Achievement-Henan Xianwei Law Firm

05/152024

Real estate development enterprises have the priority right to be compensated for the auction price of the sold houses after assuming phased guarantee responsibilities

IntroductionIn recent years,due to the impact of the economic situation,the risk of real estate development enterprises bearing phased guarantee responsibilities has been increasing.If the developer has no choice but to assume the guarantee responsibility for repayment,how can they protect their legitimate rights and interests?This article combines real cases handled by lawyers to provide some inspiration for real estate development enterprises to handle such disputes.[Case Description]The client is a real estate real estate limited company in Luoyang City.In March 2013,the client company,as the seller,signed a pre-sale contract for commercial housing with the buyer Wang,and sold a property developed by the company located in Luolong District,Luoyang City to Wang.After signing the pre-sale contract for commercial housing,Wang paid the down payment of the house price and applied for a loan to pay the remaining amount.However,in the subsequent performance process,Wang did not repay the loan principal and interest to the mortgage loan bank as agreed,nor did he complete the formal mortgage registration as agreed,resulting in the mortgage loan bank deducting Wang's outstanding loan principal and interest totaling more than 90000 yuan from the customer's company account.Due to Wang's involvement in other debt disputes,in June 2023,the house involved in the case was auctioned and executed by the people's court in a separate case,and the remaining loan amount of the house involved in the case has also been taken away by the mortgage loan bank in a priority repayment right manner.Based on this situation,the company entrusted a professional team of lawyers to intervene.[Case handling process]After accepting the commission,the lawyer first sued the buyer Wang as the defendant and the mortgage loan bank as a third party for the right of recovery.In addition,in order to avoid the client company being trapped in the dilemma of being short of property and finances,they immediately communicated and contacted the execution court of the auction case involving the house and the handling court of the dispute,filed a preservation application for the auction proceeds of the house involved,and completed the litigation preservation and filing work in the shortest possible time,minimizing the losses of the enterprise.On the other hand,before the promulgation of the"Interpretation of the Guarantee System",there was no clear regulation on the effectiveness of mortgage advance notice registration.Therefore,in practice,there has been controversy over whether the holder of the right to advance notice registration can claim the exercise of mortgage rights for parties who have not completed mortgage registration but have already completed advance notice registration after signing the mortgage contract.Firstly,through comparing such cases,the lawyer believes that although the property involved in the case has not undergone formal mortgage registration,the reason for not completing formal mortgage registration is due to the buyer's own fault,and the large certificate of the building where the property is located has already been registered for the first time.According to the relevant provisions of Article 18 and Article 52 of the Interpretation of the Supreme People's Court on the Application of the Guarantee System of the Civil Code of the People's Republic of China,the client company not only enjoys the right to guarantee property,but also has the priority right to recover the auction price of the property involved.After the court investigation was completed,the lawyer actively communicated with the presiding judge about the focus of the dispute,and provided a large number of professional articles and discussions on such disputes in various courts.Finally,the court adopted our agency opinion and ruled that the buyer Wang paid the client company more than 90000 yuan in outstanding payment.At the same time,the client company has the right to priority compensation for the proceeds from the auction and sale of the property involved within the scope of the above-mentioned debt.Due to the fact that the auction proceeds involved in the case have already been preserved and frozen in advance,the client company has successfully received the execution proceeds after receiving the winning judgment.The handling lawyers for this case are Lawyer Xiao Chun and Lawyer Du Xinxin.Lawyer Introduction

