Claims for the division of property in the absence of the consent of the mortgagee (creditor) to the division of property are left without satisfaction.
For example, due to the incorrect application of substantive law, the decision of the Taraz City Court of May 13, 2013 in the case of M. V. S.'s claim for the division of joint property and the distribution of debt obligations under the mortgage loan agreement was canceled. According to the circumstances of the case, M.'s claims are motivated by the fact that by the decision of the Taraz City Court of May 07, 2012, the marriage between him and S. was dissolved. During the marriage, the former spouses acquired an apartment under a mortgage agreement. The apartment is registered in the name of the defendant. The plaintiff asked the court to recognize his ownership right to 1\2 share of the specified apartment, worth 3,576,500 tenge, and to distribute the responsibility for paying the mortgage loan debt in proportion to his share. The court's decision satisfied the claim, recognized the plaintiff's ownership of 1 \ 2 share of the specified real estate and decided to distribute the responsibility for paying the debt under the mortgage agreement dated October 11, 2006, concluded between the Bank and S., between the parties in proportion to the shares awarded to them.
The court of first instance justified its conclusion on the satisfaction of the claim by the fact that the apartment, being the common property of the spouses, can be divided between the spouses at the request of one of them. The defendant's debt obligations under the bank loan agreement are recognized as the joint debts of the spouses, which, when dividing the common property, are distributed among them in proportion to the shares awarded to them.
At the same time, the court of first instance did not take into account that, in accordance with the provisions of article 18 of the Law "On Housing Relations", from the moment of state registration of the contract of sale of a dwelling acquired in whole or in part at the expense of a mortgage housing loan, the owner does not have the right to dispose of this dwelling without the consent of the lender until the mortgage housing loan is fully repaid.
According to the circumstances of the case, on September 05, 2006, the plaintiff gave the Bank written consent to pledge his wife's apartment, which was partially purchased with credit funds. This statement indicates that the plaintiff, having given his consent to the pledge of common joint property, accepted the restrictions provided for by law on the disposal of this property. The plaintiff, demanding the division of the apartment acquired during the marriage, intends to change the regime of ownership of his share of the joint property, transfer it from common joint ownership to shared ownership.
But since an encumbrance in the form of a pledge has been imposed on the apartment with the consent of the plaintiff, for the duration of this encumbrance, without the consent of the creditor (mortgagee), the owners of this property do not have the right to dispose of it, including by changing the ownership regime.
Having divided the housing acquired by credit funds between the spouses, the court of first instance decided to distribute the responsibility for paying the debt under the bank loan agreement between the parties in proportion to the shares awarded to them. At the same time, the court did not take into account that the participant in these legal relations, except for the former spouses, is the borrower, JSC "I", whose will is necessary to conclude a contract with M., since in accordance with Article 380 of the Civil Code, citizens and legal entities are free to conclude a contract.
Coercion to conclude a contract is not allowed, except in cases where the obligation to conclude a contract is provided for by the Civil Code, legislative acts or a voluntarily accepted obligation. In the case, there are no grounds provided for by legislative acts that entail the obligation of JSC "I" to conclude a contract with the plaintiff.
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