How to determine the order of credit in the mixed guarantee?

In order to ensure the realization of debt

The creditor may be on a creditor's right

Both the debtor is required to provide property security (mortgage, pledge)

The debtor also requires the debtor to provide people's guarantee (guarantee)

This guarantee method is called a mixed joint guarantee

Then in the mixed guarantee

When the debtor cannot fulfill the due debt

What order does the creditor realize claims?

Introduction to the case

In order to have a house in the urban area, Xiao Li decided to buy a house from a bank and signed the "Personal Loan Contract" with the bank. It agreed to the calculation method of the loan amount, repayment period, and interest.

In addition, Xiaoli signed the "highest mortgage contract" with the bank, mortgaged the house he purchased to the bank, and handled the mortgage registration for the bank.

At the same time, Xiao Li's parents also provided a guarantee for the loan and signed a seal at the guarantor, and the guarantee method was a joint guarantee.

After getting a loan from the bank

Xiao Li performed the repayment obligation in full on time on time

Later

After the bank has repeatedly urged it, it failed

Then the Xiao Li appealed to the court

It is required that Xiao Li immediately repaids the remaining borrowing principal and interest

Xiao Li's parents on borrowing principal and interest

Responsible for the liability for repayment

And advocate the mortgage house for Xiao Li

Enjoy the right of priority compensation

ask

How should the bank realize their claims when Xiao Li is weak to repay the principal and interest of the loan?

answer

In this case, the bank's creditor's rights are both mortgage guarantees set up by Xiao Li's houses and the joint liability guarantee of Xiao Li's parents, which is a mixed guarantee claim. According to Article 392 of the "People's Republic of China", if the guarantee of the guarantee of the guarantee is both the guarantee and the guarantee of the person, the debtor does not fulfill the due debt or the party agreed to achieve the guarantee of the property rights. If the claims shall be implemented in accordance with the agreement; if there is no agreement or the agreement is not clear, if the debtor provides the guarantee of the object, the creditors shall first realize the claims on the guarantee of the object; You can also ask the guarantor to bear the guarantee responsibility.

In this case, neither Xiao Li and his parents agreed with the bank to exercise mortgage and guarantee the "sequence" and "share" of claims. Then the bank can only exercise the mortgage right of all the houses of the debtor Xiao Li, and enjoy the priority rights for the auction and sale price. The remaining part bears the liability for liability and settlement.

Then mixed guarantee

Creditors exercise guarantee property rights and guarantee claims

What are the rules?

According to Article 392 of the "People's Republic of China", the rules of mixed guarantees in the mixed guarantee of the Certified Periods exercise the guarantee property and guarantee claims are as follows:

01

If the insurer, the guarantor and the creditor agreed that the creditors' "order" and "share" of the "sequence" and "share" of the claims and guarantee claims, according to the agreement;

02

If the parties do not agree or unknown, if the debtor provides property insurance with his own property, the creditors shall first realize the claims on the guarantee of the property. However, it should be noted that if the creditor does not exercise the guarantee property rights provided by the debtor with the property provided by the debtor, that is, the third party who requests the guarantee to provide the guarantee shall bear the guarantee liability for all creditor's rights. Part of the creditor's rights shall not bear the guarantee liability; if the creditors abandon the property guarantee provided by the debtor with their property, the third party provides the guarantee will be exempted from the guarantee liability within the scope of the creditor's priority. Except for the guarantee responsibility for all claims;

03

If the parties do not agree or agree unknown, if the debtor has not provided property insurance or the debtor's property security provided by his property, it has been realized but not enough to settle all the creditor's rights. Insurance, the property insurance provided by the third party at this time has no order in order to exercise the third party that provides the guarantee for the guarantee of the guarantee or the restrictions on the guarantee of the guarantee or the property rights. To assume the responsibility or exercise only the guarantee property rights, it can also be required to bear the guarantee responsibility and exercise the guarantee property rights.

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