Scheme of paying debts with houses after auctioning houses according to law

Scheme of paying debts with houses after auctioning houses according to law

After the auction, pay off the debt with the house.

As the lawyer of the executed person, we apply for the execution of the property of the executed person. After entering the compulsory execution procedure, the scheme and practice of paying debts with houses twice ...

This article is about an execution case that our team is dealing with, omitting the information of the parties and only talking about the outline. The general situation is as follows: As the lawyer of the executed person, we apply to enforce the property of the executed person. After entering the compulsory execution procedure, auction first and then auction; The second auction failed again. These two years are catching up with the downturn in the property market, and it is understandable that normal real estate is difficult to sell, not to mention the real estate called "drug list" in the industry. However, from litigation to enforcement, we can't watch the creditor's rights fail to be recovered. So, we went to communicate with customers, hoping to accept the use of the house to pay off debts.

Our clients are state-owned enterprises, and they have their own considerations: the property of the person subjected to execution is still mortgaged and still being repaid normally, so the bank as the mortgagee has not moved for the time being; However, as the first signatory and executor, if we want to pay off debts in kind, we need to take out some money to cancel the mortgage and bear the taxes. You know, for state-owned enterprises, "how can foreign creditor's rights not be recovered, and we need to take out some money to fill the hole?" "

As a case-handling lawyer, after investigation, I learned that the person subjected to execution has no other litigation cases for the time being and has been restricted from high consumption. The other party wants to solve it as soon as possible and has a peaceful mind. There is nothing complicated about the legal relationship in this case. If the executor of the application is a private enterprise, it is very simple. You can fill in the money or arrange it yourself (the amount is not large) and sell it in the market after paying off the debt, which can recover most of the creditor's rights. It is impossible to see the creditor's rights lying there without eating. Temporarily unable to use the house to pay off debts, we went to communicate with the court. The court said that if the sale fails, the person subjected to execution is unwilling to use the house to pay off debts, and they can unseal the house if the person subjected to execution requests. Therefore, it is suggested to suspend the sale procedure first, keep the property in a state of continuous seizure, and seek other ways to solve it.

After communicating the details with the court, we intend to work hard from both ends: on the one hand, we will talk to the executed person. The mentality of the person being executed is that as long as I don't pay more, you can take the house away and lift the restrictions for me as soon as possible. On the other hand, continue to look for state-owned enterprises to do work: although the house cannot be directly used to offset the debts of a third party in the ruling (even if all parties agree, because there is suspicion of breaking the purchase restriction through judicial procedures), if there are third-party buyers or people arranged by the state-owned enterprises themselves in the market, after reaching a tripartite agreement, the court can directly unblock it on the spot and transfer it to a third party. What if the person subjected to execution reneges on his word and does not cooperate? Sealed it at the scene and went back.

Of course, this scheme still lies in the need to take out a sum of money to fill this small hole first. No matter whether the money is real trading funds or bridge funds, the mortgage needs to be released first before the on-site transfer to a third party can be completed. If a tripartite agreement can be reached, there is another advantage, which is to solve the problem of clearing the field. It is difficult for the Shenzhen court to let him go to other places to clear the scene. If an agreement can be reached, after confirming the current situation of the house, he will change the key and temporarily keep it in the office of the executive judge, and then hand it over to the new property owner after the transfer is completed. Don't suddenly have a "tenant" in the house or hold a long-term lease.

As for the court link: the sale is temporarily suspended, even if it is not solved by the above 10,000 methods, according to relevant regulations and judicial precedents, when the market situation does change significantly, the auction procedure can be restarted. Put it on hold until the wind comes. In addition, there is the issue of taxation. The law and judicial interpretation have no detailed provisions on the tax burden of the debtor/debtor, although according to jurisprudence, the tax should be borne by the debtor/debtor. But in this case and similar cases, if the person subjected to execution takes (does not) take (does not) the money, it will be taken for nothing. In the end, in order to transfer the ownership, it is actually borne by the application executor or the third-party buyer.

According to the Supreme Court's case-(2017) Supreme Law Enforcement No.324, the court's ruling on debt repayment made it clear that "the taxes and fees required for the transfer of the above-mentioned debt-paid property shall be borne by both parties according to law, and shall be implemented in accordance with the effective documents." According to Jiangsu Higher People's Court-(2016) CaseNo. 154 of Su Zhifu, "If the debt settlement judgment does not specify the tax burden, the relevant tax shall be paid by the statutory taxpayer according to law, not by the application executor."

Finally, why bother? Because the creditor's rights of state-owned enterprises always have to be recovered, the third party involved in the transaction also wants to get the property at the price of cabbage.

When executing the program, there is always a house as the property to be executed; Compared with the implementation of the equity of a small company or the person being executed has no property, there is finally some hope. But in the final analysis, the property to be auctioned must be liquid, that is to say, it must be of high quality and cheap enough, otherwise why should others go to this muddy water?