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1. The plaintiff's claim is dismissed.
2. The costs of lawsuit shall be borne by the Plaintiff.
Reasons
Basic Facts
On October 11, 2001, the registration of creation of a mortgage (hereinafter referred to as the “registration of the instant mortgage”) was completed on October 1, 2001 with the maximum debt amount of KRW 300 million, the mortgagee of the right to collateral security, the plaintiff of the right to collateral security, and the debtor, who was owned by the defendant, on the 69,719 square meters (hereinafter referred to as the “instant real estate”).
Since then, the decision to commence voluntary auction was made on the instant real estate by the application of Cheongju District Court Jeju Branch E with respect to D, and the instant real estate was sold to F, G, and H on June 22, 2015, and the Plaintiff received dividends of KRW 20,11,710 from the distribution procedure (hereinafter “instant distribution procedure”) on July 27, 2015.
Meanwhile, the registration of the establishment of a neighboring mortgage-holder, the Plaintiff, and the Defendant was completed with respect to the instant real estate owned by the Defendant, as well as KRW 23,405 square meters (hereinafter “family real estate”). However, the lower court, upon the Plaintiff’s application, voluntarily rendered a decision to commence the auction to J of the Government District Court on March 14, 2016, and subsequently received a dividend of KRW 165,251,891 on March 14, 2016.
[Grounds for recognition] The Plaintiff’s assertion that the Plaintiff asserted the purport of the evidence Nos. 1, 2, 3, 6, and 3, and the purport of the entire pleadings, is presumed to exist, since the registration of collateral security in this case was completed on the real estate in this case, the existence of the Plaintiff’s secured debt against the Defendant is presumed, and further, the Plaintiff did not raise any objection from the Defendant even though the Plaintiff received dividends in the distribution procedure. Therefore, it is presumed that the Plaintiff’s claim to return the loan amounting to KRW 210 million against the Defendant is established.
Therefore, the defendant deducted dividends of KRW 20,000 from KRW 352,713,698 plus interest of KRW 142,713,698, plus KRW 200,000,000 ( KRW 352,713,698 - KRW 20,111,710, and KRW 10,000,000 for principal and interest of KRW 210,00,000 for the plaintiff.