This article will take you approximately 7 minutes to read.

Previously, we have already answered the question “How to get a secured loan?” - talked about the procedure for obtaining loans with collateral, reviewed the types of collateral and the stages of debt collection.

This article talks about the value of collateral:

Enjoy reading!

Unsecured lending is a huge risk for financial institutions. In the event of late payments, it is the timely sale of collateral that can be used by the creditor to compensate for losses.

What is a pledge?

Collateral is the property provided by the borrower, which is used as a guarantee of the fulfillment of the terms of the transaction concluded with the creditor. Usually it's about real estate, vehicles, electronics, jewelry or other forms of ownership officially owned by the mortgagor. If the borrower flatly refuses to repay the existing loan, the financial institution has every right to use the sale of collateral to recover possible losses.

Collateral requirements:

• The market value of the collateral must cover the loan payments and all costs incurred by the lender.
• The term for the sale of the pledged property specified in the agreement does not exceed 150 days.
• The borrower is obliged to confirm the ownership of the object of collateral.
• Temporary financial restrictions, including a ban on the sale and registration of a deed of gift.
• Obtaining permission from the co-owner to provide joint property as collateral.
• Compulsory insurance of property provided as collateral.

Thus, a loan is considered secured if the collateral provided by the client fully complies with the requirements put forward by the lender.

It should be noted that some financial institutions complicate the lending procedure by requiring additional security from the pledgee. In this case, the value of the provided property should not exceed the amount of the loan excessively. Typically, the market price of collateral is 20-30% higher than the loan amount. This is enough to pay off overdue debts.

Market price of collateral

Expert assessment of collateral property involves the calculation of the current market value, because the concept of credit security directly depends on the quality of the collateral offered by the borrower. Full collateral will meet the requirements of the bank regarding the financial aspects of the transaction.

The market value of the collateral must:

1. Cover any costs associated with the sale by auction of the pledged property specified in the agreement.
2. Exceed the loan amount.
3. Compensate for additional payments and interest for one year of using the loan.

Lenders generally treat the value of collateral as the total cost of a loan. To determine the market price, it is necessary to carry out a thorough assessment of collateral objects. To do this, experts are hired who are part of the staff of the lending institution or provide their services as independent specialists. Appraisal firms can be hired by both the lender and the borrower.

Methods for determining the value of collateral:

• A full assessment, involving the involvement of experts to study the collateral.
• Application of the purchase price, taking into account reduction factors.
• Use of the amount specified in the previously concluded insurance contract for the collateral object.

Of course, the best option is to calculate the value of collateral from scratch. In this case, professionals will pay attention to additional factors that affect the cost of collateral. For example, at the stage of insurance of collateral property, costs are not taken into account, so the estimated value does not correspond to reality. Assessors should take into account any costs associated with the lending process. The optimal value is considered to be the value of collateral, which fully covers the possible costs, interest payments and other costs of the planned loan.

Large banks usually take as collateral only liquid objects for which there is a constant demand. It's about about property, the sale of which should not cause any special difficulties. A mandatory requirement is also considered the correct preparation and execution of documents in accordance with applicable law.

Lenders try to take into account the size interest rate and the current level of liquidity of the property. In addition, before proceeding with the loan, you should insure the objects provided as collateral. It is allowed to use as a full-fledged security for the property received on loan. For example, car loans and mortgages involve this form of transaction guarantee.

We bring to your attention 4 credit organizations where you can get a loan secured by real estate and a vehicle:

Estimation of the value of collateral

Involving professionals in the valuation of collateral, a financial institution usually plans to receive a full report, which will indicate the specific parameters of the collateral and substantiate data regarding its value. The lender needs only expert opinions. If the estimated price does not meet the parameters of the transaction, the financial institution will refuse financing. A potential borrower will have to look for other collateral, or reduce financial appetite by reducing the size of the loan and the duration of lending.

Stages of collateral assessment:

1. Examination of documents categorically confirming the sole or joint ownership of the object used as security.
2. Examining the collateral, including checking its current condition.
3. Calculation of the market value of the property.
4. Drawing up a report on the work performed.

