The distribution of claims in accordance with the claim statement that has reduced the amount of claims is legitimate

In an auction procedure for the exercise of a security right, the creditor applying for auction may submit a claim statement that reduces the amount of the claim until the distribution schedule is prepared thereafter. In this case, the distribution court shall distribute the amount of claims on the basis of the reduced amount of claims in the claim statement.

Incheon District Court-2017-Ga group-2624 ( October 11, 2017)

O Saemaul Fund

Korea

2017.08.09

oly 11, 2017

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

Cheong-gu Office

With respect to this Court's auction case of real estate rental, the amount of 60,982,702 won against the defendant among the dividend table prepared by this Court on January 18, 2017 shall be 48,216,032 won, and the amount of 179,149,050 won against the plaintiff shall be 191,915,720 won, respectively, shall be corrected to 191,915,720 won.

1. Basic facts

The Plaintiff lent KRW 161,00,000 to KimO, and on December 23, 2010, set the right to collateral security of KRW 209,30,000 with respect to KRW 231,00,00, the amount of maximum debt regarding KRW 1506, the Incheon Bupyeong-gu, Incheon, Bupyeong-gu, KimO owned by KimO.

On March 21, 2016, the Plaintiff filed an application for voluntary auction with respect to the above apartment by stating that “a loan of KRW 166,813,210, and KRW 158,00,000 out of the above money shall be interest at the rate of 19% from March 18, 2016 to the date of full payment.” Accordingly, the voluntary auction procedure commenced on March 22, 2016.

On December 22, 2016, the Plaintiff submitted a claim statement stating that the amount of the claim is KRW 158,00,000,000 for principal and interest from July 24, 2015 to July 24, 2015, interest of KRW 21,149,050 for other incidental claims, including incidental claims of KRW 2,874,90 for other expenses, and KRW 182,023,950 for the aforementioned voluntary auction procedure.

From 240,40,412 won to be actually distributed after deducting KRW 3,516,207 for enforcement expenses on January 18, 2017, the auction court distributed KRW 271,660 to Bupyeong-gu Incheon Metropolitan City, which is the person holding the right to deliver the pertinent tax, KRW 179,149,050 for the Plaintiff who is the person holding the right to deliver the pertinent tax, and KRW 179,149,050 for the Plaintiff who is the person holding the right to deliver the pertinent tax, and KRW 21,149,050 for the interest + KRW 21,149,050 for the interest).

On the date of distribution, the Plaintiff raised an objection to KRW 12,766,670 out of the amount of dividends against the Defendant, and filed the instant lawsuit within seven days.

[Reasons for Recognition] Facts without dispute, Gap 1-3 evidence, Eul 1-2 evidence, the purport of the whole pleadings

2. The plaintiff's assertion

In accordance with the application for auction, the Plaintiff received dividends of KRW 192,062,90,00 and KRW 192,062,90 per annum until the date of full payment, but the auction court paid only KRW 179,149,050, which was less than KRW 12,913,858, and distributed the remainder to the Defendant, subordinate to the Defendant. Therefore, the Plaintiff sought to delete KRW 12,76,670, which was the amount of the Plaintiff’s objection to the distribution from the amount of dividends to the Defendant and distribute the Plaintiff.

3. Determination

In an auction procedure for exercising a security right, a creditor applying for auction may not extend the amount of a claim stated in the application for auction by submitting a statement of claim accounts, except in extenuating circumstances. However, a creditor may submit a statement of claim that reduces the amount of a claim until the distribution schedule is prepared thereafter. In such cases, the distribution court is bound to distribute the amount of claim based on the reduced amount of claim indicated in the statement of claim, and as long as it is impossible to distribute the amount of claim in excess of the amount of claim, the distribution schedule based on the statement of claim pursuant to such statement shall be deemed to have been duly prepared (see, e.g., Supreme Court Decision 2001Da305

In this case, the Plaintiff stated in the application for voluntary auction the principal and interest on the date of full payment;

Since then, from July 24, 2015 to July 24, 2015, a statement of claim amounting to KRW 21,149,050, which is stated as the incidental claim amounting to KRW 2,874,90, such as the principal and interest claim, and other expenses, was submitted. Therefore, the instant statement of claim distribution, which was fully distributed by the executing court in accordance with the above statement of claim, is justifiable, and the Plaintiff’s above assertion is not acceptable (On the other hand, the Plaintiff did not state the principal and interest claim, but did not state any other matters that may include incidental claim, such as other expenses, in the application for voluntary auction, and the execution expenses were preferentially repaid in the auction procedure).

4. Conclusion

The plaintiff's claim is dismissed for lack of reason.