizational, technical and of a different nature as established in relation to objects of assessment of market or other value (mortgage, liquidation and other). This document became invalid in 2002 due to the adoption of the Law of the city of Moscow dated May 22, 2002 No. 28. The collateral value was specified in the law as separate view value, along with market and liquidation.
As seen, regulations partly recognize the collateral value as a specific type of value. However, the collateral value is currently not an independent type of value. We believe that this gap, which causes controversy and uncertainty in the regulation of collateral relations, should be eliminated. To do this, in our opinion, the collateral value must become a really effective type of value, its place in the system of norms on collateral must be determined, it is necessary to formulate the concept of collateral value, determine the method for determining and changing it.
We propose the following concept of collateral value. Collateral value - the value of the subject of pledge, agreed by the parties in the pledge agreement and determining the maximum sum of money, which can be secured by a pledge of a specific object, as well as serving as a criterion for determining the possibility of foreclosure on the subject of pledge in relation to the amount of debt under the main contract and reflecting the most probable price at which the subject of pledge can be alienated by selling at a public auction or by selling in another way in a manner agreed upon by the pledgor and the pledgee.
The collateral value is based on the market value. The mortgage legislation of the Russian Federation established that when foreclosing a mortgaged property, the initial sale price is set equal to eighty percent of the market value of the property, as determined in the appraiser's report (Item 4, Part 2, Article 54 of the Federal Law "On Mortgage").
Differentiated regulation of the initial sale price for judicial and non-judicial foreclosure procedures that has existed for a long time, the absence of a reference to the type of value, the use of terms that are not defined by law lead to a decrease in the effectiveness of pledge operations.
Unfortunately, no steps have been taken in this direction so far. The amendments made to the Civil Code are devoted to other problems of collateral legal relations. Apparently, there is a lot of law-making work to be done in order to stabilize the pledge as a guarantee for the fulfillment of obligations.
The practice of collateral relations shows that it is the issue of value that needs to be given due attention, to develop a unified and logical structure of legal relations in the field of determining the value of pledged property in order to achieve maximum efficiency of collateral operations.
Bibliography
1. Civil Code of the Russian Federation (Part One) dated November 30, 1994 No. 51-FZ // Collection of Legislation of the Russian Federation. - 05.12.1994. - No. 32. - Art. 3301.
2. Law of the Russian Federation of 09.12.1991 No. 2005-1 “On the State Duty” // Collection of Legislation of the Russian Federation. - 01.01.1996. - No. 1. - Art. nineteen.
3. Law of the city of Moscow dated February 11, 1998 No. 3 “On appraisal activities in the city of Moscow” // Vedomosti of the Moscow Duma. - No. 5 (p. 39). – 1998.
4. Law of the City of Moscow No. 28 dated May 22, 2002 “On recognizing as invalid the Law of the city of Moscow dated February 11, 1998 No. 3 “On appraisal activities in the city of Moscow” and amending the Law of the city of Moscow dated February 21, 2001 No. 6” About bringing into line with Budget Code Russian Federation individual laws of the City of Moscow” // Vedomosti of the Moscow City Duma. - No. 6 (Article 124). - 17.07.2002.
5. Instruction of the Central Bank of the Russian Federation of June 30, 1997 No. 62a “On the procedure for the formation and use of a reserve for possible losses on loans” // Bulletin of the Bank of Russia. - No. 91-92. - 12/31/1997.
6. Information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated 15.01.1998. No. 26 “Overview of the practice of considering disputes related to the application by arbitration courts of the norms of the Civil Code of the Russian Federation on pledge” // Bulletin of the Supreme Arbitration Court of the Russian Federation. - No. 3. - 1998.
7. Information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated January 28, 2005 No. 90 “Overview of the practice of consideration by arbitration courts of disputes related to a mortgage agreement” // Bulletin of the Supreme Arbitration Court of the Russian Federation. - No. 4. - 2005.
8. the federal law dated July 16, 1998 No. 102-FZ “On mortgage (pledge of real estate)” // Collection of legislation of the Russian Federation. - 07/20/1998. - No. 29. - Art. 3400.
