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1. The plaintiff's appeal is dismissed.
2. The costs of appeal shall be borne by the Plaintiff.
Purport of claim and appeal
The first instance court.
Reasons
1. Facts of recognition;
A. On October 22, 1991, H borrowed KRW 40,00,00 from D on behalf of C with a maturity of 30% per annum on June 22, 1993 (hereinafter “instant loan”). On behalf of the Plaintiff on the same day, H completed the registration of the establishment of a mortgage over the instant real estate owned by the Plaintiff, with a view to securing the obligation of the instant loan on behalf of the Plaintiff, KRW 60,000,000 with a maximum amount of debt, C, a debtor, a mortgagee D, a joint collateral security D, and E, in order to secure the obligation of the instant loan.
(hereinafter “instant collateral security”). (b)
At the time of the establishment of the instant mortgage, the first priority mortgage was established on October 29, 1985 in the name of the Korea Housing and Commercial Bank.
C. D applied for a voluntary auction of the instant real estate based on the instant right to collateral security, and on September 24, 1993, the Suwon District Court decided to commence the auction on September 24, 1993, and on the same day, the registration of the decision to commence the auction was completed.
D On April 12, 1994, with respect to the loan amount of this case between the Plaintiff and H on behalf of the Plaintiff and C, D made a loan agreement with the effect that “the repayment date: the debtor, the Plaintiff, and C, agree to repay the full amount of the debt to the creditor D within one month after the cancellation of the Korea Housing and Commercial Bank’s mortgage on the real estate.” The special agreement provides that the creditor shall postpone an auction and postpone the repayment as of the due date (the “the loan agreement of this case”).
E. On February 15, 2012, D transferred the instant loan claim to the Defendant. On April 17, 2012, the Defendant completed the supplementary registration of the transfer of the right to collateral security in the name of the Defendant on the ground of the transfer of finalized claim on February 15, 2012.
[Ground of recognition] Facts without dispute, Gap evidence 1, Eul evidence 1 through 3, 11, 15, 21 and 23 (including additional numbers), the testimony of the witness D and the purport of the whole pleadings
2. Judgment on the parties' arguments
A. The Plaintiff’s assertion 1 of the parties concerned is the secured debt of the instant mortgage.