Can they take away an apartment or a car for debts?

Legal aspects of the case

Today, creditors do not seek to take away housing when it is necessary to pay off the resulting debt. The explanation is quite simple: you have to wait a long time for a court decision, and there is no guarantee that it will be positive. Moreover, usually the arrears of consumer loan products are much lower than the nominal value of the apartment.

It also implies additional costs for paying financial attorneys, appraisers, and other persons. It turns out that you need to incur significant losses in advance without any certain hope of successful completion of the process. There is another important point - if the property is the only one, until recently it was strictly prohibited to take it away.

Today the situation has changed, since the preparation of the bill, which caused a public outcry, has been completed. It provides for the opportunity to “cut” the defaulter’s living space to the minimum established by law, even if the person has no other housing. In any case, there is no need to panic in advance, since there is a clear limitation in the project that justifies such an unpopular court decision.

General features of foreclosure on credit debt for apartments

Taking into account that consumer products are not issued for large sums, compared with mortgages, banks will not take away property. There is a logical explanation for this:

• The need to obtain a decision from the court, which is quite difficult. The amount of debt must be large enough to justify the seizure and subsequent sale of the home. Due to non-payment of even 100,000 rubles, no one will come to seize the property.
• It is not enough to simply take the apartment; it is important to successfully sell it, pay off debts, and, if possible, return the remaining funds to the former owner.

The situation becomes even more complicated when there are various types of encumbrances that significantly limit any types of disposal of this object:

• many people are registered;
• collateral issues, etc.

Therefore, when making statements to take away an apartment, the bank or collectors apply pressure, rather of a psychological nature. Faced with the possibility of losing property, people begin to look for options to get out of the current situation.

In what cases can an apartment be taken away?

The debtor’s salvation here is the registration of minor children in a “collateralized” apartment. The bank has the right to take away apartments purchased with a mortgage if the borrower refuses to fulfill financial obligations. Moreover, the likelihood that the judge will side with the debtor increases if this is the only living space.

It’s good if you own more than one type of property, otherwise when your apartment is taken away and you have nowhere to live, the situation is deplorable. According to the law, they cannot leave you on the street. But not everything is as simple as it seems. Let's look at ways to solve the problem, how to get out of the situation? In what cases can an apartment be taken away, even if it is the only housing?

The only housing

This rule is known today to many owners who exist on debt. If, apart from the apartment, there is nothing suitable for normal living, it is impossible to seize and then sell it. This condition applies if we are talking about a share of real estate.

Although, starting from November 15, 2015, after the Supreme Court adopted the relevant Resolution No. 50, the situation has changed somewhat. It recognizes the competence of the actions of bailiffs when seizing the only housing with the establishment of a number of restrictions. They concern those attempts made by debtors to dispose of disputed property, causing obstacles to collectors.

To put it more clearly, it became possible to seize an apartment, which will be considered “encumbered” until the borrower fully pays off the accumulated debts. At the same time, the ban applies to all types of transactions, including registration and moving in of someone. As a result, a person has the right to simply live and enjoy public amenities.

Why can an apartment be taken away?

No matter how difficult the debt situation may be, borrowers try to save their apartment by all means available to them. At the trial, they talk about a wide variety of issues, objecting to the alienation of the apartment. Borrowers cite the loss of their main job, the crisis, or a reduction in wages.

As explained to MK in the Moscow Arbitration Court, in this case the court can cancel dubious transactions for the last 3 years before the bankruptcy procedure. And then everything goes according to schedule: arrest, sale to pay off the debt. True, you will first need to prove that the transactions were made for the purpose of causing harm to the property rights of creditors. In addition, theoretically, the financial manager can enter into a conspiracy with the debtor and turn a blind eye to violations. But then the participants in this “case” will be able to count not only on debt write-off, but also on criminal prosecution. However, there is still no information about such practice in bankruptcy cases of individuals.

