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1. The plaintiff's claim is dismissed.
2. The costs of lawsuit shall be borne by the Plaintiff.
Reasons
1. Basic facts
A. On April 24, 2013, the execution court prepared a distribution schedule that distributes KRW 31,110,377 to D, a subordinate mortgagee, to the Busan District Court C real estate auction, which was commenced upon the application of the Bank, which was the first mortgagee, as to the real estate listed in the attached list owned by the Plaintiff.
B. However, on April 16, 2013, prior to the preparation of the distribution schedule as above, the Defendant filed an application for provisional injunction against D’s claim for payment of dividends with the Busan District Court 2013Kadan3831, and received the ruling of acceptance on April 19, 2013. Accordingly, the executing court deposited KRW 31,110,37 as Busan District Court 2013Hun-Ba4102 (hereinafter “instant deposit”).
C. Meanwhile, the Defendant filed a lawsuit against D in Busan District Court Decision 2013Da37742, which brought a claim for compensation for value due to the revocation of fraudulent act, and on September 23, 2014, the lower court revoked the mortgage contract concluded on May 7, 2012 between D and the Plaintiff with respect to the instant real estate, and D was sentenced to the judgment that “D shall express its intent to transfer the claim to the Plaintiff, and shall notify the Republic of Korea of the transfer of the claim to the Plaintiff,” and the said judgment became final and conclusive on October 21, 2014.
As the above dividends were transferred to the Plaintiff by the court of execution, the court of execution prepared an additional distribution schedule on November 27, 2014 as to the above dividends.
Since then, in the Busan District Court E-distribution Procedure case (hereinafter “instant distribution procedure”), which commenced for the said additional dividends (referring to the instant deposit), the execution court opened a distribution date on February 9, 2015, and prepared a distribution schedule with the content of the dividends distributed as follows, 31,370,469 won, subtracting 10,650 won for enforcement expenses from the amount of KRW 31,381,119 (which seems to include interest) to be distributed by opening the distribution date on February 9, 2015.
Creditor (13TTT 6138) Defendant (13TT 9554) D.