In a case where dividends have been distributed in excess of the maximum amount of debt during the real estate auction procedure, but there is no surplus to be distributed to the owner even after revising the distribution schedule, whether the owner has the benefit to bring an action of demurrer against distribution

Unless there exist special circumstances, such as that the rate of interest on the secured debt of subordinated mortgage exceeds the rate of interest on the secured debt of the joint mortgagee, the owner and the debtor do not have any benefit in filing a lawsuit to seek rectification of the distribution schedule of the subsequent auction procedure, with the purport that the court, which held the auction first, did not distribute a part of the proceeds from the auction, and later distributes the amount equivalent to the maximum debt amount of the right to collateral security to the creditor, and ultimately distributes the amount exceeding the maximum debt amount. However, if the total dividend amount is within the scope of the debt to the creditor, and the distribution of the excess portion would result in the performance of the debtor's debt, and even if the illegal distribution is corrected, the subsequent auction procedure would have no surplus that would have to return to the owner, barring any special circumstances, such as that the rate of interest on the secured debt of subordinated mortgage exceeds the maximum debt amount of the joint mortgagee and increases the dividend amount of the junior mortgagee.

Article 659 of the Civil Procedure Act

Handbags

Egression

1. The plaintiff's lawsuit shall be dismissed.

2. Litigation costs shall be borne by the plaintiff.

Of the distribution schedule prepared on March 14, 1995, the amount of KRW 300,00,000,000 for the defendant (appointed parties; hereinafter referred to as the defendant) and the designated parties and the amount of KRW 239,681,704, Nonparty 217,026,754 of the amount of distribution for the financial resources, Nonparty 217,026,754 of the amount of distribution for the financial resources, shall be corrected as KRW 277,345,050, respectively.

1. Basic facts

The following facts are not disputed between the parties, or can be acknowledged by comprehensively considering the whole purport of the pleading in each of the evidence Nos. 1, 2, 3-1, 2, 4, 1 and 2, and there is no counter-proof.

(1) Around February 1992, the Plaintiff borrowed 300,000,000 won from the Defendant and the Appointor, and 250,000,000 won from July 1 of the same year, each interest rate was set at 2% per month, and as a security, around September 1993, the Plaintiff received the registration of establishment of a mortgage as to the real estate stated in the attached list (1) of the real estate owned by the Defendant and the Appointor as to the real estate owned by the non-party in the attached list of the non-party loans as of September 24, 1993 as of September 24, 1993, with the maximum debt amount of 300,000,000 won as of September 5, 1993; and thereafter, on November 1, 1993, the Plaintiff received the registration of establishment of a mortgage as to the land and building listed in the attached list (2) of the non-party loans owned by the Plaintiff.

(2) The Defendant and the designated parties received dividends of KRW 60,318,296 in the voluntary auction procedure of the Seoul District Court (Seoul District Court Decision 94Mo8501, North Korea Branch of the Seoul District Court (Seoul District Court Decision 94Mo8501, Nov. 10, 1994).

(3) Thereafter, the voluntary auction procedure of this case was conducted with respect to each of the real properties listed in the same list (2) and (3) under the same support of 94 amb.8020, and the same support was conducted on the date of distribution on March 14, 1995, with the first priority order of 1,529,840 won, 300,000 won to the defendant and the selector, and 300,000 won, 300,000 won to the defendant and the selector, and 45,000,000 won to the Jung-gu Office in the fourth priority order of 306,510,510 won to the Jung-gu Office in the fourth priority order of 306,938,216 won (100,000 won to the third priority order) to the non-party Kim Jong-gu and the non-party 217,85,27637,785 won to the dividend distribution schedule.

(4) As of March 14, 1995, the above date of distribution was at least 300,000,000 won when the principal and interest were added to the claims against the plaintiff by the defendant and the designated parties as of March 14, 1995 (as of February 22, 1992, the amount of 10,000,000 won as of February 22, 1992, and 20,000,000 won as of July 1, 1992, there is no dispute between the parties, and the plaintiff was 00,000,000 won as of May 25, 1993 + 200,000 won as of the above 112,50,000,000 won as of the same date when the defendant and the designated parties received £« 200,50,000 won as of the above 10,500,000 won as of the above interest rate of 100,200.

2. The plaintiff's assertion

The Plaintiff asserts that each establishment registration of a collateral for the Defendant and the designated parties, completed each of the real estate listed in the attached list, was conducted to jointly secure the Plaintiff’s obligation to the Defendant and the designated parties within the limit of KRW 300,00,000. The Defendant and the designated parties received KRW 60,318,296 out of the proceeds from the sale of the real estate listed in the attached list (1). As such, the amount to be apportioned to the Defendant and the designated parties during the instant auction procedure shall be KRW 239,681,704, which deducts the maximum debt amount of KRW 60,318,296,00 from the amount of KRW 30,00,00,000. Accordingly, the amount of dividends for the Defendant and the designated parties shall also be corrected from KRW 217,026,754 to KRW 27,345,050.

3. Whether there exists a benefit of lawsuit;

In a case where additional collateral security has been established as to a certain real estate for the guarantee of the same obligation after the establishment of the collateral security right with respect to a certain real estate for the guarantee of obligation, even if a voluntary auction procedure has been conducted separately for each real estate, the amount that the mortgagee of the collateral security right can be apportioned from the proceeds of sale of each real estate shall not exceed the limit of the maximum debt amount of the right to collateral security established first. Thus, even though the defendant and the designated parties had already been apportioned the amount of KRW 60,318,296 out of the proceeds of sale of the real estate listed in the attached Table (1) based on the above collateral security right, even if the distribution court once distributed the amount of KRW 300,00,000, which is the maximum debt amount to the defendant and the designated parties during the auction

However, for the plaintiff to have the interest in the lawsuit of this case, the plaintiff should have a substantial interest in the case where the distribution schedule is revised in accordance with the plaintiff's argument compared to the case where the distribution schedule is revised in accordance with the distribution schedule prepared in the auction procedure of this case. Among both cases, the auction proceeds of this case are distributed to the creditors, and there is no amount to be paid as surplus to the plaintiff who is the debtor and owner of some real estate. As seen above, as of March 14, 1995, the total debt owed to the defendant and the designated parties as of March 14, 1995, exceeds 30 million won. Thus, even if the distribution schedule is revised in accordance with the above distribution schedule, the plaintiff's repayment of debt owed to the defendant and the designated parties, even if the distribution schedule is revised as of the plaintiff's assertion, there is no difference in the total interest rate for each plaintiff's creditor, but there is no difference in the interest rate for the plaintiff's creditor and the designated parties to this case's claim that there is no interest in the plaintiff's claim against the plaintiff's 2.

3. Conclusion

If so, the plaintiff's claim of this case is unlawful as there is no benefit of lawsuit, and it is dismissed (attached Form omitted).

Judges Kim Jae-gu (Presiding Judge) Cho Jae-gu (Presiding Judge)