2018Gahap100661 Demurrer against distribution

1. A;

2. B

[Defendant-Appellee] Plaintiff 1 and 2 others (Attorney Park Chang-chul, Counsel for defendant-appellee)

A person shall be appointed.

Representative Director;

Law Firm (LLC), Kim & Lee LLC, Attorneys Lee Dong-young et al., Counsel for defendant-appellant

June 28, 2018

July 26, 2018

1. The plaintiffs' primary claim and the conjunctive claim are all dismissed.

2. The costs of lawsuit are assessed against the plaintiffs.

○ Main Claim

Seoul East Eastern District Court 2013Thyeong21899 decided January 2018, the same court with respect to real estate auction cases.

10. Of the dividend table prepared, 864,00,000 won for the defendant and 00 won for the plaintiff A.

Amount of dividends of KRW 799, 700, 000, and KRW 64,300,000 for each of the amount of dividends of Plaintiff B, and KRW 64,300 for each of them.

Correction.

○ Preliminary Claim

Seoul East Eastern District Court 2013Thyeong21899 decided January 2018, the same court with respect to real estate auction cases.

10. Of the dividend table prepared, the amount of dividends to the defendant 864,00,000 won for 22,319,850 won, and the plaintiff A; and

Amount of dividends against A shall be KRW 799, 700, 000, and KRW 00,000 for the amount of dividends against Plaintiff B

41,980,150 won each correction shall be made.

1. Basic facts

A. D (former : 00 Savings Bank; hereinafter referred to as D) concluded a loan agreement with D on May 7, 2013 with E to set a rate of 10,000 won per annum, and 25% per annum (hereinafter referred to as the "first loan" in this case) with E to secure all obligations owed by D due to general loan transactions in the same day, and signed a loan agreement with D on May 7, 2013 with 10,000,000 won, 200,000,000 won per annum, 300,000,000,000 won per annum, and 25,000,000,000 won per annum, and 35,000,000,000,000 won per annum, 25,000,000,000 won per annum, 25,0000,000 won per annum, respectively.

3) On May 23, 2013, D entered into a credit transaction agreement with E to grant loans at a rate of 8.6% per annum, 25% per annum, and 25% per annum (hereinafter “third loan”). On the same day, D entered into a mortgage agreement with E as a joint collateral security agreement between E and 24/50 (hereinafter “real estate of this case”) out of 14803 E’s forest land in Seoul Special Metropolitan City, Gwangjin-gu, with a view to securing all obligations currently and future due to general loan transactions, and concluded a mortgage agreement between E and 24/50,000,000 E-owned apartment of 295 square meters in Seoul Special Metropolitan City, Gwangjin-gu, Seoul Special Metropolitan City, with a maximum debt amount of 80,000,000,300,000,000 won per annum, and completed the mortgage agreement between E and 84,000,000 won per annum (hereinafter “the debtor”).

B. Since August 15, 2013, E failed to pay interest on each of the instant loans from August 15, 2013, and D sent a notice of scheduled loss of interest to the effect that if the agreed interest is not repaid to E on September 9, 2013, it would be expected that the benefit will be lost as of September 17, 2013. 2) D could not repay the agreed interest and overdue interest by September 17, 2013.

29. On December 23, 2013, this Court rendered a motion to commence a voluntary auction with a claim amounting to KRW 2,604, 161,888 on the remaining collateral (excluding modern apartments, Gi apartments, the instant real estate, and the background of the E/5m of forest land in Gwangjin-gu in Seoul Special Metropolitan City) except for apartment units to be opened at KRW 2,604, 161, and 299, and received a decision to commence the auction from this Court on December 23, 2013.

C. The defendant's acquisition of claims and the transfer of collateral security

On March 20, 2014, the Defendant acquired all the collateral of KRW 1.777 billion in principal of the loan claim against E, KRW 190,302,470 in interest on delay, and KRW 190,30 in interest on delay. D notified E on April 3, 2014. Moreover, on April 7, 2014, the Defendant completed additional registration of the right to collateral transfer on the ground of the transfer of final claim regarding each of the instant collective security rights.

(d) The repayment of debt, etc. of E;

1) Around December 2013, E sold a beer apartment to 1.1 billion won, and repaid D KRW 772,074,581 to D. In addition, E sold one apartment on June 19, 2015, and the Hyundai apartment on July 7, 2015, and repaid a total of KRW 1.655 billion to the Defendant ( = one billion out of the proceeds from the sale of the apartment + KRW 650 million out of the proceeds from the sale of the modern apartment), and the Defendant voluntarily withdrawn the application for auction against one apartment and the modern apartment.

