Introduction

In recent years,due to the impact of the economic situation,the risk of real estate development enterprises bearing phased guarantee responsibilities has been increasing.If the developer has no choice but to assume the guarantee responsibility for repayment,how can they protect their legitimate rights and interests?This article combines real cases handled by lawyers to provide some inspiration for real estate development enterprises to handle such disputes.

[Case Description]

The client is a real estate real estate limited company in Luoyang City.In March 2013,the client company,as the seller,signed a pre-sale contract for commercial housing with the buyer Wang,and sold a property developed by the company located in Luolong District,Luoyang City to Wang.After signing the pre-sale contract for commercial housing,Wang paid the down payment of the house price and applied for a loan to pay the remaining amount.However,in the subsequent performance process,Wang did not repay the loan principal and interest to the mortgage loan bank as agreed,nor did he complete the formal mortgage registration as agreed,resulting in the mortgage loan bank deducting Wang's outstanding loan principal and interest totaling more than 90000 yuan from the customer's company account.Due to Wang's involvement in other debt disputes,in June 2023,the house involved in the case was auctioned and executed by the people's court in a separate case,and the remaining loan amount of the house involved in the case has also been taken away by the mortgage loan bank in a priority repayment right manner.Based on this situation,the company entrusted a professional team of lawyers to intervene.

[Case handling process]

After accepting the commission,the lawyer first sued the buyer Wang as the defendant and the mortgage loan bank as a third party for the right of recovery.In addition,in order to avoid the client company being trapped in the dilemma of being short of property and finances,they immediately communicated and contacted the execution court of the auction case involving the house and the handling court of the dispute,filed a preservation application for the auction proceeds of the house involved,and completed the litigation preservation and filing work in the shortest possible time,minimizing the losses of the enterprise.

On the other hand,before the promulgation of the"Interpretation of the Guarantee System",there was no clear regulation on the effectiveness of mortgage advance notice registration.Therefore,in practice,there has been controversy over whether the holder of the right to advance notice registration can claim the exercise of mortgage rights for parties who have not completed mortgage registration but have already completed advance notice registration after signing the mortgage contract.Firstly,through comparing such cases,the lawyer believes that although the property involved in the case has not undergone formal mortgage registration,the reason for not completing formal mortgage registration is due to the buyer's own fault,and the large certificate of the building where the property is located has already been registered for the first time.According to the relevant provisions of Article 18 and Article 52 of the Interpretation of the Supreme People's Court on the Application of the Guarantee System of the Civil Code of the People's Republic of China,the client company not only enjoys the right to guarantee property,but also has the priority right to recover the auction price of the property involved.

After the court investigation was completed,the lawyer actively communicated with the presiding judge about the focus of the dispute,and provided a large number of professional articles and discussions on such disputes in various courts.Finally,the court adopted our agency opinion and ruled that the buyer Wang paid the client company more than 90000 yuan in outstanding payment.At the same time,the client company has the right to priority compensation for the proceeds from the auction and sale of the property involved within the scope of the above-mentioned debt.Due to the fact that the auction proceeds involved in the case have already been preserved and frozen in advance,the client company has successfully received the execution proceeds after receiving the winning judgment.

The handling lawyers for this case are Lawyer Xiao Chun and Lawyer Du Xinxin.

Lawyer Introduction