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The plaintiff's claim is dismissed.
Litigation costs shall be borne by the plaintiff.
Reasons
1. Basic facts
A. On July 31, 2018, the Defendant completed the registration of establishment of the right to collateral security (hereinafter referred to as “the right to collateral security”) 10 out of the Busan Southern-gu, Busan-gu, and 1 E apartment No. 1 (hereinafter “the instant real estate”). B. The Plaintiff completed the registration of establishment of the right to collateral security (hereinafter referred to as “the right to collateral security”) on the instant real estate on July 31, 2018, with regard to the obligor C and the maximum amount of claims 675 million won.
(c)
C On October 18, 2018, G died and succeeded to the instant real estate. On November 30, 2018, upon the Plaintiff’s request for auction, G filed a decision to commence an auction on the instant real estate on November 30, 2018 (hereinafter “instant auction procedure”). D.
In the auction procedure of this case, the real estate of this case was sold in KRW 200 million, and the sale price on January 30, 2020 was paid in full.
As of March 23, 2020, the Defendant reported the claim amounting to KRW 177,357,627 in total, as of March 23, 2020, and the Plaintiff reported the claim amounting to KRW 61,273,973.
E. Of the amount to be distributed, the Defendant received dividends of KRW 161,80,000 in total amount of the claims for registration of creation of the lower right in the second order, and the Plaintiff received dividends of KRW 28,552,00 in the third order. The Plaintiff received only the remaining amount of KRW 28,552,005 in total.
[Grounds for Recognition] Unsatisfy, Gap evidence Nos. 2, 3, 6, 9 (including various numbers), and the purport of the whole pleadings
2. The parties' assertion
A. The Plaintiff’s assertion Nos. 1 through 8 expired due to the lapse of the statute of limitations on the secured claim.
The Defendant, as the senior mortgagee, received the entire amount of the money including the maximum amount of the claim of the right to collateral security already extinguished, and subsequently the Plaintiff was unable to receive some of the amount of the reported claim. However, the amount of the Plaintiff’s dividends amounting to KRW 32,721,968 (=61,273,973), out of the amount of the money wrongfully distributed to the Defendant with the right to collateral security already extinguished.