Many young women, having received maternity capital from the state, invest it in the acquisition of real estate. And this process takes place according to the following scheme: young parents buy an apartment or a house with a mortgage and part of the mortgage loan is paid out of the maternity capital. And everything would be fine, but sometimes financial difficulties come and the apartment owners cannot fulfill their financial obligations.
A credit institution has the right to take an apartment in a mortgage for further sale in order to pay off the mortgage debt.
As a rule, this does not happen immediately. The bank waits for several months from the debtor to pay off the debt on missed payments, fines, penalties and penalties. How long to wait depends on the bank, some wait several months, some up to a year. The debtor is regularly reminded of the debt that has arisen, trying to obtain information about his future solvency. Sometimes they meet halfway: they restructure the debt, provide credit holidays, etc.
But sooner or later, if the debtor does not agree with the bank, he can take the apartment. Even a mortgage. Even if she is the only home of the debtor. Even if maternity capital was used during the purchase.
According to article 446 of the Civil Procedure Code of the Russian Federation, an apartment, which is the only housing of the debtor, cannot be levied under executive documents, except in cases where the apartment is the subject of a mortgage. Indeed, if the bank could not forcibly sell the property of the insolvent borrower, the meaning of mortgage lending would be lost. Mortgages would have acquired a legal way not to repay the loan, and banks would not give out mortgages.
It is worth noting that when the debtor's apartment is sold, the bank will not take care of its benefit, so the apartment will be sold at a price slightly lower than the market price. From the proceeds, first of all, the full debt on the mortgage loan, penalties, fines and penalties will be paid off.
Secondly, the bank will take a certain percentage for the full support of the purchase and sale of real estate.
Thirdly, at the request of the guardianship authorities, part of the funds corresponding to the shares of children in the apartment will be directed to special accounts and will be kept on them until their majority. Parents will be able to dispose of these funds only with the permission of the guardianship authorities.
The remaining funds will be paid to the failed mortgagee, the former owner of the apartment.
But there are specially stipulated cases when the bank cannot take the apartment. These are cases when the violation of obligations by the debtor is insignificant and clearly disproportionate to the cost of the apartment. That is, if the loan overdue does not exceed 3 months, and the total amount of arrears is less than 5% of the cost of the apartment, the court will not satisfy the bank's claims for foreclosure on the apartment.
In other words, if both of these requirements are met simultaneously, the bank will not be able to take away the apartment. And he will not even try, since bank lawyers are well aware of this nuance.
The fact that part of the mortgage was paid by the parent's capital does not in any way affect whether the bank can take the apartment. If you look at the merits, the owner of the maternity capital has already spent it on improving housing conditions, that is, he did everything according to the law.
After the registration of the sale and purchase of an apartment, the children are allocated shares in it (the condition for using the mother capital), and in order to alienate these shares, the bank will have to obtain permission for this from the guardianship and trusteeship authorities. This is the only difficulty that a bank will have to face when selling an apartment.
On the basis of Article 20 of the Federal Law No. 48 "On Guardianship and Trusteeship", real estate owned by the ward is not subject to alienation, except in cases of foreclosure on the subject of pledge. The apartment is the collateral in the mortgage loan. Therefore, the bank has the right to sell real estate with shares of minors in them, but it is still obliged to obtain consent for this.
As a rule, the guardianship authorities, in cases where a significant amount of money remains after the repayment of the loan debt, obliges to create a special children's account and put on it funds commensurate with their former shares in the apartment. In the event that after the sale of the apartment and the repayment of the debt there is no money left, it controls the actions of the bank.
If the bank sells an apartment with a minor's share in it, then the guardianship and trusteeship authorities will be obliged to file a lawsuit against this bank with a requirement to declare this transaction illegal.