Additional requirements for valuation activities are put forward depending on the type of collateral. The expert is obliged to carefully study the entire package of documents provided by the borrower, as well as the pledge itself. When it comes to real estate, electronics or vehicles, technical condition property. Sometimes finished products and various types of raw materials are used as collateral, so the borrower needs to additionally obtain the right to use the premises in which such objects are stored. Thus, the valuation of collateral property also includes verification of documents.

Lenders are trying to put forward the most adequate requirements for collateral, so appraisers in their work often start from the requests of financial institutions. The evaluation usually lasts from half an hour to several weeks, depending on the type of collateral. If any problems arise at the stage of performing such work, the borrower may refuse further cooperation with the lender.

Conclusion of a pledge agreement

After the evaluation stage, the parties proceed to the conclusion of the contract. According to such a document, the borrower transfers movable or immovable property to another party (creditor) in order to provide a guarantee of the return of the dog. The collateral process allows access to improved lending conditions. A borrower who voluntarily guarantees a deal can qualify for long-term loans.

The contract states:

• The type of property provided as collateral.
• Estimated value of the object used as collateral.
• Conditions for the use of collateral for the repayment of debt obligations.

The thing used to guarantee the transaction remains the property of the borrower. The lender gets access to the collateral only if the client breaches the agreement. The borrower is prohibited from selling or donating the pledged item until the end of the loan agreement.

The procedure for the enforcement of debt collection occurs only in the event of a deliberate violation by the client of the terms of the transaction. First, the collateral is withdrawn, and then put up for auction by the creditor. The amount received, which corresponds to or exceeds the estimated value of the property, is used to pay off the debt. The balance of funds received from the sale of property and repayment of the loan is returned to the borrower.

Today, credit institutions are increasingly faced with the need to assess collateral, find its market and fair value. To minimize the risks of secured lending, it is necessary to develop and implement measures to assess the collateral, which in the future, under unfavorable circumstances, may become a compensation.

Also, an acute valuation issue arises when revaluing fixed assets, since in Appendix 9 to the Regulation of the Central Bank of the Russian Federation of July 16, 2012 N 385-P "On the rules of accounting in credit institutions located in the territory Russian Federation"(hereinafter - Regulation N 385-P) states that a credit institution has the right not more than once a year (at the end of the reporting year (as of January 1 of the year following the reporting (hereinafter - the new year)) to revalue groups of homogeneous objects fixed assets at the current (replacement) cost in accordance with the legislation of the Russian Federation.

This raises questions: how does the current value differ from the market value and is it possible to independently determine the market value?

Despite the importance of this topic, the Central Bank of the Russian Federation does not give practical recommendations on this issue. Therefore, banks have to rely on accumulated practical experience.

Concepts of value arising from valuation

First, let's look at the various concepts of value that arise in valuation.

Current (replacement) cost of objects - amount Money, which must be paid by the credit institution on the date of the revaluation if it is necessary to replace any object (Regulation N 385-P).

Market value - the most probable price at which the object of appraisal can be alienated on the date of appraisal on the open market in a competitive environment, when the parties to the transaction act reasonably, having all the necessary information, and any extraordinary circumstances are not reflected in the value of the transaction price (federal standard estimates N 2).

Fair value is the price that would be received to sell an asset or transfer a liability in an orderly transaction between market participants at the measurement date (IFRS 13).

It can be concluded that the market and current values ​​are identical. However, there is a difference between fair and market value: it is not always possible to determine the market value, while the fair value, on the contrary, can be determined in all cases.

Let's consider this question on the basis of the approaches used in the activities of appraisers.

Approaches used in the activities of appraisers

There are three approaches: costly, profitable and comparative (market).

When writing a methodology for assessing the market value, the bank must find a middle ground between the required labor costs and the objectivity of the results. Let's analyze these approaches one by one.