04/242023

Lawyer Ding Haoyu - Exhibition of Results of Equity Transfer Dispute Cases

　　Case Name:First instance dispute over equity transfer between Wang Ligang and Xu Huibo　　Undertakers:Yang Xintao and Ding Haoyu　　Cause of action:Equity transfer dispute　　Case summary:The plaintiff requested the defendant to pay a temporary equity transfer fee of 200000 yuan according to the"Equity Transfer Agreement"filed with the Industry and Commerce Bureau.The defendant claimed that the agreement was only for the purpose of changing the formal documents submitted for shareholder registration,and the price was not a true expression of the intentions of both parties.　　Result:During the second instance,both parties reached a settlement,and the appellant withdrew their appeal request to close the case.　　Business achievements:　　1、Case handling ideas　　The defendant in this case claimed that it was because the defendant first sued the plaintiff to repay a loan of 200000 yuan and received support from the court.The plaintiff used the Equity Transfer Agreement to demand payment of the equity transfer fee in order to avoid debt.Through the investigation of the company involved in this case,we found that the operating form of the company is poor,with a registered capital of 2 million yuan.However,the actual owner's equity of the company in 2014 was only 90000 yuan.As a previous shareholder of the company,the plaintiff transferred the equity without paying the subscribed registered capital.Therefore,the Equity Transfer Agreement involved in this case is not a true expression of the intentions of both parties.Its purpose is only to handle the registration of industrial and commercial changes,replace the legal representative of the company,and reverse the difficulties faced by the company.The so-called equity transfer price is only a simple copy of the registered capital,because the defendant had weak legal awareness and signed such a equity transfer agreement.　　2、Proxy opinion　　1.The Equity Transfer Agreement does not represent the true intentions of both parties and meets the statutory conditions for revocation.　　2.The obvious purpose of Wang Ligang's lawsuit is to evade debt.　　3.In this case,Rungang Company should be added as a third party to participate in the lawsuit to avoid litigation and waste of judicial resources.　　3、The work carried out in case handling　　1.Communicate with the parties involved to understand the situation of the case and form an initial defense plan;　　2.Refer to relevant laws and judicial interpretations,and draft legal documents;　　3.Communicate with the parties involved and inform them of legal risks;　　4.Carry out case filing work.　　4、Case summary and experience:　　The equity transfer agreement disputed in this case has been filed with the Administration for Industry and Commerce,with clear and concise records.Both parties have not signed a supplementary contract,and the defendant Xu Huibo has been actively involved in the company's operations before.Now,the equity has been actually transferred and the change registration has been completed.Therefore,whether the revocation of the equity transfer contract is based on significant misunderstandings or obvious unfair reasons,there is a certain degree of uncontrollability in this case.The client expresses understanding and recognition.As the ancient Chinese saying goes,"First the petty,then the gentleman."Even friends should follow the rules and avoid unnecessary precautions just because they are afraid of trouble.Otherwise,once disputes arise,it will cause great inconvenience to one's own life and greater harm to the relationship between friends.　　In addition,while applying the document template,the parties should sign a supplementary contract based on the true intention expressed by both parties privately,in order to prevent possible legal risks.The case focuses on legal facts rather than objective facts,and filing a lawsuit is actually evidence.Therefore,it is better to be prepared in advance.Sometimes,although there may be many reasons,insufficient evidence may also lead to losing the case.In this case,****,both parties have reached a settlement,which is also a good outcome.

04/242023

Lawyer Cao Mingzhe - Exhibition of Results of Savings Contract Dispute Cases

　　Case Name:Plaintiff Liu Wei v.Defendant Bank of China Luoyang Branch and Bank of China Luoyang Stadium Road Branch Savings Contract Dispute Case.　　Undertaker:Cao Mingzhe(acting as the agent for the second defendant,Bank of China)　　Cause of action:Dispute over savings contract　　Case summary:The plaintiff filed a lawsuit with the Xigong Court claiming that the balance of 6000 yuan in the card was stolen and swiped.The plaintiff demanded that the two defendants bear compensation liability on the grounds that they did not properly safeguard the security of the depositor's account.　　Result:The plaintiff's lawsuit request was rejected.　　Business achievements:　　1.Case characteristics:Although the amount involved in this case is relatively small,the defendant Bank of China,as a state-owned enterprise,has a significant impact on the final outcome of the case.Bank of China values social influence more in this case,so it should collect evidence that is as helpful as possible to the case outcome,in order to facilitate the court's investigation of the facts.　　2.Case handling experience:Through the handling of this case,I have become more convinced of the importance of evidence in civil litigation,even if it is not directly related to the case.As long as it can form a chain of evidence with the main evidence,it can still achieve twice the result with half the effort and ultimately affect the judgment of the case.　　3.Highlight:The highlight of this case is the transfer record of the plaintiff's bank card from China UnionPay Henan Branch,which was applied to be retrieved from the court.The evidence collection process was difficult,and it was only after three visits to Zhengzhou with the court judge that the evidence was successfully collected,providing favorable support for the verdict of this case.

