Babaskin Anatoly Yurevich. The acquisition by the mortgagee ownership of the mortgaged property in civil law of Ukraine
This article highlights some aspects of civil law regulating entry mortgagee ownership of the mortgaged property out of court and the court. By law the mortgagee (the mortgagee) is entitled to the collateral (mortgage) in the property. The provisions of Article 37 of the Law of Ukraine «On Mortgage» expressly provides for the right of a mortgagee in possession of the mortgaged in extrajudicial foreclosure of the mortgage. As for the possibility of acquiring ownership of the mortgagee mortgaged, if the mortgagee did not realize ways extrajudicial foreclosure of the mortgaged property, the latter, at first glance, may apply to the court to foreclose on the mortgaged property under Article 39 of said law, not a claim for recognition of ownership of real property. However, as the existing jurisprudence of this conclusion is not clear. While some courts hold the position according to which, if the mortgagee did not realize ways extrajudicial foreclosure of the mortgaged property, he may apply to the court only action for foreclosure of the mortgaged property in accordance with Article 39 of the Law of Ukraine «On Mortgage» but not a claim for recognition of ownership of real property. In contrast, in other cases, courts have met the relevant claims mortgagees, referring to the fact that Articles 36, 37 of the Law of Ukraine «On Mortgage» does not exclude the possibility of foreclosure and thus acquiring mortgagee ownership of the mortgaged property by court order. No single approach courts in my opinion due to the fact that the language rights of the mortgagee in Article 1 of the Law of Ukraine «On Pledge», and their formulation in Article 572 of the Civil Code of Ukraine and Article 1 of the Law of Ukraine «On Mortgage» is different. If according to the Law of Ukraine «On Pledge» mortgagee has the right to enjoy the value of the mortgaged property, according to the provisions of Article 572 of the Civil Code of Ukraine lender (mortgagee) and Article 1 of the Law of Ukraine «On Mortgage» mortgagee (mortgage holder) has the right to enjoy by mortgaged property. It is clear that the mere concept of «due mortgaged property» is broader than the concept «of value» mortgaged property.
So if by design collateral that emerged in Ukraine in the 90 years of the 20th century, collateral had to be realized, and the mortgagee was to receive funds for the modern design of collateral, the parties may stipulate the mortgagor acquisition of title to the mortgaged at court settlement. Considering told proposed to bring the definition of «collateral» contained in Article 1 of the Law of Ukraine «On Pledge» in line definition of «collateral» contained in Article 572 of the Civil Code of Ukraine and Article 1 of the Law of Ukraine «On Mortgage».
In addition to these final settlement of the above question amends the first paragraph of Article 37 of the Law of Ukraine «On Mortgage» found that one of the grounds for the acquiring mortgagee ownership of the mortgaged property is a court decision, and supplement that article of the Law of the paragraph to read: «mortgagor acquires the ownership of the mortgaged property by court order at a price that will be determined subject to assessment activities within the proceedings and will appear in the court’s decision». Also, in order to speed up the procedure of state registration of ownership of real property by the mortgagee should amend the Procedure state registration of rights to immovable property and their encumbrances, approved by the Cabinet of Ministers of Ukraine dated 17 October 2013 g. N 868 by setting it in the list of documents to be presented in such a case the mortgagee to register ownership of the mortgaged property.
Key words: mortgage, mortgage contract, the mortgagor, the mortgagee.
