Legal analysis
According to Article 410 of the Civil Law of People's Republic of China (PRC), when a dispute over creditor's rights and debts is brought to court, there is property available for execution in the execution stage, that is, a mortgaged house. The mortgagee and the mortgagor may first reach an agreement on the way to realize the mortgage right. If no agreement can be reached, the mortgagee may request the people's court to auction or sell the mortgaged property.
Because the house has the problem of secondary mortgage, it involves the order of mortgage exercise. If the same property is mortgaged to more than two creditors, the sequence of mortgagees must be determined when realizing the mortgage right. The general rules are as follows:
1. If the mortgage is registered, it shall be paid off in the order of registration;
2. The registered mortgage is paid before the unregistered mortgage;
3 mortgage unregistered, according to the proportion of creditor's rights.
When the debtor fails to perform the due debt or the parties agree to realize the mortgage right, the mortgagee may dispose of the collateral and give priority to its value.
There are two main ways to realize mortgage:
1. The mortgagee and the mortgagor agree to obtain the ownership of the collateral at a discount, but the interests of other creditors shall not be harmed.
2. If no agreement is reached on how to realize the mortgage, the mortgagee may request the people's court to auction or sell the mortgaged property. The part of the mortgaged property that exceeds the property price belongs to the mortgagor, and the insufficient part is paid off by the debtor.
legal ground
Article 410 of the Civil Code of People's Republic of China (PRC) * * * If the debtor fails to perform the due debt or realize the mortgage right according to the agreement of the parties, the mortgagee may agree with the mortgagor to discount the mortgaged property or give priority to compensation with the price of auction or sale of the mortgaged property. If the agreement harms the interests of other creditors, other creditors may request the people's court to cancel the agreement.
If the mortgagee and the mortgagor cannot reach an agreement on the way to realize the mortgage, the mortgagee may request the people's court to auction or sell the mortgaged property.
Where the mortgaged property is discounted or sold, it shall refer to the market price.
Article 414 Where the same property is mortgaged to two or more creditors, the proceeds from auction or sale of the mortgaged property shall be paid off in accordance with the following provisions:
(1) If the mortgage has been registered, the order of repayment shall be determined according to the time of registration;
(2) Compensation that has been registered but not registered before mortgage;
(3) If the mortgage is not registered, it shall be paid in proportion to the creditor's rights.
Other registrable security interests shall be handled with reference to the provisions of the preceding paragraph.