2) On the other hand, in Seoul Special Metropolitan City Gwangjin-gu, the E share 24/50 was admitted to Seoul Special Metropolitan City on December 16, 2014.

E. Establishment of the plaintiffs' right to collateral security

On August 19, 2013, Plaintiff A completed the registration of the establishment of a collateral of E 24/50 of the instant real estate and the land in Gwangjin-gu Seoul Special Metropolitan City as joint collateral under the Seoul Eastern District Court No. 54626, Aug. 19, 2013, with the joint collateral of KRW 799 and KRW 9.7 million of the maximum debt amount, and KRW 50,000,000 of the total debt amount, and KRW 24/50 of the E’s shares in the instant real estate on the same day and the land in Gwangjin-gu Seoul Special Metropolitan City as joint collateral of KRW 295,00,000,000,000 and KRW 54627,000,000,000,0000 and KRW 54627,000,0000 of the total debt

F. At the instant auction procedure, Plaintiff B submitted a claim statement on March 7, 2014, stating that the amount of the claim is KRW 588,3 million, and Plaintiff A submitted a claim statement on the same day, stating that the amount of claim against E is KRW 86,57 million.

2) On December 13, 2017, the Defendant submitted a claim statement stating that the remaining amount of claims against E is KRW 1,58,764,90 (= Principal KRW 1960,251,80 + overdue interest + KRW 598,513,108 + overdue interest + KRW 598,513,108). 3) On January 10, 2018, the court of execution prepared a distribution schedule among KRW 2,503,946,653, which is the sole creditor of the first-class mortgagee and the second-class mortgagee, to the Defendant, who is the sole creditor of the second-class mortgagee, and KRW 864,00,00 won, KRW 650,00 won, KRW 989,946,653 to the third-class mortgagee and KRW 653.

4) The Plaintiffs appeared on the date of distribution and raised an objection against Plaintiff B regarding KRW 580,00,000 among the dividends against the Defendant, and Plaintiff A filed the instant lawsuit on January 16, 2018.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 2, 3, 4, 6, Eul evidence Nos. 1 through 13 (including branch numbers; hereinafter the same shall apply) and the purport of the whole pleadings

2. The assertion and judgment

A. Judgment on the main claim

1) The plaintiff's assertion

At the time of each of the instant loans, the right to collateral security was created on each of the other real estates with an amount equivalent to 120% of the principal amount of each of the instant loans as the maximum debt amount. Although it was possible to fully repay 860 million won or maximum debt amount of 1.1 billion won for apartment sale funds to be manufactured, only the third loan obligations of this case have been repaid. E has been reimbursed one billion won out of the apartment sale price and 650 million won out of the modern apartment sale price, and withdrawal of auction against the apartment and the modern apartment. In full view of this, the third loan obligations of this case are limited to the third loan obligations of this case. However, around December 2013, D received reimbursement of KRW 72,074,581 from E to the Plaintiff, and thus, the third loan obligations of this case should be reduced to KRW 860,400,000,000,000 won which were distributed to the Defendant among the distribution schedule of this case.

Unless there exist special circumstances, a contract to establish a mortgage shall be interpreted in accordance with the language and text of the contract: Provided, That in the event that the contract to establish a mortgage is a contract which is uniformly printed and used by a financial institution, etc. in the form of a general transaction agreement, the scope of the secured debt in the contract shall be deemed to include all the obligations existing or future in addition to the loan obligation granted by the establishment of the mortgage, as a whole, in addition to the loan obligation in question. However, it is reasonable to interpret the scope of the secured debt in accordance with the terms and conditions of the contract printed out in light of various circumstances, such as the background leading up to the conclusion of the contract to establish the mortgage contract, loan practice, relationship between the loan obligation and the maximum debt amount of the loan, and whether the secured debt is separately secured against the general loan practices of the financial institution, and it is reasonable to interpret the parties’ intent as the purpose of the contract only as the secured debt of the loan in the form of a general transaction agreement, and it can be ruled that the comprehensive provision on the secured debt in the contract is binding merely an example that is a general transaction clause printed.

B) Determination

Based on the above legal principles, it is insufficient to view that the evidence submitted by the plaintiffs alone that D and E agreed to only the third loan claims of this case as the secured obligation of the right to collateral security, and there is no other evidence to acknowledge this otherwise.