9. Federal Law of July 29, 1998 No. 135-FZ “On Appraisal Activities in the Russian Federation” // Collected Legislation of the Russian Federation. - 03.08.1998. - No. 31. - Art. 3813.
10. Federal Law No. 367-FZ of December 21, 2013 “On Amendments to Part One of the Civil Code of the Russian Federation and Recognition as Invalid of Certain Legislative Acts (Provisions of Legislative Acts) of the Russian Federation” // Collected Legislation of the Russian Federation. – 12/23/2013. -No. 51. - Art. 6687.
11. Shevelev B. Is there a collateral value? // Accounting and banks. 2011. No. 10. S. 43 - 49.
Pledge of client's property is one of the common forms of security of return bank loan. Pledge of property is formalized by a pledge agreement signed by two parties and confirming the right of the creditor in case of non-fulfillment of the payment obligation by the borrower to receive priority satisfaction of the claim from the value of the pledged property.
The use of collateral in the practice of organizing credit relations implies the existence of a special mechanism for its application. The pledge mechanism is the process of preparing, concluding and executing a pledge agreement. The pledge mechanism arises at the time of consideration loan application as a condition of entering into a loan agreement. It accompanies the entire period of using the loan. Real call to execution pledge mechanism arises at the final stage of the movement of credit - the repayment of the loan - and only in individual cases when the client cannot repay the loan with proceeds or income.
AT banking practice operations for the design and implementation of the collateral mechanism are called mortgage transactions. Pledge operations of commercial banks do not have independent significance. They are derived from lending operations and guarantee the timely and full repayment of the loan. Loans issued on the security of the property of the client_or his property rights are called pawn loans..
From a legal point of view, the structure of the pledge mechanism can be presented in Fig. 13.1.
As can be seen from fig. 13.1, the central place in the legal content of the pledge mechanism belongs to the definition of the right of ownership, possession, disposal and use of the pledged property. Uka issues in legislation various countries are resolved differently. In Russia legal basis pledge mechanism is defined by the Law "On Pledge" and Civil Code, according to which:
a) the ownership of the pledged property belongs to the borrower;
b) possession by the borrower of the pledged property may be direct and indirect;
c) the pledge may be accompanied by the right to use the pledged items in accordance with its purpose.
The main stages of the implementation of the pledge mechanism are:
- choice of objects and types of collateral;
- appraisal of collateral;
- drawing up and execution of a pledge agreement;
- procedure for foreclosure.
Things, securities, other property and property rights can be the SUBJECT OF PLEDGE. At the same time, this property must meet two criteria to classify it as an object of pledge: acceptability and sufficiency. Specified Criteria find different expressions in relation to different types of property.
Depending on the tangible content, pledged items are divided into the following groups:
1. Pledge of the client's property:
Pledge of goods material assets:
a) pledge of raw materials, materials, semi-finished products;
b) pledge of goods and finished products;
pledge currency values(cash currency), gold items, jewelry, art and antiques;
d) pledge of other inventory items;
- pledge of securities, including promissory notes;
- pledge of deposits held in the same bank;
- mortgage (mortgage of real estate).
2. Pledge of property rights:
- pledge of the tenant's right;
- pledge of the author's right to remuneration;
- pledge of the customer's right under a work contract;
- pledge of the right of a commission agent under a commission agreement.
At the same time, in order for this or that property of the client to become the subject of pledge, it must comply with eligibility and sufficiency criteria.
The acceptance criterion reflects the qualitative certainty P subject of collateral, sufficiency criterion - quantitative. There are general and specific requirements for the qualitative and quantitative certainty of collateral.
General requirements for the quality side of collateral regardless of their material and material content are reduced to the following.
1. Subjects of pledge (things and property rights) must belong to the borrower (pledger) or be under his full economic control.
2. Pledge items must have a monetary value.
3. The pledged items must be liquid, i.e. have the ability to implement.
General requirement for the quantitative certainty of collateral is the excess of the value of the pledged property in comparison with the main obligation that the pledgor has in relation to the pledgee, i.e. the value of the mortgaged property must be more than the amount loan and the interest due on it.
