THE RIGHTS OF A SECURED CREDITOR MUST BE RESPECTED WHEN EXCLUDING A SINGLE DWELLING

The courts of two instances refused to satisfy the manager's application, satisfying the debtor's claim (to exclude the apartment), based on the fact that the debtor is an active military man, has not been excluded from the register of NIS participants, there is no debt under the purchase and sale agreement, and the apartment is the only living space suitable for the debtor and his family members, with executive immunity.

At the same time, refusing to satisfy the manager's application for the debtor to retain a ½ share in another apartment, the courts, taking into account the area of the named apartment, considered that in this case the housing rights of the debtor and his family members would be violated.

The cassation sent the dispute for a new consideration, pointing out that in the dispute under consideration, the question was subject to investigation as to which of the living quarters available to the debtor and his family members is the only suitable one for them that does not have executive immunity.

It is quite obvious that the debtor, declaring the exclusion of an apartment from the bankruptcy estate, proceeded from the fact that this residential premises has the largest area of all the residential premises owned by him and his family and corresponds to the accounting rate of living space for a family of three people, repayment of credit funds spent on the purchase of this apartment, is carried out within the framework of the NIS for military personnel.

In the case under consideration, the basis for resuming repayment of obligations on a loan obtained using a targeted housing loan is the exclusion of an apartment from the bankruptcy estate. However, in this situation, in order to protect the property interests of the bank as a collateral creditor, an appropriate guarantee is needed that allows not to release the pledgor from obligations to the collateral creditor upon completion of the procedure and in case of refusal by the authorized federal body to resume repayment of loan obligations or termination of the provision of funds to the debtor upon the occurrence of other events to realize the collateral object.

With a different approach, namely, applied by the courts, taking into account the sanctions imposed on the debtor by the authorized federal body, the bank actually loses the right to satisfy the obligation secured by the pledge.

The court noted that in a new examination of the first instance, it is necessary to investigate the issue of residential premises owned by the debtor and his family members and their status (jointly acquired or individual by each of the spouses); depending on this, determine the only residential premises suitable for the debtor and his family members; if the only suitable premises the apartment will be recognized, consider approving a settlement agreement in respect of the specified apartment on terms that ensure the property interests of the bank and the housing rights of the debtor and his family.