The government has amended various laws, including the Civil Code, Pledge Law and Mortgage Law, to streamline procedures for enforcing pledges and mortgages. The new rules provide improved procedures for out-of-court realisation of the secured property.Close speedread
On 30 December 2008 the President signed Federal Law No. 306-FZ amending the Civil Code, the Pledge Law, the Mortgage Law and other laws with respect to the enforcement of pledges. The Law entered into force on 11 January 2009.
The Law seeks to streamline the legal framework for enforcing pledges and mortgages (pledges of immovables).
As before, a pledge or mortgage can be enforced by a court or in an extra-judicial procedure. The new rules amend the procedure for out-of-court enforcement against the pledged property. The pledged property can now be realised, not only through a public sale, but also under a commission agreement entered into with the pledge holder. Alternatively, the parties (if they are legal entities or individual entrepreneurs) can agree that the property will be acquired by the pledge holder or sold to a third party.
A pledge holder can enforce a pledge or mortgage without resorting to the courts under an agreement with the pledgor or mortgagor. This agreement can be concluded at any time (and not, as previously, only after the debtor's default), either in the form of a separate document or incorporated into the pledge or mortgage agreement. However, such agreement can be concluded only if there is a notarised consent of the pledgor or mortgagor for such out-of-court enforcement (for a pledge, such consent is needed only if the pledgor is an individual). If the pledgor fails to comply with this agreement, the pledge holder can, based on a notary's executive endorsement, seek the assistance of a court bailiff.
Also, the procedure for the out-of-court realisation of the pledged property is now regulated in more detail, and the pledge holder must engage an independent appraiser to determine the value of pledged property in certain cases.
The Law also amends, among other things:
The Bankruptcy Law with respect to the enforcement of a pledge or mortgage if the pledgor undergoes bankruptcy procedures (in particular, to ensure that the pledge holder has priority in relation to the unsecured creditors of the pledgor, including, to a certain extent, first and second priority creditors).
The Enforcement Law to eliminate a number of its deficiencies.