Specific requirements for the qualitative and quantitative certainty of collateral depend on the type of collateral and the degree of risk that accompanies the respective collateral transactions.
Acceptability of inventory collateral value is determined by two factors:
- quality of values;
- the ability of the creditor to exercise control over their safety. Criteria for the quality of inventory items are:
implementation speed,
relative price stability,
possibility of insurance
long term storage. Therefore, perishable products are generally not used for collateral.
It is important not only to determine the criterion of quality, to choose values in accordance with it, but and provide their safety. Only in this case, the pledge of valuables can be a guarantee of repayment of the loan.
In this regard, the most reliable way to ensure the safety of the pledged values is to transfer them to the creditor, i.e. bank. In this case, the borrower remains the owner of the pledged property with indirect ownership. He cannot dispose of and use the pledged values. This type of collateral is called mortgage. The creditor acquires the right to use the pledged property upon mortgage. At the same time, the obligation to properly maintain and store the pledged item, to bear responsibility for loss and damage passes to him.
If the bank does not have storage facilities, this type of collateral in relation to inventory items has a limited scope. As pledge items may be: _va fierce values, precious metals, art, decorated and I. The current legislation also provides for the possibility (by agreement of the parties) to leave the pledged inventory items with the pledgors. If the objects left with the pledgor are marked with signs indicating their pledge, there is a so-called hard pledge. AT In this case, the borrower has no right to use (spend) the pledged values.
As practice has shown, a solid pledge has a limited scope, since it is designed for values that are not intended for current consumption.
A more common type of collateral when leaving valuables with the mortgagor is pledge of goods in circulation. In this case, the mortgagor not only directly owns the pledged values, but
and can use them.
Pledge of goods in circulation is currently used in the practice of domestic and foreign banks when lending to trading organizations, which must constantly have a stock of valuables to put them up for sale. In this case, the collateral is not only in the possession, but also at the disposal and use of the borrower. With this type of pledge, the organization can replace one pledged value with another, but the condition for the sale of goods is their mandatory renewal in the amount of spent values. Pledge of goods in circulation is also called collateral with a variable composition, since there may be a discrepancy between the moment of sale of goods and the moment of restocking, in this case the pledge obligation does not always guarantee the return of the loan. This guarantee only applies to actual inventory. A type of pledge of goods in circulation is pledge of goods in processing. It is used for lending. industrial enterprises, in particular processing agricultural raw materials. A feature of this type of pledge is the borrower's right to use the pledged raw materials and materials included in the pledged items in production and replace them with finished products. Moreover, it may be allowed to move valuables intended for processing from a warehouse to a workshop of a factory or plant. The processing of valuables by the bank is permitted if it is proved that as a result of processing, a product of a higher value will be obtained than before it. For proof, a special calculation is submitted, which shows the quantity and cost of the pledged raw materials and materials; the period of its processing; average yield of processed products; storage. However, even in this case, the bank cannot exercise effective control over the safety of the pledged values.
Thus, different kinds pledges of material values (or settlement documents representing them) have an unequal degree of guarantee of repayment of the loan. The mortgage has the most real guarantee. Other types of collateral have conditional loan repayment guarantees. Therefore, in the practice of foreign commercial banks, these types of collateral are used in relation to clients who have positively recommended themselves, i.e. reliable partners in credit transactions.
Because in market economy the situation with the sale of goods can quickly change, the value of the pledged values is always higher than the amount of the loan issued. This provision defines the concept "sufficiency" of the object of pledge. When issuing pawnshop loans against inventory items, the maximum loan amount, as a rule, does not exceed 85% of the value of the collateral. This difference gives the bank an additional guarantee of loan repayment in case of unforeseen circumstances.
However, in each case, an individual margin(the difference between the value of the pledged values and the debt of the borrower to the bank on the loan and interest), taking into account the risk of a credit transaction.
In addition to the pledge of inventory items in foreign and domestic practice, banks issue pawn loans secured by securities.
