What Is a Cooperative Mortgage?

Common mortgage is also called collective mortgage or joint mortgage. In order to guarantee the same creditor's right, special mortgage forms of mortgage rights are set on several real estate or real estate rights. Co-mortgage is not a simple combination of several mortgage rights, but is established on several real property or real property rights for the same purpose based on guaranteeing the same debt. Therefore, its rights are multiple mortgages. When a creditor is paid off for any one of the mortgages, the other mortgages are destroyed due to the purpose. The relationship between several mortgages in a joint mortgage and a secured claim is similar to joint debt.

Joint mortgage

The essential elements of the common mortgage contract are:

The type of joint mortgage can be different according to

1.Co-mortgagor's option to exercise mortgage

Co-mortgage, as mentioned earlier, is divided into a joint mortgage and joint joint mortgage. In the case of a joint mortgage, as the parties have a clear agreement on the share of the creditor's rights secured by each mortgaged property, the mortgagee must exchange all the mortgaged property in exchange for the price of each mortgaged property at This mortgaged property enjoys the priority right of compensation within the range of the creditor's rights secured by the mortgaged property. This situation is equivalent to each mortgage property guaranteeing a part of the creditor's right separately. Strictly speaking, since it is no longer associated, it is not a true joint mortgage.

The role of co-mortgage is not only to fully guarantee the realization of creditor's rights, but also to spread the danger of collateral. When the value of each subject matter is naturally damaged, lost or reduced due to other factors, it can also ensure the settlement of debts, and at the same time in the operation of the market, it is possible to collect large-scale debts of multiple small real estate debtors. 17 The co-mortgaging effect is huge and the corresponding operations are more complicated than general mortgages, so a clear regulation of the law is particularly necessary. China's current property rights legislation clearly lacks sub-regulations. Article 34, paragraph 2 of the "Guarantee Law of the People's Republic of China" states: "The mortgagor may mortgage the property listed in the preceding paragraph." Through this article, China can be considered to allow co-mortgage to exist. Paragraph 2 of Article 75 of the Interpretation of the Supreme People's Court on Several Issues concerning the Application of the "Guarantee Law of the People's Republic of China" passed in September 2000 stipulates: "If there are two or more mortgagors of the same creditor's right, If there is no agreement or unclear agreement on the share or order of the credit secured by the mortgaged property, the mortgagee may exercise the mortgage right on any or each property. "This is a clear stipulation on the realization of joint mortgage, but it is relatively On many issues, this provision is obviously too thin. The current legislation needs to be supplemented and improved to facilitate joint mortgage

A city Boda Industrial Co., Ltd. (hereinafter referred to as Boda) intends to borrow 4.5 million yuan from a trust investment bank (hereinafter referred to as investment bank) in the city. 1200 square meters (then valued at 3.5 million) was used as collateral. The investment bank believed that the mortgaged property was not enough, and asked Boda to provide other collateral, otherwise it could not borrow. Boda then requested Mitutoyo Trading Group (hereinafter referred to as Mitutoyo)

Joint mortgage

With his newly purchased piece of land as collateral, at the same time, he asked Dingmou, a self-employed person, to use a Mercedes-Benz car (valued at 1 million) as collateral. The above mortgages have entered into contracts between investment banks and various mortgagors and have been registered. In the loan contract between Boda and the investment bank, it was specifically stated that the above three properties were used as collateral. In the mortgage contract entered into between Mitutoyo and the investment bank, although Article 1 stipulates that Mitutoyo will collateralize a piece of land with an area of about 200 acres and a price of 8 million yuan in the development zone of the city, according to repeated requirements from Mitutoyo, According to Article 5 of the contract: "Party B (Mitutoyo) only uses 1 million land use rights as collateral." After the investment bank and Ding entered into a mortgage contract, the investment bank found that the car had set up a mortgage for others, but not Know the amount of creditor's rights secured by the mortgage. After the loan contract expires, Boda cannot pay off its debts. Because the investment bank obtained only 3 million yuan of Boda's real estate after the auction, it requested to auction 200 acres of land in Mitutoyo to pay off the remaining 2 million yuan of debt (the principal of 4.5 million yuan and interest of 500,000 yuan, minus 300 10,000 yuan), which was rejected by Mitutoyo, the investment bank then filed a lawsuit in the court, asking Mitutoyo to assume the mortgage liability.

The first thing that needs to be discussed is whether the mortgages in this case are three separate mortgages or only one joint mortgage was established. Judging from this case, when Boda negotiated with the investment bank for the loan, the real estate provided by Boda was worth only 3.5 million yuan at the time, and the amount of the loan was 5 million yuan in principal and interest. Boda asked Mitutoyo to use its land as collateral, and self-employed Ding to use a Mercedes-Benz coupe as a mortgage. The investment bank entered into mortgage contracts with Boda, Mitutoyo and Ding respectively. Relevant departments have registered. In terms of form, three mortgage contracts have been formed between the parties, and the parties and targets of these mortgage contracts are not the same. Therefore, some people think that these are three different mortgages, and the investment bank should request the three mortgagors separately. . Although the investment bank and the above three parties have entered into separate mortgage contracts, the mortgage in this case is a joint mortgage rather than a separate mortgage. The so-called joint mortgage, also known as joint mortgage, refers to the joint guarantee of a certain claim with several properties, and several properties establish a mortgage for the same claim. In this case, the three mortgages are guarantees for the factory. Boda's debt of 5 million yuan to the investment bank, especially in the loan contract between Boda and the investment bank, also specifically stated that the above three properties are used as collateral. These properties have been used to jointly guarantee the same claim, that is, Borda's loan to the bank, which constitutes a joint mortgage.