A child is registered in the apartment

In fact, the fact that children are registered in the disputed housing, after selling which the bank wants to return the money, does not become a legal basis for seizure and sale. The need to obtain consent from the guardianship authorities may act as a barrier. The latter are obliged to carry out all actions in full accordance with the interests of minors, which explains their reluctance to confirm such transactions. Although the decision may be positive if the parents have other property, it is important that the relocation does not lead to a deterioration in the child’s living conditions.

Factors when guardianship authorities refuse to take radical measures:

• results of analysis and assessment of family financial situation, status in society;
• the amount of debt in terms of the value of the property.

The final decision is always made by the court with the participation of representatives of the prosecutor's office who protect the interests of minors.

Shared ownership of real estate

Shared ownership of real estate can be a serious source of conflict. Often, shareholders are unable to agree on a comfortable use of joint property for everyone - due to reluctance to live with someone under the same roof, refusal to pay utility bills, etc. But even more often, the stumbling block becomes the fact that all shareholders are not going to live together under one roof, but neither are they going to sell their shares for someone else’s benefit.

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Share in an apartment

In this case, the general rules according to which collection occurs will “work”. However, it is necessary to take into account all the nuances:

• availability of other housing;
• encumbrances in the form of a registered child.

The following problem may also arise: the debtor owns real estate, and the bank is authorized to collect the share where close relatives also live. And here trouble awaits everyone:

• the owner is deprived of a certain share;
• his family could be evicted.

It is difficult to find those who want to buy a small part, it is problematic to get rid of such a “broken” object, which explains the involvement of collectors in solving the problems. But their actions are completely unpredictable, even to the point of creating unbearable conditions. Typically, such conflicts end with the payment of the required amount, a kind of “redemption” of one’s own share.

Why can an apartment be taken away?

The last chance to save mortgage housing for habitual defaulters is to undergo restructuring. And first in the bank - and only in case of refusal - in court. If the debt exceeds 500 tr. and the delay is more than 90 days, you may well file for bankruptcy and to restructure your debt. But in both cases, the principle described above works: housing is mortgaged - they can be kicked out onto the street. Simply restructuring in court will allow you to save your mortgaged apartment and write off some of your debts. The main thing in this case is the official permanent income of the debtor. And yet, whether a person will be able to pay and whether to keep his home will be decided by the court.

Let's consider another option: a certain citizen transferred property to his family and friends in advance, and then refused to repay the debts. He has only one home left in his property, or nothing at all. Nothing to sell, nothing to even arrest. Then the law on bankruptcy of individuals comes to the aid of the creditor. A claim is filed for bankruptcy of the debtor. The court appoints a financial manager who controls the accounts, real estate and transactions of the defaulter. The “auditor” discovers that the debtor recently sold or donated his property. It’s easy to find out: just get an extract from the Unified State Register...

Nuances of the new law

The time is not far off when Russians will have to say goodbye to housing, provided that:

• its cost will cover the delays;
• the debtor exceeds the established minimum standards.

Such measures will be aimed only at persistent violators who do not pay off debts on existing payments. This includes alimony, other socially significant payments, traffic police fines imposed for violations committed on the country’s roads.

Obviously, financial structures will not be able to take away the apartment because of this. The immediate scheme of such a development of events is as follows:

• the court takes the side of the creditor;
• the borrower’s living space is confiscated (taken away) by the bailiff;
• then the real estate is sold;
• the debtor receives the amount to purchase an apartment based on the minimum standard.

For various constituent entities of the Russian Federation, the figures range from 14 to 18 sq.m. for each family member. It’s easy to calculate, for four people (husband, wife, two children), this room is 56-72 m².

The law allows for the recovery of those apartments whose sizes exceed the minimum by 2 times. Although options are possible - it is enough to register relatives in a timely manner, which will tip the scale of justice on the side of the debtor.

In what cases can an apartment be taken away?

Actions of collectors that are considered illegal First of all, you need to remember that no bank or collectors have any legal right to seize any property without court permission. In such cases, you can immediately contact the appropriate services. If there are threats to health and life from collectors, this is also a good reason to contact the police.