The criterion for the quality of securities, in terms of their acceptability for collateral, serve: the possibility of rapid implementation and the financial condition of the issuing party. In this regard, in foreign and domestic practice, government securities with a fast turnover have the highest quality rating. When issuing loans secured by them, the maximum loan amount can reach 95% of the value of securities. When using other securities as collateral (for example, shares issued by firms), the loan amount is 80-85% of their market price. Wherein commercial banks issue loans for both listed and unlisted securities. In the latter case, the quality of loan collateral is lower, which is why banks set a higher margin when assessing the value of collateral.
Collateral also includes bills(trading and financial). The main requirement for a commercial bill as a subject of collateral is in the obligation to reflect the real commodity transaction . It is also necessary to take into account the maturity of the bill, which cannot be shorter than the term of the loan. The maximum amount of the loan P ZD collateral for a bill, according to the experience of a number of countries, is 75-90% of the value of the collateral. In Russian practice, collateral is mainly used financial bills(obligations of the issuer to pay a certain amount of money). The main requirements for such a bill when it is used as collateral are: the legitimacy of the issue, the availability of a sale mechanism, and liquidity.
The lien may also extend to deposits located in the same bank that issues the loan. Such contributions, as a rule, have a targeted use. For example, a business organization accumulates monetary resources for the implementation of production capital investments or building facilities social sphere(residential buildings, dispensaries, preschool institutions, sports complexes). When receiving a bank loan for current production needs, an enterprise can use the created deposits in the appropriate amount, including foreign currency deposits, as collateral. When using a foreign currency deposit as collateral, an order is given to the relevant bank employees to block the account in an amount adequate to the ruble loan. If the deposit is issued by a certificate, then it can be deposited with the bank. In case of a delay in repayment of a loan at the expense of incoming proceeds, the bank will ensure the repayment of the loan at the expense of deposit. This is the easiest and most reliable way to guarantee the repayment of the loan.
Lending to the total (loan in the aggregate inventories and production costs) or an escalated object (checking account credit) may require the use of mixed pledge, including goods in stock, securities, bills. AT In this case, the requirements for the constituent elements of a mixed pledge remain the same as those described above. The maximum loan amount, in accordance with the Charter of the State Bank of the RSFSR of October 13, 1921, was not to exceed 75% of the total value of the total security accepted as collateral.
Some features in the use of collateral are available when issuing mortgage loans which have been widely developed in the world banking practice. In this case, there is such a type of collateral as mortgage, i.e. pledge of real estate. The object of mortgage may be: buildings, structures, equipment, land, residential buildings and apartments, cottages, garden plots, garages and other consumer buildings.
Mortgages are characterized by the following features: leaving the property with the pledgor in possession and use; the ability of the mortgagor to independently dispose of the income received from the use of mortgaged items; the possibility for the mortgagor to receive additional mortgage loans against the security of the same property; obligatory registration of pledge in land books maintained at the location of the subject of mortgage; ease of control by the pledgee over the safety of the subject of pledge.
Mortgage is used, as a rule, when issuing long-term loans to legal and individuals(to the population to purchase a house or apartment; to farmers for construction or land management).
When issuing mortgage loan It is important to correctly assess the value of the collateral. Evaluation success as shown Foreign experience, depends on the abilities, experience and competence of the appraiser. The bank attaches great importance to this issue.
In Russia, the use of mortgages as collateral for obligations under a loan agreement is regulated Law of the Russian Federation "On Mortgage (Pledge of Real Estate)", which entered into force on July 16, 1998. In accordance with it, the objects of mortgage are: land plots; enterprises, as well as buildings, structures and other real estate used in entrepreneurial activity; residential buildings, apartments and parts of residential buildings and apartments; dachas, garden houses, garages and other consumer buildings; air and sea vessels, inland navigation vessels and space objects.
The said property may be subject to mortgage if it belongs to the pledgor on the right of ownership or on the right of economic management.
If the property is in common joint ownership or owned under a lease, the consent of all owners or the landlord is required.
Provided that the subject of mortgage is an enterprise, then the composition of the pledged property includes tangible and intangible assets related to this enterprise.
In modern banking practice subject of pledge when issuing loans speaks not only property belonging to the client, but also his property rights. As a result, there is an independent type of collateral − pledge of rights. In this case, the object of pledge is the rights of: the tenant to buildings, structures, land; author for remuneration; customer under a contract; a commission agent under a commission agreement, etc. When using a pledge of rights to ensure the repayment of a loan, the bank must make sure that the term for the receipt of funds by the borrower corresponds to the loan repayment period.
