In the case of expanding the claim amount, the time of the submission

In the event that the amount of claims is expanded by the method of increasing incidental claims in accordance with the statement of claims, such expansion shall be made at the latest by the auction date, which is the time when the statement of claims is submitted.

Suwon District Court 2017dan529249 Demurrer

AA

Korea

May 30, 2018

June 12, 2018

1. The plaintiff's claim is dismissed.

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

1. The parties' assertion

A. The plaintiff's assertion

1) On February 6, 2012, the Plaintiff entered into a loan transaction agreement with Nonparty LCC on the response to the German colonial City, and subsequently, concluded a mortgage transaction agreement with Suwon District Court on February 6, 2012, under the receipt of 14584 on February 6, 2012, the Suwon District Court concluded a loan transaction agreement with the Plaintiff at the maximum amount of 38,400,000, interest rate fluctuation rate, and delayed compensation rate of 21% per annum.

2) Since March 11, 2016, the Plaintiff failed to perform the obligations prescribed in the DD loan terms and conditions, such as delinquency in payment of interest from around March 11, 2016, and filed an application for the auction of real estate rent with the Suwon District Court 2017ta 3191 with respect to the said real estate provided as security by the largestCC.

3) Upon filing a request for the above auction, the Plaintiff filed a claim for the amount of interest in arrears at the rate of 42,342,038 won and interest in arrears at the rate of 13.59% from February 1, 2017 to February 9, 2017, including the principal amount of KRW 38,000,000 and interest in arrears at the rate of KRW 4,342,038 until January 31, 2017. The instant court rendered a decision to commence the auction as of February 9, 2017.

4) After that, the said real estate was sold in the auction case of the above real estate, and August 10, 2017, the date of distribution was set on the date of distribution. Accordingly, the Plaintiff prepared and submitted a bond account statement of the totaling KRW 38,00,000,000, the principal of the claim, and KRW 8,05,570,000,000,000,00 won prior to the date of distribution.

5) On August 10, 2017, the above court drafted a distribution schedule of KRW 69,700, the amount of dividends of KRW 59,006,243, which is distributed to the Plaintiff, KRW 45,04,40, and KRW 13,892,143, which is distributed to the E-tax secretary under the Defendant.

The above court did not recognize the incidental claim (interest for arrears: KRW 8,055,084) submitted by the plaintiff in the course of preparing the distribution schedule, but did not prepare the distribution schedule with the interest amount of KRW 7,044,40,00 which was arbitrarily calculated from the auction, and there was a difference in KRW 1,010,684, which was an objection of the plaintiff.

6) The Plaintiff appeared on the date of distribution and stated an objection. However, the distribution court did not receive the Plaintiff’s objection. The said distribution court calculated the amount of interest in arrears at the rate of 13.59% per annum from February 1, 2017 to the date of full payment, 7,04,400 won, including the interest in arrears at the rate of 4,342,038 won and 13.59% per annum.

7) However, while entering into the loan transaction agreement, the Plaintiff and LCC agreed to apply the fluctuation rate to the interest rate, the Plaintiff and LCC agreed to apply the surcharges rate for every three months, which is the annual interest rate of 21% per annum, to the Concentrate MOR (standard interest rate) within the maximum of 21% per annum. Therefore, the interest rate of the LCC, which is the debtor of the loan, is changed depending on the time when the interest rate of the LCC, is changed. Nevertheless, the above court calculated this fund as if the interest rate in the notice on the decision on commencing auction was determined as fixed interest rate, and made an error in preparing the dividend schedule. Accordingly, the dividend

B. Defendant’s assertion

1) The Plaintiff’s assertion is that 15.59% should be applied from June 8, 2016 to August 10, 2017, which is the dividend date, and the distribution schedule should be revised as stated in the purport of the claim, because the Plaintiff’s claim for the overdue interest rate from February 1, 2017 to the date of full payment was stated as 13.95%, but the fluctuation rate was applied by a loan agreement concluded with the leastCC.

2) Where a creditor of a request for auction has indicated, with the claim for auction, incidental claims, such as interest, etc., it is possible to extend the amount of the claim by means of increasing the incidental claims under the account statement for the claim thereafter, but the time limit to extend such amount of the claim shall be, at the latest, up to the end

3) However, the Plaintiff submitted a claim statement to increase the incidental claim on August 10, 2017, which was the date of distribution, and did not submit the said auction case’s demand for distribution. Therefore, the submission of the claim statement is invalid because it was delayed at the time, and the distribution schedule prepared by the said court is legitimate.

2. Determination

In cases where an applicant creditor has filed an application for auction with only a part of the claim amount as the claim amount, barring any other special circumstances, the claim amount of the applicant creditor shall be determined within the scope of the claim amount stated in the application for auction, and thereafter, the claim amount shall not be extended by the method of submitting the claim amount by expanding the claim amount in the account statement. However, such legal principle does not purport to prevent the applicant creditor from extending the claim amount by the method of increasing the claim amount by the method of adding the claim amount in accordance with the account statement of claims in cases where the applicant creditor has indicated the incidental claim, such as the interest on the claim for auction in the application for auction. However, each creditor, including the applicant creditor, shall submit the account statement of the claim by the auction date, and if the account statement of the claim is not submitted by the auction date, it shall be calculated and distributed by the documents and evidence in the execution record, such as the application for auction, and if the claim amount is expanded by the method of increasing the incidental claim amount by the last account statement, then the claim amount shall not be extended by 301.

However, in the auction case above, the fact that the plaintiff failed to submit a claim statement that expands his/her incidental claims until the successful bid date or the final period for demand for distribution is not a dispute between the parties.

Therefore, the plaintiff's claim that the above court shall calculate the plaintiff's claim and make a distribution schedule according to the plaintiff's application for auction submitted by the plaintiff at the beginning is without merit.

Therefore, the plaintiff's claim is dismissed.