Considering the fact that consumer loans rarely represent very large amounts, for example, comparable to a mortgage, banks rarely decide to foreclose on the apartments of debtors, because: In most cases, declaring the possibility of taking an apartment for debts on a consumer loan, banks and collectors simply exert psychological pressure on the debtor.

Alienation procedure

So what can bailiffs take?

If an appropriate decision is made, FSSP inspectors have the right to seize the apartment with a mandatory assessment of the housing. The borrower can file a protest against the established value, which will significantly delay the consideration of the case. Upon final verdict, the lender will be offered to buy the property.

The alienation procedure begins only after a decision has been made. Then they send a letter indicating the market value of the property, and a week is given to think about it. If after 10 days it has not been possible to sell the property, it can be put up for auction with repeated auctions a month later without reducing the price set by the court.

If the sale is successful, the former owner has two weeks to move out. Otherwise, a one-year “respite” is given. For the specified period, restrictions on residence are lifted; the lender will be able to initiate re-bidding after 12 months, during which debt obligations can be repaid. Which will be a good reason to stop the started procedure.

Under what conditions can property be taken from a person?

With the development of capitalism in Russia, when former state property has already been divided, the number of cases of so-called Household raiding increases. This term refers to the assignment of ownership rights primarily to apartments, houses, garages and land plots. Unfortunately, the law is on the side of household raiders. Now we will look at several typical cases of property seizure and ways to counter them.

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Mortgage arrears

Many citizens are faced with a rather serious problem when financial troubles do not allow them to make timely payments on their invoices. This is especially important when it comes to housing purchased in installments. Unfortunately, it is worth recognizing that in most cases the court takes the side of the creditors, although there are options to correct the current situation.

Sometimes it is enough to register minors in the disputed apartment, especially if it is the only one. But you should not firmly count on the leniency of judges, since the next development option is quite possible - seizure of property by a bailiff.

The optimal option would be a personal visit to a banking structure with the preparation of compelling arguments in your favor, justifying the existing economic problems. It must be proven that this is:

• temporary phenomenon;
• you are not unemployed;
• ready to cooperate;
• make every possible effort to solve the problems that arise.

According to the new rules, it is possible to allocate funds to the defaulter sufficient to purchase a smaller home, or the provision of suitable premises is mandatory.

Why can an apartment be taken away?

The only housing can be taken away only in one case: the unpaid debt is secured by real estate. For example, if you take out a mortgage, the apartment remains pledged to the bank until the debt is fully paid. You also cannot dispose of the mortgaged apartment (sell, or “remortgage”) until you pay off. True, the fact of the pledge must be registered in the official register (USRE). This is common practice for concluding the same mortgage agreement.

As explained to ligazakon.ru in the Moscow Arbitration Court , in this case the court can cancel dubious transactions for the last 3 years before the bankruptcy procedure. And then everything goes according to schedule: arrest, sale to pay off the debt. True, you will first need to prove that the transactions were made for the purpose of causing harm to the property rights of creditors. In addition, theoretically, the financial manager can enter into a conspiracy with the debtor and turn a blind eye to violations. But then the participants in this “case” will be able to count not only on debt write-off, but also on criminal prosecution. However, there is still no information about such practice in bankruptcy cases of individuals.

Debts on utility bills

Delays in paying for utilities, especially if the amount of debt is significant, become the basis for the housing and communal services to prepare a writ of execution in order to begin proceedings in court to collect money. In this case, real estate is taken into account, acting as a reliable guarantor of repayment of all payments. This is an excellent way to encourage citizens who have made mistakes to correct the situation for the better.

If the property is private, what can the bailiff do?

Take away, but only in the following situations:

• the family debtor has a place to live;
• mortgaged property is collected in accordance with the relevant Federal Law;
• in the presence of a court decision.

When an apartment is the only place suitable for living, the debt has arisen under a mortgage, based on Article 446 of the Code of Civil Procedure of the Russian Federation, it cannot be used to cover the resulting financial obligations.

The absence of valid reasons for non-payment of rent in public housing for six months becomes grounds for losing it with the eviction of debtors by court to another premises at the rate of 6 m2 per person.

What can they take away?