Cost approach

It is based on cost. First, information is collected about the internal structure of the object, its structure and the composition of the main elements. Further, the object is subdivided into elements that can be evaluated separately. At the last stage, the previously obtained values ​​of the elements are summed up and the cost of the object is displayed. The information for calculating the market value using the cost approach depends on the type of appraisal object, for example, for real estate - preserved estimates of construction work, market prices for building materials, builders' salaries, equipment costs, etc. This approach is labor intensive, which makes the application cost approach to assessing the value of property is virtually impossible for bank employees. However, the use of the cost approach to assessing the value of property is justified in the case when the use of the comparative approach is impossible or the possibility of its use is limited. At the same time, such a pledge is quite rare, for example, a small sawmill complex in the taiga.

income approach

The approach is based on the expected income from the use of the subject property. To begin with, the sum of all receipts from the assessed object is calculated, which is adjusted for all possible shortfalls. After that, we subtract the costs associated with the object of assessment, and we get the net income, which, in turn, is converted into present value. Information for calculating the market value using the income approach depends on the type of appraisal object, for example, for real estate, the average market rental rate for similar objects is required. The analyzed approach is most relevant in the evaluation of intangible assets. The income approach can be applied to the valuation of collateralized property under certain conditions: this property is income-generating; this property is liquid, i.e. there are sufficient grounds to believe that the relevant subject of pledge can be sold within a period not exceeding 180 calendar days from the moment the grounds for foreclosing the pledge arise (Chapter 6 of the Regulation of the Central Bank of the Russian Federation of March 26, 2004 N 4 "On the procedure for the formation by credit institutions of reserves for possible losses on loans, on loan and equivalent debts").

If we talk about collateral, then most often the bank pledges real estate, vehicles and standard equipment, so the need for the above approaches may rarely arise.

Comparative approach

The approach is based on bringing comparable parameters of analogues to the parameters of the object of assessment. The number of required analogues depends on the object of assessment, preferably at least three objects. The reduction of object parameters can be percentage or cost. Information for calculating the market value by a comparative approach is taken from the market for sale; you need to take at least three transactions. This approach is the most universal, easy to use, informative, because it allows you to study the current liquidity of the object of assessment to a greater extent, since the value is determined on the basis of a comparison of transactions.

Applying the calculation of all three approaches to assessing collateral is most often not optimal in terms of labor costs. However, to determine the value of fixed assets, on the contrary, the use of all approaches is highly effective, since we have complete information for evaluation.

Example 1

We will calculate the cost using a comparative approach (sales comparison method) of the most popular collateral - an office space that is the property of a part of a detached building with total area 56.2 sq. m (located on the 5th floor of a 7-storey building, in good condition).

The calculation consists of three stages:

1) market analysis and selection of analogues of the object of assessment;

2) adjusting the parameters of analogues to the parameters of the object of assessment;

3) calculation of the market value according to the adjusted values.

At the first stage, there is a search for analogues of the object of assessment on the sites of announcements, databases of real estate companies, in any other source in which advertisements for sale and purchase are placed. The analogue is based on the following principles:

• objects put up for sale as close as possible to the date of assessment of the object, no more than six months from the date of the announcement;
• the object should not differ in area from the object of assessment by more than three times;
• the object should not have big differences in price per 1 sq. m - more than 50% of the minimum price.

At the second stage, the following adjustments are calculated:

• amendment to the date of sale;
• location correction;
• amendment to the technical condition of the decoration of the premises;
• adjustment for the amount of transferred rights to the property;
• adjustment for terms of sale;
• adjustment per floor location;
• area correction;
• adjustment for the purpose of the object.

At the third stage, the market value of the object is calculated.

The adjusted value is taken as the market value of one square meter of the appraisal object. Further, the market value is adjusted for a discount on sale, the so-called bargaining. The generally accepted amount of this adjustment is 5%.

Five analogues for our appraisal object were found on the "sell-buy" ad site. The appraised object is quite popular on the market, so there were no difficulties with analogues:

1st office - 4900 thousand rubles, area 69.4 sq. m, in good condition, on the 4th floor of a 6-storey building;

2nd office - 2450 thousand rubles, an area of ​​35 sq. m, in excellent condition, on the 4th floor of a 5-storey building;

3rd office - 4098 thousand rubles, area 68.3 sq. m, in poor condition, on the 6th floor of a 7-storey building;

4th office - 3296 thousand rubles, an area of ​​41.2 sq. m, in good condition, on the 5th floor of a 6-storey building;

5th office - 3536 thousand rubles, an area of ​​41.6 sq. m, in good condition, on the 2nd floor of a 6-storey building.

