The sale of pledged immovable property is governed by the legal provisions stipulated by Federal Law No. 102-FZ "On Mortgage (Pledge of Real Estate)". The new version of this legislative act provides for a number of additions and changes that came into force on 01.01.2019.
General concepts of public auction
In order to understand the specifics of holding public auctions for the sale of real estate within the framework of the relatively new legal norms of Russian legislation, it is required to understand some concepts.
Place of the organization of the public auction. It is directly linked to the real estate object to be sold.
Publication term. Within ten days from the date of the auction, a notice is published, which indicates information about the holding of this event (subject, place and date of the auction, the cost of material assets).
Public auction notice. On the official website of the FSSP, with the simultaneous notification of the territorial divisions of this service, information about the planned auction is published. Its participants must pay a fixed deposit, which is usually 5% of the initial value of material assets. Moreover, the deposit is fully refunded if the auction is declared invalid. And provided that the subject that won the auction refuses to pay for the items of the auction, this deposit will not be returned to him.
Contract. The agreement between the organizer of the auction and the entity that won the auction contains information about the transaction, which is entered in the Unified State Register.
Participants. The number of subjects admitted to the auction is limited. As a rule, only persons who have the right to use these objects (relatives, friends and acquaintances of the pledger), as well as the pledgee, are admitted to the auction.
Registration of the transaction. An entity is recognized as the winning bidder on the basis of the highest bid price. After the auction, a sales contract is concluded. Payment for it must be made within five days to the account of the event organizer. Moreover, the previously deposited collateral is fully included in the cost of the transaction.
Recognition of the auction invalid. A public auction is considered canceled if the number of its participants is less than two, as well as in the absence of payment from the winning entity. After the auction is recognized as failed, the owner of the subject of the auction may become the pledgee, or the auction may be appointed again. In the latter case, the time of their holding should be appointed no earlier than a month later, and the initial cost of material assets should be reduced by 15%.
In addition, the public auction may be canceled if the parties to the disputed legal relationship conclude a peace agreement. If this became possible after the publication of the auction date, the debtor is obliged to pay all costs incurred by the organizer of the auction.
Withdrawal of material values. The most common form of enforcement of a court decision in the framework of enforcement proceedings is the seizure of property. At the same time, five days after the seizure is imposed, a direct seizure of material assets (in part or in full) is carried out, which is executed by an employee of the FSSP.
Implementation of objects. The specificity of the sale of seized property is similar to the rules provided for pledge. However, this procedure is exclusively handled by an authorized government agency.
Recognition of the subject as insolvent. In case of bankruptcy of legal entities and individuals, auctions for the sale of pledged property are carried out at the stage of external management and bankruptcy proceedings.
Regulatory innovations. Currently, the acquirer of the property is determined solely by price on an auction basis and is completely exempt from any creditors' restrictions. Previously, this aspect (conditions for the use of property by the new owner) was regulated by Federal Law No. 127, which focused on the rights of creditors.
Types of trades. In this context, there are open and closed events. In the first case, public bidding implies the participation of any entities. In the latter version, the event for the realization of material values is focused exclusively on the invited participants. This also applies to the method of submitting quotations. So, open (orally) or closed (sealed envelope) form determines the status of the event. Auctions can also be held in a mixed form, when, for example, an event that is closed in terms of its participants implies an open form of price offers.
Public auction notice
The text of the notice is the basic basis for conducting public auctions. Therefore, this document should be drawn up in strict accordance with the thematic requirements. Often, the notice of an auction is equated with a public offer. It is important to understand that distortion of information in the text of the notice, which influenced the result of the auction, may entail the cancellation of their results or their invalidation.
The notice must reflect the following information:
- terms of the transaction (subject of the auction, its value and encumbrance);
- information about the copyright holder or owner;
- data on the procedure for holding the auction (place, time and form of holding, who is the organizer, procedure for registration of participation and determination of the winner).
The following nuances can be cited as typical precedents of thematic judicial practice in our country:
- implicit criteria for evaluating applications;
- the price of the deposit is unreasonably high;
- distortion of the parameters of the object, which influenced the idea of it;
- incomplete description of the object's encumbrances;
- incomplete information about the characteristics of the object;
- violation of the necessary opportunity to familiarize with the documents from which the exercised right arose.
The publication of the notice of the auction is carried out in accordance with the required minimum, which includes the website of the unit of the bailiff service, the federal website of the FSSP and the official mass media of local authorities. Currently, the arbitration practice for these publications has developed the necessary criteria for their assessment, which take into account the mandatory presence of a printed text (excluding the use of only radio and television broadcasting), target audience, regional characteristics and full availability of information.
Order of conduct
The general rules for the implementation of public trades imply the following features.
These auctions are held in the form of an auction in which the debtor's property is sold at the highest price.
The notice of the auction must be published no later than 30 days before the auction. It must contain complete information about the subject, place, time, procedure (registration of participation) and the form of the auction, as well as the initial price and determination of the winner.
To participate in the public auction, applicants must pay an appropriate deposit. Its size and procedure for entering are indicated in the notice. The deposit is refunded in case of cancellation of the auction, as well as if the subject participates in it, when he did not become the winner. The person who won the auction makes the payment in accordance with the sale and purchase agreement, taking into account the deposit.
The organizer has the right to cancel them no later than three days before the holding of the public auction.
The concept of “persons who participated in the auction, but did not win it” excludes participants who did not appear at the event and those persons who did not make any allowances to the original price of the property.
On the day of the auction, the relevant protocol is signed between the winner and the organizer, which has the legal force of an agreement.
Bidding will take place only if at least two entities participate in them. And the winner is the participant with the highest bid.
If the participant who won the auction refuses to sign the protocol, then he loses the deposit. And the organizer, who avoided signing the protocol, returns to the winner the deposit in double amount and reimburses him all the costs of participation in the auction, which exceed the amount of the deposit.
Recognition of the auction invalid
The auction is declared invalid in the following cases:
- less than two participants applied for participation in the auction;
- the attendance at the auction was less than two participants;
- no one has made allowances to the original price of material assets;
- the winner of the auction has not paid the full cost of the auction item to the organizer's account within five days.
Since the purpose of the auction in this case has not been achieved, repeated bidding is appointed. A new date for holding public auctions is set after the auction is declared invalid within a period of 10 to 30 days.
In all cases, excluding the fact that the winner of the auction did not pay the full value of the property, the secondary auction is carried out with a decrease in the original cost by 15%. All other rules for conducting secondary trading are in accordance with the procedure for conducting the primary auction. It is important to understand that at the suit of an interested person, the court may recognize the auction as invalid if the procedure for its conduct was violated.
The regulations governing the procedure for holding public auctions for various property are as follows:
- mortgage of real estate - Art. 56-58 FZ "On mortgages (pledges of real estate)";
- pledge of other property - Art. 350 of the Civil Code of the Russian Federation;
- sale of securities - Art. 89 (part 4) of the Federal Law "On Enforcement Proceedings".
