The bank accepts the entrustment of the principal to issue loans to the borrower (the borrower knows that the principal exists), and the borrower provides collateral to guarantee the loan. The bank is the mortgagee on the mortgage registration. If the borrower can't pay off the due loan, the client can directly exercise the mortgage right on the collateral involved without going through the bank.

1. Hongling Company (the client) signed the Entrusted Loan Contract with Zhongnan Company (the borrower) and Xingsha Rural Commercial Bank (the lender), and the lender accepted the entrustment of the client and issued entrusted loans totaling 400 million yuan to the borrower.

2. Zhongnan Company signed the Maximum Mortgage Contract with Xingsha Rural Commercial Bank, mortgaged Lansheng Building under its name to the bank, and registered the mortgage. The mortgagee is Xingsha Rural Commercial Bank.

3. Zhongnan Company was unable to pay off the due loan, and Hongling Company appealed to the court, demanding that the collateral involved be mortgaged.

Does Hongling Company enjoy the mortgage right to the collateral involved?

Does Hongling Company have the mortgage right for the projects under construction (including the first floor of Langsheng Building/No.KLOC-0/14)? China Post Changsha Branch appealed that Hongling Company was not a party to the maximum mortgage contract, nor was it the mortgagee of Langsheng Building, so it had no right to claim the mortgage. We believe that although the mortgagee agreed in the Maximum Mortgage Contract is Xingsha Rural Commercial Bank and the registered mortgagee is Xingsha Rural Commercial Bank, the signing of the Maximum Mortgage Contract is to provide mortgage guarantee for the 400 million yuan loan, interest and related expenses entrusted by Hongling Company to Xingsha Rural Commercial Bank under the Entrusted Loan Contract. Hongling Company, Zhongnan Company and Xingsha Rural Commercial Bank all know that the loan involved was provided by Hongling Company, and Langsheng Building also set up a mortgage guarantee for the loan of 400 million yuan, so Hongling Company has the right to directly claim its creditor's rights under the Entrusted Loan Contract and the mortgage right under the Maximum Mortgage Contract from Zhongnan Company.

(20 18) the Supreme People's Court 1 12

law of contract

Article 402 A contract concluded by the agent in his own name with a third party within the scope authorized by the principal, if the third party knew the agency relationship between the agent and the principal when concluding the contract, the contract directly binds the principal and the third party, unless there is definite evidence to prove that the contract only binds the agent and the third party.

law of property

Article 203 Where the debtor or a third party provides the secured property for the continuous creditor's rights in order to perform the guaranteed debt within a certain period of time, and the debtor fails to perform the due debt or realize the mortgage right according to the agreement of the parties, the mortgagee has the right to be paid in priority for the secured property within the maximum amount of creditor's rights.

The creditor's rights before the establishment of the maximum mortgage may be transferred to the creditor's rights secured by the maximum mortgage with the consent of the parties.

If the mortgagee and creditor are not unified in form, does it have no mortgage effect? The author once cited the case of the Supreme Court to sort it out (see annex for details). The Supreme Court held that creditors and mortgagees are unified in essence, although they are inconsistent in form. At this time, there is no harm to the legitimate rights and interests of others, and the mortgage should be deemed to be valid. Then, on the basis of this view, who has the right to exercise the mortgage in practice? Does the actual mortgagee have the right to directly exercise the mortgage right to the nominal mortgagee as the entity mortgagee? There is controversy in practice. The author thinks that when signing the mortgage contract, the client, the nominal mortgagee and the mortgagor all know the existence of the entrustment relationship and have no objection to it. The mortgage contract directly binds the client and the mortgagor, supports the client's direct application to the court to claim the mortgage right, respects the autonomy of the party and does not harm the rights and interests of others, which is understandable. This case supports the author's above viewpoint and is hereby recommended!