Who will pay back the mortgage after the divorce in Ningbo? Value-added compensation

The house was awarded to one party, but the loan was still in the name of two people-this is the most underestimated type of legacy in Ningbo marriage and family counseling. Many people think that the verdict states that "the house belongs to the woman and the remaining loan is repaid by the woman" and everything will be fine. It was not until the bank's collection text message was sent to the man's mobile phone that they realized that the court's internal distribution and the bank's external creditor's rights were originally two sets of rules that did not interfere with each other.

The distribution of 1. judgments is isolated from the effect of bank claims.

The divorce judgment or divorce agreement resolves the distribution of rights and obligations within the husband and wife, and the validity and effectiveness of both parties, while the mortgage contract is another legal relationship between the husband and wife and the bank, and the bank is not a party to the divorce case and is not bound by the judgment. This means that the bank still has the right to claim the entire debt from any of the original co-borrowers until the change in the loan entity is completed.

1. Co-borrower status is not automatically dissolved by divorce.

In practice, the most common loss scenario is: the house has been awarded to one party, the other party thinks he is out of the way, no longer pay attention to repayment. More passively, if the bank exercises the mortgage and there is still a shortfall in the liquidation, the other party is still among the debtors.

2. The only solution is to complete the subject change

in order to really cut off the responsibility, two things must be done: one is to transfer the property right of the house to the name of the acquirer, and the other is to apply to the loan bank for the borrower to change or transfer the loan, and the acquirer will undertake the loan alone. Both things require the bank to review the repayment capacity of the acquirer, not the submission of a judgment can be completed automatically. In the judgment or agreement, it is recommended that the time limit for processing and the liability for overdue breach of contract be stated simultaneously.

How to calculate the joint repayment of 2. after marriage and its value-added part.

Article 78 of the Interpretation (I) of the Supreme People's Court on the Application of the Marriage and Family Code of the the People's Republic of China Civil Code clarifies this type of handling rules: one spouse signs a real estate sales contract before marriage, pays the down payment with personal property and makes a bank loan, and repays the loan with the joint property of the husband and wife after marriage. If the real estate is registered in the name of the down payment payer, the real estate shall be handled by agreement at the time of the time of divorce, the people's court may decide that the real estate belongs to the registered party, and the loan that has not yet been returned shall be the personal debt of the party.

Two sums of money: principal and interest return and value-added sharing

compensation consists of two parts. The first part is half of the principal and interest of the joint loan repayment, which is the return of common property in nature, and the calculation is relatively direct; the second part is half of the house value-added income corresponding to the joint loan repayment, which is the main battlefield of the dispute, because it distributes the result of the rise and fall of house prices to the party who has not obtained the house according to the proportion of capital contribution.

3. compensation formula for joint repayment of personal property after marriage

the more common algorithm in judicial practice is to calculate the proportion of the joint repayment principal in the total capital contribution, and then multiply it by the total value-added of the house.

1. Step-by-step dismantling

the first step is to determine the total capital contribution of the house = down payment + returned loan principal + taxes and other purchase-related expenses (excluding interest). The second step is to determine the principal of the joint repayment, I .e. the portion of the principal to be repaid with the common property from marriage to divorce. The third step is to calculate the proportion of joint repayment = joint repayment principal ÷ total capital contribution of the house. The fourth step is to determine the total value added of the house = the market appraisal price at the time of divorce-the total price at the time of purchase. In the fifth step, the compensation claimed by the non-equity parties = (principal of joint repayment + percentage of joint repayment × total value added) × 50%. According to the judgment caliber (August 2014) disclosed in the column of "Case Statement" of Ningbo Intermediate People's Court, the judge of Ningbo Beilun Court calculated such compensation according to the "value-added index × (joint repayment of loans ÷ 2)", which is consistent with the above thinking. Ningbo has been practicing this caliber for many years.

2. Why interest is usually not included in the denominator.

Interest is the consideration of the capital occupation, does not form the value of the house increment, the interest is included in the capital contribution will artificially enlarge the proportion of joint repayment. However, the portion of the interest actually paid by the common property is still a common property expense and is usually returned separately in the item "half of the principal and interest of the joint repayment" and is not repeatedly included in the denominator of the value-added distribution. The confusion of the calculation caliber is the main reason why the difference in compensation amount in such cases is often hundreds of thousands of yuan.

How to recover 4. the other party continues to repay the loan.

After the divorce, the house is returned to one party, but it is not uncommon for the original borrower to repay the loan in time. At this point the other party is not paying for nothing and can claim a refund afterwards.

1. Basis of claim and preparation of evidence

if the judgment or agreement has made it clear that the loan shall be borne by the acquiring party and the other party shall repay the loan on behalf of the acquiring party, it may claim the return on the basis of unjust enrichment or agreement, and if the compensation is caused by the acquirer's cut-off, it may also claim the actual loss related to the penalty interest and credit repair due to the overdue payment. The core of the evidence is the repayment bank flow, the loan account correspondence and the repayment timeline.

2. Formal path for obtaining loan repayment details

when the repayment details of the other party's account cannot be inquired on its own, it may submit an application for investigation and evidence collection in the lawsuit, requesting the court to obtain or order the other party to provide the repayment bank details of a real estate loan during the marriage relationship, and the application shall state the loan account information, the repayment period and the facts to be proved. This is a frequently used procedural instrument in post-divorce property disputes.

The practical operation sequence of 5. transfer and loan transfer.

The order is wrong, often to run for several months. The more prudent path to advance is: first obtain the effective legal documents, and then communicate with the loan bank loan program, the bank issued a consent to change or agree to early settlement of the opinion, for the transfer of property rights, and finally for the registration of mortgage changes. If the qualification of the acquirer is not sufficient to undertake the loan alone, it may be considered to raise funds to settle the loan in advance and then transfer it, or to agree on a third-party guarantee scheme in the agreement.