Real estate. Even if this is the only housing, if it was purchased on credit with a mortgage, they will take it away for your sweet soul. In fact, the mortgaged apartment does not belong to the owner until he has fully paid for it. Therefore, the courts, without any particular qualms of conscience, make decisions in favor of the banks, allowing them to confiscate the pledged square meters.

An apartment can also be seized in favor of alimony arrears. If, of course, the debt is very large, and the debtor very maliciously avoids it (according to the documents, he’s naked as a falcon, but in fact, it’s like he’s rolling around in butter, or he lives simply like everyone else and doesn’t deny himself anything special).

Don't pay your utilities? An apartment can be seized for this too. With municipal housing, everything is generally simple. And if the apartment is privatized, then they are arrested only if the amount of the debt has reached the cost of the apartment itself. Then it will be confiscated and put under the hammer.

Automobile. Banks can squeeze out self-propelled chariots without any problems at all, especially if there was a delay on the car loan. However, malicious non-payment of a regular consumer loan can also be repaid by seizing and selling the car. The courts are very willing to do this. To do this, the creditor only needs to prove that there is a delay.

In addition to cars and consumer loans, cars are also confiscated to pay off alimony and utility debts.

For consumer loans

When protecting the rights of debtors, the law provides for several exceptions relating to real estate. This circumstance significantly limits the actions of banks, based on the characteristics of a particular case and the legal status of the residential premises. For example, it is quite difficult to lose the property in which you live. Unless the total amount of non-payments significantly exceeds its value. In some cases, they can take the car for debts.

At what amount of debt to the Federal Tax Service can an apartment be seized?

- land plots on which the objects specified in paragraph two of this part are located, with the exception of the property specified in this paragraph, if it is the subject of a mortgage and can be foreclosed on in accordance with the legislation on mortgages;

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- residential premises (parts thereof), if for the debtor citizen and members of his family living together in the premises owned, it is the only premises suitable for permanent residence, with the exception of the property specified in this paragraph, if it is the subject of a mortgage and on it in in accordance with the legislation on mortgage foreclosure may be made;

The process of further sale of property

Based on the provisions of the draft law that has not yet been adopted, the discretion of the court remains the right to decide on the possibility of seizure of property and the sale of the only apartment. But only if there are no other ways to close outstanding financial obligations.

It is all the more important to clearly understand that before the draft comes into force, such actions on the part of the judiciary are illegal. Seized housing must be returned to the owners. The question still remains open: to accept or reject this law, since even in the State Duma there is no consensus. If the decision is positive, debtors will be required to repay overdue loans through the sale of their only living space.

Actually, the process is standard and is within the competence of bailiffs. They are responsible for preparing a package of documents and further implementation after the relevant resolution is received.

Features include the following:

• the court may set the minimum amount that the debtor has the right to count on in order to purchase new property that fully complies with legal norms and requirements;
• no one dares to simply throw a person out into the street;
• To determine the cost, experts are invited whose services are paid;
• the interests of each family member are taken into account;
• the lender has the right to purchase the property within one week;
• ten days later, tenders are announced while maintaining the established value; the procedure can be repeated a month after the first;
• The sold apartment must be vacated within two weeks.

Until the adoption of a new law, they proceed from Article 446 of the LC. Not a single legal act of the Russian Federation contains permission to sell land or surplus residential space.

Bailiffs: rights and responsibilities

If a trial was held over you and your debts, at which it was recognized that the statute of limitations had not passed, the appearance of a bailiff will not be long in coming. However, he must follow the notification or seizure procedure. Since few debtors understand the law, bailiffs often impose their own conditions.

Firstly, the bailiff assures that according to judicial enforcement proceedings , he can come to your home at any time and seize the necessary property. In fact, the bailiff is obliged to notify the debtor about when and where he will seize the property. This is a mandatory procedure, failure to comply with which may result in a trial against the bailiff himself. An appeal against the actions of a bailiff is carried out in accordance with the Law on Enforcement Proceedings, Article 122. It states that the debtor has the right to file a complaint with the court against the actions of the bailiff within 10 days.

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