Rather, the following circumstances revealed in addition to the purport of the entire argument as seen earlier, namely, ① the document to establish a mortgage was printed in the same text as to four types of loans (specific debt security, specific collateral security, limited collateral security, and comprehensive collateral security) different from the scope of the secured obligation. Of them, the limited collateral column stated “A” as “general loan due to transactions under the following agreement against the creditor, which is currently and future due to transactions under the limited collateral,” stating as “E: (2) the first and second loans are the same as the types of transactions under the instant contract; and (3) as the loans are all of the limited collateral loans as provided in the instant contract; (4) the Plaintiffs, at the time of the instant loan, cannot be viewed as a separate claim for a specific maximum debt amount, solely on the basis that each of the loans was established with the intent of 2,604,161,888 won; and (4) the Plaintiffs already concluded a specific maximum debt amount corresponding to 10% of the principal and each of the loans at the time of the instant loan.

5. From July 2, 2013 to May 23, 2013, the instant right to collateral security was extended to E in a short period of time. It appears that D also has a need to secure maximum collateral by treating loans to E as one of the more separate management of the claims for loans and the right to collateral security in order to recover the total amount of loans. In full view of the fact that each of the above loans is difficult to view that the instant right to collateral security was a limited collateral and that each of the obligations secured by the right to collateral security was intended to limit the liabilities secured by the right to collateral security to each of the obligations for loans while entering into a contract with E as a limited collateral, it is difficult to view that the instant right to collateral security was included in the secured obligation of the instant case.

Therefore, under the premise that the secured debt of the instant right to collateral security is limited to the third loan debt of the instant case, the Plaintiff’s primary claim is without merit.

B. Determination on the conjunctive claim

1) The plaintiff's assertion

Even if the secured debt of this case is included not only in the third and second secured debt of this case, but also in the first and second secured debt of this case, ① The amount that the defendant can be reimbursed as the secured debt of this case after the secured debt of this case was established is merely 86,400,000 won. Since D has received reimbursement of KRW 72,074,581 out of the third secured debt of this case, 91,925,419 ( = 86,400,000 won - 774,581 won) as the secured debt of this case, 950,000 won as the secured debt of this case, 299,000 won as the secured debt of this case, 965,000 won as the secured debt of this case, 1965,000 won as the secured debt of this case, 1965,000 won as the secured debt of this case.

(2) Scope of preferential rights to payment

The right to collateral security, if this exceeds the maximum debt amount with respect to the original, interest, penalty, non-performance of obligation, and the execution cost of the right to collateral security. In relation with the debtor and the person who has created the right to collateral security, the right to collateral security, only with respect to a part of the debt, and there is no reason to cancel the right to collateral security, and there is no reason to regard the repayment short of the full debt amount as satisfaction of the claim within the scope of the maximum debt amount. Thus, the effect of the right to collateral security still extends to the remaining debt until the full repayment of the debt is made. In addition, even though the creditor and the person who has created the right to collateral security, sell the jointly mortgaged object at will and obtain some satisfaction by paying the debt with the consideration, the right to collateral security cannot be seen as identical with the preferential repayment within the scope of the maximum debt amount, and thus, it cannot be deemed that the amount has been appropriated first with respect to the right to collateral security or has been repaid with the amount of the maximum debt amount within the scope of the maximum debt amount.

Therefore, even if the Defendant received part of the secured debt of the instant right to collateral security from E, which is a common collateral of the instant right to collateral security, with the purchase price of an apartment to be covered by the obligor, it shall not be preferentially appropriated for the secured debt with preferential payment right as alleged by the Plaintiffs, but shall be appropriated for the claims against E of the SB Savings Bank according to the general legal doctrine of appropriation of performance. D shall be deemed to have preferential payment right within the maximum of the maximum debt amount after appropriation of performance.

(3) Whether an application for appropriation of debt and an obligation secured has been made

Among the apartment sale price of the apartment to be secured by the SB Savings Bank and E, KRW 72,074,581 is not a dispute between the parties concerned. It is reasonable to view that D still has the right to preferential reimbursement within the scope of the maximum debt amount with respect to the first and second loans of this case, which are the remainder of the secured debt of the instant right to collateral security after satisfaction of the payment. The evidence submitted by the Plaintiffs alone is insufficient to view that the first and second loans of this case were all extinguished due to repayment, etc., and there is no other evidence to acknowledge otherwise.

B) Although there is no dispute between the parties to the payment of KRW 772,074, 581, and G to D with the apartment proceeds to be covered by E as to the assertion on the waiver of the claim, the fact that the aforementioned recognition and the evidence submitted by the plaintiffs alone are insufficient to deem that the Defendant renounced the above amount of KRW 69,605,569, and there is no other evidence to prove otherwise.

C) Sub-determination

Therefore, the plaintiffs' preliminary claims are without merit.

3. Conclusion

The plaintiffs' primary and conjunctive claims are without merit, and all of them are dismissed. It is so decided as per Disposition.

Judge Shin Jae-hun

Judge Lee Lee-young

Class of judge chief;