04/242023

Lawyer He Jiazi - Exhibition of Contract Dispute Case Results

　　Case Name:Guo Jingjing v.Luoyang Kaifeng Real Estate Development Co.,Ltd　　Undertakers:Su Dongge,He Jiazi　　Cause of case:Disputes over sales contracts for commercial housing　　Case Description:　　The plaintiff Guo Jingjing and the defendant Development Real Estate Company signed a loan agreement on November 2,2015.The two parties agreed that Development Real Estate Company would borrow 1 million yuan from Guo Jingjing for a period of one month,with interest paid at a rate of 3%per month.If the repayment was not made on time,a penalty of 0.5%per day would be charged for the overdue amount.On the day of signing the agreement,the plaintiff Guo Jingjing transferred 1 million yuan to the Development Real Estate Company through bank transfer as agreed.The Later Development Real Estate Company failed to repay the loan upon maturity,and the two parties reached an agreement on December 17,2015,agreeing that Guo Jingjing would purchase two commercial properties developed by the Development Real Estate Company.Previously,the 1 million yuan loan from the Development Real Estate Company would be used to offset Guo Jingjing's purchase price.Both parties have agreed that if the development real estate company repays all the loans and interest before March 10,2016,the commercial housing sales contract can be terminated.On December 17,2015,Guo Jingjing signed two pre-sale contracts for commercial housing with Kaifeng Real Estate Company.The defendant,the development real estate company,has not yet repaid the loan and has not fulfilled the pre-sale contract for commercial housing.They even sold two commercial properties to a third party and registered them with advance notice.On June 3,2016,Guo Jingjing filed a lawsuit with the court demanding that the development real estate company fulfill the contract according to the agreement.　　Result:As of now,the court has ruled that the reasons for the defendant's separate prosecution are not valid　　Reject their lawsuit.　　Business achievements:Firstly,since the filing of the case by the plaintiff Guo Jingjing,the defendant,the Development Real Estate Company,has used various means to delay the litigation process,transforming passivity into initiative.From raising jurisdictional objections and appeals at the time of filing,to submitting a request to suspend the trial during the trial period,the defendant filed a separate lawsuit on the grounds of obvious unfairness,requesting the revocation of two purchase contracts.The series of litigation techniques adopted by the defendant in the procedure may be detrimental to our side,but they can also be used as a reference.　　Secondly,one of the main controversies in this case is whether the two pre-sale contracts for commercial housing signed by both parties are obviously unfair and whether they can be revoked;In addition,whether the two pre-sale contracts for commercial housing involved in the case were guarantees taken by the plaintiff for loans,and whether they can be determined as civil loan disputes in accordance with Article 24 of the"Provisions of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Civil Loan Cases".

04/242023

Lawyer Song Heng - Exhibition of Results of Disputes over Commercial Housing Sales Contracts

　　Case Results Display　　Lawyer Song Heng　　Case Name:Liu Qingwen v.Luoyang Zhengda Real Estate Co.,Ltd　　Undertakers:Yang Lin and Song Heng　　Cause of case:Disputes over sales contracts for commercial housing　　Result:First instance win　　Business achievement:The plaintiff Liu Qingwen,as the buyer,purchased a commercial property developed by Zhengda Real Estate.The actual floor height of the commercial property delivered by the defendant was significantly lower than the agreed floor height in the contract,which made it impossible for the plaintiff to use the commercial property reasonably and thus prevented the plaintiff from achieving the purpose of the contract.The defendant constituted a fundamental breach of contract.The plaintiff demanded the termination of the contract and demanded that the defendant return the plaintiff's purchase price and interest,as well as pay a penalty for breach of contract.　　Case characteristics:This case is a typical commercial housing sales contract dispute,and the focus of the dispute is not the common problems of overdue delivery and housing quality,but a relatively rare issue of housing floor height.The contract stipulates a floor height of 6.5 meters per floor,but the defendant added a mezzanine to the first floor of the house without authorization,transforming it into a second floor,increasing the area of the house,increasing the price of the house,but also reducing the floor height,resulting in the plaintiff's inability to achieve its intended use.　　Case handling experience:1.To search for the floor height and net height of the commercial buildings specified by the state,and see if the floor height of the house in this case meets the national regulations;2.The floor height agreed upon in the pre-sale contract for commercial housing is beneficial to our side,and we need to seize this key point to make the other party unable to refute it.3.It should be emphasized that when the plaintiff purchased the***house,they were not aware of the structure and actual floor height of the house,and the defendant did not fulfill their obligation to inform.In the trial,the defendant also failed to provide corresponding evidence to prove that the plaintiff was aware of the structure of the house.