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The appeal is dismissed.
The costs of appeal are assessed against the Plaintiff.
Reasons
The grounds of appeal are examined.
1. In determining whether a fraudulent act is a subject of creditor revocation, if an asset owned by an obligor is provided as a physical collateral for another obligee’s claims, the portion offered as a physical collateral cannot be deemed as the obligor’s liability property for the general obligees. Therefore, the obligor’s active property should be assessed only after deducting the amount of the secured claim held by other obligees from the value of the asset offered as a physical collateral.
(see, e.g., Supreme Court Decision 2010Da64792, Jan. 12, 2012). In cases where a joint mortgage has been established on several real estate, the amount of secured claims on each real estate should be deemed as the amount apportioned by proportion to the amount of secured claims on each real estate subject to joint mortgage in proportion to the value of each real estate subject to joint mortgage, barring any special circumstance, in light of the purport of Article 368 of the Civil Act.
However, in the event that part of the several real estate are owned by the obligor and other parts are owned by the surety, considering that the surety is in the position of the obligor to exercise the mortgage on the real estate owned by the obligor by subrogation under the provisions of Articles 481 and 482 of the Civil Act, the amount of the secured debt borne by the surety is the total amount of the secured debt secured by the joint mortgage within the limit of the value of the immovables owned by the obligor, unless there are special circumstances where the surety is unable to exercise the right to indemnity on the obligor, and the amount of the secured debt borne by the surety owned by the surety is the remainder after the amount of the secured debt secured by the joint mortgage is excluded from the amount
This legal principle is the ownership of some shares of one co-owned real estate, and another share is the property of the surety.