1. The plaintiff's claim is dismissed.

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

1. Basic facts

A. D completed the registration of creation of a collateral security (hereinafter “instant collateral security”) with respect to the building F of Michuhol-gu Incheon Metropolitan City E (hereinafter “instant real estate”) by the Incheon District Court No. 48871, Jun. 11, 2012, which was received on June 11, 2012; and completed the registration of creation of a collateral security (hereinafter “instant collateral security”) with the maximum debt amount of KRW 49.44 million, which was received on June 11, 2012.

B. On April 18, 2018, on the basis of the instant collateral security, the Incheon District Court CVoluntary Auction procedure was initiated regarding the instant real estate.

C. On June 20, 2018, the Plaintiff completed the registration of transfer on the ground of the transfer of confirmed claim (No. 228978, which was received on June 20, 2018) during the said auction procedure.

On May 8, 2018, the Defendant: (a) leased the instant real estate to the auction court on March 23, 2016; (b) leased the lease deposit of KRW 23 million; and (c) completed the move-in report on March 28, 2016; and (d) submitted a report on the right and a request for distribution to the effect that the lessee who received the fixed date is the lessee.

On February 25, 2019, the auction court prepared a distribution schedule (hereinafter “instant distribution schedule”) that distributes KRW 21,960,026 of the amount to be distributed to the Defendant, who is the top priority lessee, among KRW 43,920,052 on the date of distribution implemented on February 25, 2019, and distributes KRW 21,714,866 of the amount to be distributed to the Plaintiff, who is the applicant creditor and the mortgagee, in the third priority order.

E. On February 28, 2019, the Plaintiff raised an objection to the distribution against the Defendant on the date of the said distribution.

[Ground of recognition] Facts without dispute, Gap evidence 2, evidence 3-1, 4, 5 (including branch numbers if there is no separate indication) and the purport of the whole pleadings

2. Judgment on the plaintiff's assertion

A. The main point of the allegation that there is no opposing power is that the defendant did not actually reside in the real estate of this case, and thus has not acquired opposing power under the Housing Lease Protection Act as a small lessee.