2016 grouped 17387 Demurrer against distribution

A

B

January 24, 2017

January 31, 2017

1. The plaintiff's claim is dismissed.

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

Of the distribution schedule prepared by the above court on June 15, 2016 in the Jeonju District Court C real estate auction case, the amount of 25,269,096 won against the defendant shall be corrected to 0 won, and the amount of 80,000,000 won against the plaintiff shall be corrected to 105,269,096 won, respectively.

1. Basic facts

A. As to the land of this case owned by Nonparty D, the maximum debt amount of KRW 80 million was set on October 25, 2004, the debtor D, the plaintiff as the mortgagee, the right to collateral security, and the mortgagee as of June 20, 201, the debtor-based maximum debt amount of KRW 50 million as of June 20, 201, the debtor-based limited liability company, the debtor F-mortgage, the defendant as the right to collateral security (hereinafter referred to as the "mortgage 1 and 2") were respectively set.

B. After that, on September 4, 2015, the registration of ownership transfer was completed in the name of Nonparty G with respect to the instant land. On September 8, 2015, upon the Plaintiff’s voluntary auction application, the first mortgagee of the instant land, the registration procedure was commenced with the Jeonju District Court C on September 8, 2015 (hereinafter “instant auction procedure”).

C. In the instant auction procedure, the Plaintiff, the first mortgagee of the instant case, reported the claim amounting to KRW 126,630,136 (the principal amount of KRW 80 million, interest KRW 46,630,136) in the said auction court. However, the said auction court prepared a distribution schedule that distributes the amount of KRW 105,269,096 to the Plaintiff, the first mortgagee of the instant lawsuit, who was the second mortgagee of the instant case, to the Defendant, the second mortgagee of the instant case, the sum of KRW 25,269,096 (hereinafter referred to as the “instant distribution schedule”).

D. On June 20, 2016, the Plaintiff appeared on the aforementioned date of distribution, and raised an objection against the entire amount distributed to the Defendant, and thereafter filed a lawsuit of demurrer against the distribution of this case.

[Ground of recognition] Unsatisfy, Gap evidence No. 1-1, the purport of the whole pleadings

2. Judgment on the plaintiff's claim

A. The plaintiff's claim

The Defendant: (a) on December 27, 2013, with respect to the loan No. 901 of H No. 9 (hereinafter referred to as “the loan of this case”) owned by Nonparty D, the Defendant created the obligor D, the maximum debt amount of which is KRW 50 million, and the Defendant’s mortgage holder; (b) on the other hand, the foregoing collateral and the secondary collateral security obligation of this case are not separate, but the same obligation against the Defendant of Nonparty D.

However, in the auction procedure of real estate auction conducted in the court I with respect to the loan of this case, the defendant received the payment of the above claim against the non-party D, so even though the defendant did not receive the payment from the non-party D with respect to the above claim, the distribution schedule of this case was prepared to distribute the defendant 25,269,096 won in the auction procedure of this case to the non-party D. Thus, the distribution schedule of this case should be revised by allocating the defendant 25,269,096 won distributed to the defendant as above to the plaintiff.

B. Determination

Therefore, with respect to the loan of this case owned by Nonparty D, the maximum debt amount of KRW 35 million as of June 17, 201, the debtor D, the mortgagee D, the mortgagee’s right to collateral security, the maximum debt amount of KRW 50 million as of December 27, 2013, the debtor D, the Defendant’s right to collateral security, and the Defendant’s right to collateral security, have been established respectively. Upon the Defendant’s voluntary auction application for the loan of this case, the auction procedure for the real estate was initiated with I of the Jeonju District Court on August 21, 2014. At the above auction procedure, the Defendant did not have the dispute over KRW 35 million as of May 13, 2015, and the order of priority 42,985 as of April 27, 2013 (the collateral security on June 17, 2013) or the overall purport of the pleading between the parties concerned is recognized.

However, there is no evidence to acknowledge that the secured debt of the right to collateral security established as of December 27, 2013 and the secured debt of the right to collateral security of this case with respect to the land of this case. Rather, in full view of the arguments written in Eul Nos. 1, 3, 4, and 5, the defendant, under the joint and several surety of Non-Party D, set 30 million won at 30% per annum of 30% on September 17, 2011, and then, on the premise that the notary public of this case set the joint and several surety of this case 20,000 won on the land of this case 20,000 won as of September 17, 201, the joint and several surety of this case 20,000 won as of June 20, 2011, 30,000 won as to the land of this case set forth in the No. 2, which was owned by non-party No. 2, 33347,2015.

3. Conclusion

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

Judges Lee Dong-won