Another element of the pledge mechanism is appraisal of the collateral.International practice has developed the following fundamental provisions in this regard..
1. Most pledged items are valued at market value. This means, in effect, the highest price a property could sell for given a potential buyer and sufficient time to complete the transaction. However, in many cases where a bank implements a collateral facility to repay a loan, the initial cost does not match the real price. This is due to reasons such as: lack of interested buyers, lowering the price of the property in question, economic downturn, the need to quickly find a buyer.
2. Accepted collateral must be regularly reassessed to cover credit risk at all times.
3. Estimation of the value of pledged items must be carried out by specialists of appropriate qualification.
4. Authenticity and value of works of art, antiques, etc. must be confirmed.
In the case of using inventory items as collateral, its value should include the costs of conducting periodic assessments of collateral, especially if independent experts are involved in them.
6. When evaluating collateral, attention should be paid to the correct definition salvage value and the cost of selling the property.
The actual level of loan coverage in a situation of forced sale of property can be determined if, from open market prices subtract the following:
- implementation costs;
- forced sale margin;
- the value of any priority claims to property;
- payment of legal costs.
If we subtract the required margin of safety (depending on the degree of risk) from the net real value, we get the real value of the property, which is the security for the return of the loan.
7. The most responsible, complex and time-consuming is the assessment
property as collateral. In international practice
There are three main methods used to appraise real estate.
used in combination to select the most optimal option.
First method(cost) focuses on determining the possible costs of acquiring land and erecting new similar buildings in the foreseeable future in the normal course of construction. Next is determined replacement cost objects, taking into account the amount of entrepreneurial income, which reflects the investor's reward for the risk of building a real estate object. The resulting value is reduced by the amount of depreciation.
Second method(market) is based on information about the market price of similar purchase and sale transactions. Of course, with this method, a system of amendments is used, since there are practically no completely identical real estate objects. This method is easier to use, but assumes a developed real estate market and the availability of information about market prices for different properties.
Third method(profitable) proceeds from the premise that the value of the property is due to the future net income that can bring this property during its operation. To use this method, they are guided by information on rental rates for a similar property, data on possible losses in the collection of payments (due to the duration of the search for a tenant), information on the possibility of additional income from other forms of exploitation of the property.
For Russian conditions the development of mortgages as a form of securing the repayment of loans is yet to be, therefore the question of assessing real estate will become of particular relevance in the future. According to experts, at this stage, the most acceptable method is to determine the market value of the collateral object and issue a loan in the amount of 50-60% of it.
The most important element of the pledge mechanism is the drafting and execution of a pledge agreement, which reflects the entire range of legal relationships between the parties to pledge property or property rights.
In accordance with Russian legislation, a pledge agreement must meet certain requirements in terms of form and content.
To form pledge agreements are subject to the following requirements.
- The pledge agreement must be made in writing. As a rule, in Russian practice, a single document, signed by both parties and sealed.
- The mortgage agreement is subject to mandatory notarization. In Russian banking practice, notarial certification is subject to pledge agreements not only for real estate, but also for any other property of the client.
- The mortgage agreement is subject to registration with the local property management bodies of Russia.
- mortgage agreement state property is considered valid if it is given permission from local authorities of the State Property Committee.
Failure to comply with the specified requirements for the form of pledge of property or property rights of the pledgor shall entail its invalidity..
ToThe content of the pledge agreement (its main conditions) is subject to the following requirements by Russian legislation.
1. Reflection of the essence of the claim (obligation) secured by the pledge, its amount and the term of execution. If a pledge secures an obligation arising from a loan agreement, then the pledge agreement indicates who is the creditor and who is the borrower; the amount of the loan and interest due; loan maturity and interest payments.
2. Composition and value of the pledged property.
3. Type of pledge, reflecting the method of possession and disposal of the pledged property.
4. Rights and obligations of the parties in relation to the types of pledge.
In the event of a pledge, the rights and obligations of the parties are conditioned by the transfer
pledged property to the creditor (bank). In case of a firm pledge, pledge of goods in circulation or processing, the rights and obligations of the parties depend on the characteristics of the respective type of pledge.