We make the following adjustments to the prices of analogues:

Area correction. Using the construction of an equation for the dependence of the cost of 1 square meter on the area of ​​\u200b\u200bthe premises, we will produce, for this it is necessary to consider new offers on the market and build an equation of dependence. The second, fourth and fifth analogues are corrected with a minus sign. This adjustment is very labor-intensive, therefore it is more profitable to select more identical analogues;

Correction for the technical condition of the interior decoration, which is calculated by direct analysis of the characteristics. To begin with, we are looking for a repair company, we find out the size of the average repair cost per 1 sq. m. We correct the second and fourth analogues (2500 rubles per 1 sq. m).

For convenience and speed, we will compile and fill in the table (see Table 1).

Table 1

Calculation of the market value of the appraisal object

Comparison options		Object of assessment	Analog object
Offer price
Area for sale
Offer price per unit area	rub./sq. m
Type of law
Financial conditions			Market	Market	Market	Market	Market
Offer or sale price			Offer price	Offer price	Offer price	Offer price	Offer price
Date of sale
Location
Location (city area)		Centre. area	Centre. area	Centre. area	Centre. area	Centre. area	Centre. area
Technical condition
interior decoration				Excellent
Main purpose
premises
Floor level
Area Correction
Finish adjustment				= (2500 x 35) = -87 500	= (2500 x 68.3) = 170 750
Adjusted cost				2 450 000 - 87 500 = 2 297 675	4 098 000 + 170750 = 4 336 746
Adjusted price per unit area	rub./sq. m
The average value of the adjusted cost of 1 sq. m. m	rub./sq. m
The arithmetic mean value of the adjusted cost of 1 sq. m. m	rub./sq. m
Correct. RS			72826 x 56.2 = 4261421
Bargaining Adjustment
RS of the property

Thus, the market value of the property according to comparative approach is 4,048,000 rubles. with VAT, without VAT - 3,431,000 rubles.

The market value is needed not only to determine the value of the object for the acceptance of collateral for accounting, but also serves to reduce reserves for possible losses on loans, calculated in accordance with Chapter 6 of the Regulation of the Central Bank of the Russian Federation of March 26, 2004 N 254-P "On the procedure for the formation of credit institutions reserves for possible losses on loans, on loan and equivalent debts.

And for off-balance accounting 91312 "Property accepted as collateral for placed funds, except for securities and precious metals" it is necessary to determine the collateral value.

In order to simplify the calculation of collateral value and make it more technologically advanced, banks calculate standard collateral discounts that take into account all adjustments for a particular type of collateral, its liquidity and loan term.

The most important adjustment is the liquidity of the collateral. If the collateral without depreciation can be quickly marketed, then the bank is likely to lend a significant percentage of the value of the collateral. On the other hand, if the pledge is a special mechanism designed specifically for this company and does not have a secondary market, then the lender may refuse to provide a loan altogether. Errors in determining the level of liquidity are quite critical for the bank.

Liquidity depends primarily on the availability and magnitude of demand for property. Many banks, when determining liquidity, start from the time required to sell the pledged object in an open and competitive market at market value. Since there is no information on the exact timing of the sale of various objects in the public domain, the key way to determine the liquidity of property is to consult with market participants (in the real estate market with real estate companies) who are directly involved in the sale of these objects on the market.

Ideally, a bank should incorporate an express assessment of collateral liquidity (determining liquidity through scoring for the main characteristics of the collateral that affect liquidity) in the methodology for working with collateral.

Let's highlight the main characteristics of the collateral object that affect its liquidity, using the example of commercial real estate:

• functional purpose of the premises (office, retail, warehouse, etc.);
• the total area of ​​the premises;
• usable area in accordance with the functional purpose;
• location (is it profitable in accordance with the functional purpose);
• year of construction;
• the presence of repairs (how long ago it was made);
• real estate market analytics (real estate value dynamics over five years);
• the state of the relationship.

This adjustment is very subjective, the level of liquidity is formed at the level of rationale at best.

The length of the bond is also important. Collateral will be more valuable to the lender if the term of the pledge is close to the term of the loan, and vice versa - when it is longer-term than the loan. The proceeds from its sale can serve to repay the loan, since the collateral is sold for money.

