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1. The plaintiff's claim is dismissed.
2. The costs of lawsuit shall be borne by the Plaintiff.
Reasons
1. Facts of recognition;
A. The plaintiff filed a lawsuit for the return of unjust enrichment by Busan District Court 2004Kadan17937 and received a judgment in favor of the plaintiff to the effect that the plaintiff is entitled to 51,262,930 won and damages for delay, which became final and conclusive at the appellate court as the withdrawal of appeal.
B. On September 6, 1993, the registration of creation of a neighboring mortgage (the maximum amount of credit amount 50 million won) was completed under the name of the Busan District Court's Dong branch court's 659 on September 6, 1993 with respect to the land and buildings located in Busan Shipping Daegu D (hereinafter "the instant real estate"), but the registration of transfer was completed on June 8, 200 with the Busan District Court's Dong branch's 37144 on June 8, 2000 to Chocheon-dong Co., Ltd. on the ground of the transfer of confirmed claim as of June 7, 200, and the registration was completed on May 28, 2008 with the Busan District Court's Dong branch's 48013 on May 28, 2008.
C. On June 28, 2013, E applied for a compulsory auction on the instant real estate and the land of Busan Shipping Daegu, which was owned by C on the basis of the retirement allowance claim, with the Busan District Court’s Dong Branch Branch G compulsory auction, and accordingly, the compulsory auction procedure (hereinafter “instant auction procedure”).
In the auction procedure of this case, the plaintiff applied for a demand for distribution based on the above judgment in favor of the above part of favor against C, and the defendant applied for a demand for distribution as a mortgagee.
E. The instant real estate was awarded to H for sale in KRW 217,55,00, and the auction court prepared a distribution schedule (hereinafter “instant distribution schedule”) that distributes the amount of KRW 214,915,647 to be distributed on the date of distribution opened on September 16, 2014 (i.e., sales proceeds of KRW 217,55,570, interest of KRW 245,777 - enforcement costs of KRW 2,885,130) as follows.
5,688,547 5,688,547 2, Defendant 2-mortgage 50,000,000 50,000,000 for a creditor’s second-mortgage 5,688,5472.