RusBankrot
We know everything about bankruptcy
05/12/2025
Friday
THIS DAY IN HISTORY:
5 December 
1936 The Stalinist Constitution of the USSR was adopted.
1936 the Stalinist constitution of the USSR was adopted.
1484 Pope Innocent VII initiated the "witch hunt".
1456 An earthquake that destroyed Naples occurred - 35 thousand people died.
1456 occurred an earthquake that destroyed Naples - 35 thousand people died.
5 December
1936 The Stalinist Constitution of the USSR was adopted.
1936 the Stalinist constitution of the USSR was adopted.
1484 Pope Innocent VII initiated the "witch hunt".
1456 An earthquake that destroyed Naples occurred - 35 thousand people died.
1456 occurred an earthquake that destroyed Naples - 35 thousand people died.
PROPERTY IMMUNITY AGAINST COLLATERAL CLAIMS
The debtor's heir applied to the court for the exclusion of the only apartment from the bankruptcy estate (case no. A41-77135/22).
In granting the application, the court of first instance proceeded from the fact that the disputed apartment is the only dwelling for the debtor's heir, who has been living in it for a long time and is studying at a higher educational institution. The court concluded that the disputed apartment is subject to property (executive) immunity. The court found that the borrowed funds received by the debtor under the loan agreement were not used to purchase the disputed apartment, its major repairs or other inseparable improvement.
The appeal refused to satisfy the claims, pointing to the possibility of foreclosure on the only residential premises suitable for permanent residence, which is the subject of a mortgage. It is established that the text of the loan agreement specifies the purpose of the loan – major repairs and other inseparable improvements to the disputed apartment. The court recognized the possibility of foreclosure on the disputed apartment in order to satisfy the claims of the secured creditor. At the same time, it is indicated that the debtor's heir can apply to the creditor with a request for approval of a local restructuring plan and to extend executive immunity to funds from the sale of mortgaged property.
The cassation upheld the ruling of the first instance, noting that the creditor had not provided evidence of the actual intended use of the loan for major repairs and improvements to the disputed apartment. It was established that the loan was received by the debtor for personal use and the disputed apartment, which is the only housing for the debtor's heir, was provided as collateral. With this in mind, the termination of the right to use the apartment in the interests of the mortgagee is considered impossible.
The Court of cassation considered the conclusion of the court of first instance that the funds had not been used for purposes related to the disputed apartment to be justified. It is noted that the court should not limit itself to establishing formal conditions for the application of the norm, which leads to a significant infringement of the right to judicial protection.
Photo: Freepik
In granting the application, the court of first instance proceeded from the fact that the disputed apartment is the only dwelling for the debtor's heir, who has been living in it for a long time and is studying at a higher educational institution. The court concluded that the disputed apartment is subject to property (executive) immunity. The court found that the borrowed funds received by the debtor under the loan agreement were not used to purchase the disputed apartment, its major repairs or other inseparable improvement.
The appeal refused to satisfy the claims, pointing to the possibility of foreclosure on the only residential premises suitable for permanent residence, which is the subject of a mortgage. It is established that the text of the loan agreement specifies the purpose of the loan – major repairs and other inseparable improvements to the disputed apartment. The court recognized the possibility of foreclosure on the disputed apartment in order to satisfy the claims of the secured creditor. At the same time, it is indicated that the debtor's heir can apply to the creditor with a request for approval of a local restructuring plan and to extend executive immunity to funds from the sale of mortgaged property.
The cassation upheld the ruling of the first instance, noting that the creditor had not provided evidence of the actual intended use of the loan for major repairs and improvements to the disputed apartment. It was established that the loan was received by the debtor for personal use and the disputed apartment, which is the only housing for the debtor's heir, was provided as collateral. With this in mind, the termination of the right to use the apartment in the interests of the mortgagee is considered impossible.
The Court of cassation considered the conclusion of the court of first instance that the funds had not been used for purposes related to the disputed apartment to be justified. It is noted that the court should not limit itself to establishing formal conditions for the application of the norm, which leads to a significant infringement of the right to judicial protection.
Photo: Freepik
25.09.2025