5. Forms of organization of control over compliance with the terms of the contract. Specific methods of organizing control over the fulfillment of the terms of the pledge agreement depend on the method and disposal of the pledged property.
In the agreement a pledge providing for the right of ownership of the pledged property by the pledgee must be provided:
- obligation of the pledgee to insure the subject of pledge for full cost at the expense and in the interests of the pledger;
- the obligation of the pledgee to ensure measures to preserve possession of the pledged items;
- the obligation of the pledgee to immediately notify the pledgor if there is a threat of loss or damage to the pledged item;
- the obligation of the pledgee to send a report on the use of the pledge by Redmet, if such is provided for by the agreement;
Obligation of the pledgee to return the subject of pledge after
fulfillment by the pledgor of the obligation secured by the pledge.
In a pledge agreement with the abandonment of the pledged property with the pledgor (solid pledge, pledge of goods in circulation), mot ren the provisions concerning:
— the rights of the pledgee to require the pledger to take measures to preserve the subject of pledge;
- the pledger's obligation to maintain the minimum balance of pledged values at a certain level;
- the pledger's obligation to submit a report to the pledgee on the availability and condition of the pledged property;
- the rights of the pledgee to verify the size, composition and storage conditions of the pledged property according to the documents and on the spot.
In the case of a mortgage, the pledgor is obliged to maintain the property in good condition and pay expenses for its maintenance (unless the contract provides for other conditions), and the mortgagee has the right to verify the actual presence, condition and conditions of maintenance of the property according to the documents.
In the case of issuing a loan secured by valuables, in order to ensure its repayment, the bank must systematically check the compliance of the amount of the granted loan with the value of the pledged valuables, taking into account the degree of losses that may occur during the sale of these valuables.
An approximate scheme for checking loan security can be as follows, million rubles.:
2. The value of the pledged values
on the same date according to the borrower 700
3. Margin set by the bank
taking into account possible risk losses during the sale of 30% (of the value of the pledged values)
4. Real value of pledged values 700 - (30% of 700) = 490
5. Surplus (+), lack (-) of provision 520 - 490 = -30
Consequently, based on the results of checking the security of the issued loan, the bank found a decrease in the value of the pledged property and its deficiency in the amount of 30 million rubles. This means that it is necessary to present requirements to the borrower for the immediate replacement of the lost collateral for the specified amount. In some cases, the bank, after checking the composition of the pledged values on the spot, may require the replacement of some values with others, more liquid ones.
The final stage of the implementation of the pledge right and pledge vogo mechanism is the procedure for foreclosure on pledge. The basis for foreclosure on the pledged property or property rights is the default by the borrower of his obligation secured by the pledge.
With the date when the creditor (bank) has the right to levy execution n and on the mortgaged property may be: a) the moment of expiration of the term for fulfilling the obligation (loan term); b) the maturity of the loan plus grace period, stipulated by the treaty about the pledge.
The Civil Code of the Russian Federation establishes two ways to handle penalties. The first is by filing a lawsuit. It is used when:
- the subject of pledge is immovable property;
- the conclusion of a pledge agreement required the consent or permission of another person or body;
- the subject of pledge is property that has significant artistic, historical or other value for society;
- the pledger is absent and it is impossible to establish his location.
Appeal to the court of the creditor is carried out on the basis of a statement of claim with the application of the necessary documents.
The second way ..- without judgment- is used mainly in two cases:
- in relation to movable property, if it is provided for in the pledge agreement or established by an additional written agreement between the bank and the pledger;
- in relation to immovable property, if after the expiration of the payment term under the loan agreement, a notarized agreement is concluded between the bank and the mortgagor.
Realization of the pledged property under both methods of foreclosure is carried out by selling the pledged property at a public auction. The initial sale price of the property, from which the auction begins, is determined by: a) a court decision, if the foreclosure of the property is carried out in a judicial proceeding; b) by agreement of the pledgee with the pledger - in other cases.
