Ningbo mortgage loan outstanding how to divide- Zhiheng Law Firm

It is a reality that many Ningbo couples cannot get around to divorce before their houses and mortgage loans are paid off. The conclusion first said: the loan has not been repaid does not affect the division of property, only affects the "debt who to back, how to transfer the house". Generally, the house is awarded to one party, the remaining loan shall continue to be repaid by it, and at the same time pay the other party the joint repayment of the loan after marriage and the corresponding value-added compensation. This paper combines the civil code with the Ningbo local referee caliber dismantling.

First find out: if the mortgage is not paid off, can the house be divided. Such disputes are not uncommon in Ningbo divorce cases-according to the Yinzhou Court's White Paper on the Trial of Marriage and Family Cases (2019-2021), more than 99% of the divorce cases it accepts involve the division of property, and the ownership, compensation and transfer of mortgage property are among the high-frequency disputes. The answer is clear-an outstanding mortgage does not affect the division of the couple's joint property, it only determines "who will take over the remaining debt". In practice, when dealing with such cases, we often hear two misunderstandings: one is that "the loan cannot be divided until it is repaid" and the other is that "whoever has the name of the house will bear all the debts". Neither is accurate. The value of the house is based on the present value at the time of trial, and debt and property rights can be treated separately. Legal basis: how to characterize the remaining loans and compensation. The typical mortgage house with down payment before marriage, registration under one's own name and joint repayment after marriage is subject to Article 78 of the (I) for Interpretation of Marriage and Family of the Civil Code: Divorce Agreement; If the agreement fails, the court may order the house to belong to the registered party. The outstanding loan is its personal debt. The joint repayment after marriage and the corresponding value-added part shall compensate the other party according to the principle of "taking care of the rights and interests of children, women, women and rights and interests of the right of the right of the wrong party. Value-added compensation (the premium corresponding to post-marital repayment in the price increase) is easily overlooked. According to the Ningbo Intermediate People's Court's "case statement" "Divorced, how to calculate the" account "?" (2014-08-05), the judicial practice in Ningbo adopts the calculation caliber of "value-added index × (joint repayment ÷ 2)" (the caliber of the judge of Beilun Court) for the compensation of joint repayment of loans after marriage. If you buy a house together after marriage, the whole is a common property, and the remaining loan is treated as a common debt. Practical points: how to link up with housing and loan repayment. Path one, the housing side to undertake the remaining loans and compensate the other party, is a common and safe practice, provided that the housing side has a stable income to cover the monthly payment. Path two, the bank does not agree to change the borrower, can first by both parties continue to repay according to the original contract, to be paid off and then transfer, to avoid a single card in the mortgage registration. Path three, get the homeowner to settle the loan in advance to eliminate the mortgage, and then handle the change of property rights. The litigation should simultaneously request the court to make a clear judgment on the remaining loan commitment to prevent mutual prevarication in the future. Compensation and transfer operation table: item and caliber-house ownership: the party who awarded the house (the registered party or the party with the ability to repay the loan); Remaining loans: the owner will continue to repay (for his personal debts); Joint compensation: the principal and interest of joint repayment after marriage plus the corresponding appreciation shall be calculated according to Articles 78 and 1087; Transfer premise: settle the loan and release the mortgage, or the bank agrees to change the borrower (transfer the mortgage); enforcement guarantee: The mediation or judgment states the time limit for repayment and transfer. The processing of the remaining loans should also take into account both the bank and the registration center, not just the split ratio.

1. case proof

according to the real judgment of Ningbo court, in the property dispute between Xu mou and Chen mou after divorce heard by Ningbo zhenhai court, the property under the registered names of both parties was awarded to the plaintiff, and the plaintiff paid the defendant a discount compensation of 744362.67 yuan. In the property dispute between Wang mou and Zheng mou after divorce heard by Ningbo court, after some houses were found to be common property, the house under the defendant's name belonged to the plaintiff and the plaintiff paid 328500 yuan as compensation. The main points of the two cases: the house belongs to one party and the other party receives discount compensation based on present value accounting, and the payment of compensation is linked to the change of property rights.

2. Risk Alert

the division of divorced property is influenced by many factors such as source, registration, capital contribution, loan repayment, and local referee caliber, and the results vary from person to person. Do not fabricate debts, conceal loan repayment records or transfer property, which may be less or not divided under article 1092 of the Civil Code. The transfer of the mortgage house must be subject to the bank's consent or the settlement of the loan, which cannot be enforced unilaterally. There are other special rules for special circumstances such as parents' contribution, name addition, military delivery room and demolition room. It is suggested to consult separately on specific materials.

3. FAQ

q: Can't the house be divided before the mortgage loan is repaid? A: No. Outstanding loans do not affect the division, only the remaining debt by whom to undertake. Q: Must the remaining loan be repaid by the party taking the house? A: Generally so. It is common for the buyer to undertake the remaining loan and compensate the other party; if the bank does not agree to change the borrower, it may repay the borrower first and then transfer the account. Q: What should I do if I take the house but the bank won't let me change the borrower? Answer: Both parties can continue to repay according to the original contract first, and transfer the ownership after the mortgage is released after the mortgage is paid off, or the owner of the house can settle and eliminate the mortgage in advance. Q: Does the compensation amount include house price increases? A: Include. According to article 78, compensation is based on the joint repayment of principal and interest after marriage and the corresponding increase in value, calculated on the basis of the present value at the time of trial.

Practical Experience of 4. Lawyers

it is a reality that many couples cannot get around to divorce before the house and mortgage are paid off. First, give a conclusion: the outstanding loan does not affect the division of the joint property of the husband and wife, it really determines who will take over the remaining debt and how the house will be transferred. The usual treatment is that the house belongs to the owner, and the remaining loan continues to be repaid by it, while paying the other party the portion of the joint repayment after marriage and the corresponding value-added compensation. It is necessary to look at the two things of dividing the house and taking over the loan separately, so that the train of thought is clear and will not be biased by the statement that the loan cannot be divided until it is repaid.

To implement the operation, we must first calculate the accounts accurately. Determine the present value of the house, the remaining loan balance, the total amount of joint repayment after marriage, and then measure the corresponding value-added according to the proportion of joint repayment to the cost of buying a house, and get the amount to be compensated. Transfer is another difficulty: when the loan is not settled, it is generally necessary to settle or obtain the bank's consent before changing the borrower or handling the transfer, so it is also necessary to assess who will come forward to communicate with the bank and whether the procedures can go through. Housing valuation and loan repayment records are two basic materials. The sooner you prepare, the better the plan will be discussed.

During the negotiation, an agreement was reached on three issues: who owned the house, how to compensate, and how to undertake the loan. The party who gets the house should measure his ability to repay the loan, and don't carry the unbearable monthly payment for the house; the party who gives up the house should keep an eye on the time and method of payment of the compensation, and if necessary, agree on the installment and the consequences of breach of contract. There are two other points that are easy to ignore: joint repayment and value-added part belong to the scope of compensation, do not miss it in the overall price negotiation.