6. case proof

in practice, if one party pays the down payment before marriage and handles the mortgage, the house is registered in his name, and the two parties jointly repay the loan after marriage, the court usually decides that the house belongs to the registrant, and the failure to repay the loan is regarded as his personal debt. At the same time, the compensation is calculated according to the idea of "joint repayment principal + joint repayment ratio × house appreciation", and the registrant pays half of the other party. Taking the down payment of 600,000 yuan, the principal of joint repayment of 400,000 yuan, the purchase price of 2 million yuan and the valuation of 3.3 million yuan at the time of divorce as examples, the proportion of joint repayment is 40%, corresponding to an increase of 480,000 yuan, and the compensation that the other party can claim is about 440,000 yuan. The final amount will be appropriately adjusted in combination with the principle of taking care of the rights and interests of children, women and non-fault parties. In similar cases, the amount of division or compensation is usually in the range of $100000 to $3 million, depending on the size of the property and the circumstances of the evidence.

In practice, after the divorce, if the house has been awarded to one party but has not been transferred in time and the other party continues to repay the mortgage, the court usually supports the claim of the compensation party for the return of the principal and interest. The calculation of compensation is based on the actual amount of compensation recorded in the bank. In similar cases, the amount of division or compensation is usually in the range of $100000 to $3 million, depending on the size of the property and the circumstances of the evidence.

7. Risk Alert

• only transfer not re-lending: property rights change is completed and the borrower has not changed, the original borrower still assumes full repayment responsibility to the bank, credit risk continues to exist.
• The valuation benchmark date is wrong: the value-added calculation should be based on the market price at the time of divorce (usually at the end of the first instance debate), and the price will deviate significantly at the time of purchase or prosecution.
• The interest is included in the denominator of capital contribution: artificially raising the proportion of joint repayment, once pointed out by the other party, the whole case calculation needs to be pushed back and redone, lengthening the trial cycle.
• Lack of repayment vouchers: cash repayment, other people's repayment, frequent card exchange repayment without retaining running water, joint repayment of the principal is difficult to identify. According to the Yinzhou Court's White Paper on the Trial of Marriage and Family Cases (2019-2021), there are many defects in electronic evidence and it is difficult to accept credit, and written documents should be retained for cash repayment or repayment on behalf of others.
• The agreement does not include a deadline for handling: the completion time and liability for breach of contract for transfer and transfer of ownership have not been agreed upon, and subsequent lawsuits can only be filed separately, thus doubling the cost of safeguarding rights.

8. FAQ

the divorce judgment states that the mortgage is repaid by the other party, can the bank still find me?

You can. The bank is not a party to the divorce case and is not bound by the judgment. The Bank shall have the right to claim all debts from either of the original co-borrowers until the completion of the change of borrower or the settlement of the loan.

Pre-marital real estate after marriage joint repayment, non-property rights can share how much?

The compensation that can be claimed is generally half of the "co-repayment principal plus co-repayment ratio x total housing appreciation. Co-repayment ratio = Co-repayment principal ÷ total capital contribution of the house, which includes down payment, repaid principal and purchase tax, excluding interest. The specific amount will also be adjusted in the light of the principle of taking care of the rights of the child, the woman and the no-fault party.

At what point in time is the housing appreciation calculated?

Usually based on the market value at the time of divorce, the litigation generally corresponds to the assessed price at the end of the first instance court debate or the market price agreed by both parties. If there is a big difference between the two parties on the price, they can apply to the real estate appraisal agency for appraisal. The appraisal fee is generally paid in advance by the applicant and finally shared according to the responsibility.

What if I can't find the repayment details under the other party's name?

An application for investigation and evidence collection may be submitted in the lawsuit, requesting the court to obtain or order the other party to provide the repayment bank details of the property during the marriage. The application must contain information on the loan account, the period of repayment and the facts to be proved, which is a common way of obtaining evidence in property disputes after divorce.

Practical Experience of 9. Lawyers

many people think that the divorce document states "who owns the house and who pays the loan", and the responsibility of the bank is cut off. The mortgage contract is another relationship between the husband and wife and the bank, the bank is not a party to the divorce case, in the loan subject has not changed, may still claim all the arrears to either party of the original co-borrower. Therefore, don't think that you can get away after you get the judgment. The party who gets the house can delay it. Once the supply is cut off, the credit information of both parties will be affected. The only way to cut off liability is to complete the transfer of title and apply for the borrower to change or refinance.

Compensation for joint repayment and value-added is another area that is easy to lose. Loans repaid with joint income after marriage, as well as the corresponding value-added of this part of the house, are within the scope of claims. When calculating, make clear each repayment, repayment account, time point and present value of the house, and use the proportion of joint repayment to the total house price to correspond to the value added, which is more convincing than talking about "how much to share" in general. If one party makes a down payment before marriage and repays the loan jointly after marriage, the down payment and premarital repayment should be the party, and the post-marital part and the corresponding value-added are the core of the dispute.

Negotiation and implementation should be in order: the loan and transfer should be processed first, and then the payment of compensation should be discussed. The party who obtains the house should write down the loan on schedule, cooperate with the transfer of ownership and cooperate with the loan as a clear obligation, and agree on the consequences of overdue. The party who withdraws should keep an eye on "when can he remove his name from the loan" and regard it as a necessary clause of the agreement. If the other party breaks the supply or delays the transfer, it may claim liability for breach of contract and apply for preservation if necessary. The order is straightened out, so as not to nominally divide the house and actually carry debts.