The pledged property is sold to the person who offered the highest price at the auction.
If the amount received from the sale of the pledged property exceeds the satisfaction of the requirements of the creditor (bank), the remaining funds are transferred to the pledgor.
If the amount received from the sale of the pledged property is insufficient to cover the claims of the pledgee (creditor-bank), the missing amount of funds shall be satisfied in general order, i.e. no benefits based on collateral.
Provided that the auction will be declared invalid, the pledgee has the right to acquire property by agreement with the pledger.
If such a transaction does not take place, repeated auctions are announced, and in the event that they are also declared invalid, the pledgor has the right to retain the pledged item with an assessment of it in the amount of not more than 10% lower than the initial sale price at repeated auctions.
Table 13 1
| Ratio | Opportunity | ||||
| Rating | cost | Liquidity | realize | Examples for | |
| reliable | mortgaged | items | control | illustrations | |
| news | property | pledge | behind the subject | ||
| and loan amounts | pledge | ||||
| And you- | more or | easy to implement | fully | cash deposit in a bank listed | |
| juice) | equals 100% | price can | under the control of the bank | ||
| AT | less than 100% | fluctuate and may be difficult to implement | securities deposited with a bank | ||
| With | less than 100% | have problems with control | 1) not quoting valuable paper 2) inventories of goods and materials, at the client |
||
| D | less than 100% | the price is going down | there is a problem | inventories of goods and materials, | |
| there is a problem | with control | located | |||
| with implementation | at the client | ||||
| E | less than 100% | the price is going down | no control | client's inventory of valuables | |
In general, considering collateral as one of the forms of securing the repayment of a loan, it should be emphasized that such The guarantee is generated by the legally fixed property liability of the borrower to the creditor. This creates legal protection for the interests of the creditor.
The economic guarantee of repayment of a loan with a pledge is provided by: firstly, specific values and rights that are the subject of pledge (movable and immovable property, the borrower's rights to real estate); Secondly, common property of the client, and sometimes several persons -
For example, when pledging a bill, the bank gives preference to bills of exchange for which there is joint and several liability of the persons who gave transfer inscriptions. The guarantee of repayment of a loan secured by securities is financial stability organization that issued them.
Thus, the effectiveness of the pledge right is determined not only by the legal protection of the interests of the creditor, the quality of the collateral, but also by the general financial condition borrower. This conclusion means that the pledge of the borrower's property does not exclude taking into account his personal creditworthiness.
At the same time, it should be noted that the use of a pledge of the client's property as a form of securing the repayment of a loan contains a number of inconveniences. For the borrower, who must provide the lender with a certain subject of collateral, it becomes necessary to remove it from the sphere of its use. However, it is unprofitable for the borrower to deprive himself of the right to use movable property(raw material, finished products, vehicles etc.). Therefore, these types of property, as a rule, are not pledged. Mortgage-backed securities and promissory notes are used as collateral. On the other hand, leaving the borrower to use the pledged values provided for in the pledge agreement poses a certain risk for the lender and creates the need to organize control over their safety. The exception is mortgages.
Given these factors, in foreign practice, the quality of collateral is assessed as a form of securing the repayment of a loan.
At the same time, the criteria for the quality (reliability) of collateral are:
a) the ratio of the value of the pledged property and the amount of the loan;
b) liquidity of the pledged property;
c) the ability of the bank to exercise control over the pledged property.
In accordance with these criteria, five groups of collateral are distinguished, characterizing different reliability (Table 13.1).
In Russian practice, the quality of collateral, which is taken into account when classifying loans according to the degree of risk, determined by two criteria:
a) the ratio of the value of the pledged property and the amount of the loan
(including the amount of interest and possible costs associated with the implementation of security rights);
b) the degree of liquidity of the pledge.
The liquidity indicator of the pledge is the period of its implementation, not exceeding 150 days from the day when the implementation of pledge rights becomes necessary for the bank (no later than on the 30th day of the borrower's delay in regular payments to the bank for principal and interest).
For these criteria there are three levels of quality 2ShShga:
a) full compliance with the established criteria;
b) non-compliance with at least one of them;
c) non-compliance with both criteria.