Another factor is the degree of risk associated with collateral. The greater the fluctuation in its market value, or the less certain the lender is of its value, the less attractive the collateral is from the lender's point of view. Thus, liquidity, urgency and risk determine the attractiveness various kinds collateral for the lender, therefore, the amount of interest on the loan and the amount of the loan itself.

Example 2

Let's consider the effect of the discount factor on the collateral value on the example of three randomly taken banks (see Table 2).

table 2

Comparison of the collateral value of property in banks with different discount rates

Table 2 shows that as a result of using the discount factor, the amount of the same collateral in different banks differs by 2-3 times.

Due to the fact that there is systemic uncertainty in the issue of assessing the value of collateral, each bank applies its own calculation methodology or its own standard values ​​of the collateral ratio. Sometimes, in order to make more profit, the bank increases the collateral value to reduce reserves for possible losses on loans by reducing the collateral discount.

It should be noted that a bank that uses a flexible client-oriented approach to assessing and discounting the market value of collateral gains a competitive advantage. An example is the variation of the margin discount depending on the result of the scoring system based on indicators of the company's size, its financial independence, liquidity and profitability.

In some banks, this moment there is no methodology for assessing the market value of collateral. This material is intended to help them in writing such a methodology.

Collateral valuation and determination of the market value of the collateral allows you to establish a fair ratio between the value of the pledged property and the amount of the loan, and also helps to prevent disagreements between the parties to the transaction that arise when foreclosure on the collateral and partial fulfillment of the borrower's obligations at the expense of the collateral. With the development of mortgages and other types of lending, such a service as collateral assessment. Upon receipt of a loan, an independent collateral valuation creates a solid and fair legal basis for further interaction between the lender and the borrower, and now, as a rule, banks do not draw up loan agreements without a preliminary appraisal of the pledged property.

Pledge as a way to secure the fulfillment of obligations

Most effective way Securing the fulfillment of obligations is a pledge, since the satisfaction of the requirements of the creditor at the expense of the pledge does not depend on the financial condition of either the debtor or the guarantor, which makes it possible to actually fulfill the obligations of the debtor to the creditor at the expense of the property that is the subject of the pledge.

According to Art. 334 of the Civil Code of the Russian Federation, by virtue of a pledge, the creditor under the obligation secured by the pledge (pledgee) has the right, in the event that the debtor fails to fulfill this obligation, to receive satisfaction from the value of the pledged property preferentially over other creditors of the person who owns this property (pledger), with exceptions established by law. The rule on priority in foreclosure also confirms the advantage of a pledge over other methods of securing obligations.

In order for a pledge to be a truly appropriate and effective method of security, it is necessary to pay attention to the following important points when considering a specific property as a subject of pledge.

1. In accordance with Art. 335 of the Civil Code of the Russian Federation, the pledgor of a thing may be its owner or a person who has the right of economic management over it, and the pledgor of a right can be a person who owns the pledged right. Accordingly, the potential mortgagor must provide the lender with documentary evidence of his rights to the property offered as collateral. Such documents can be: an agreement on the basis of which the property was acquired (rights were transferred), with proof of the transfer of ownership of the property in the manner prescribed by Art. Art. 223, 224 of the Civil Code of the Russian Federation (acceptance certificate, invoice, bill of lading, other document of title depending on the terms of the contract), or transfer (emergence) of rights; for property (right) subject to state registration - the relevant certificate of registration.

In practice, a situation often arises when the pledgor cannot provide an agreement that is the basis for the acquisition of property, due to its loss over the years. In this case, Art. 234 of the Civil Code of the Russian Federation on acquisitive prescription. According to this article, a person is a citizen or entity, - not being the owner of the property, but in good faith, openly and continuously owning as its own real estate for fifteen years or other property for five years, acquires the right of ownership to this property.

In accordance with paragraph 4 of Art. 234 of the Civil Code of the Russian Federation during the period of acquisitive prescription in respect of things held by a person from whose possession they could be claimed in accordance with Art. Art. 301 and 302 of the Civil Code of the Russian Federation, begins no earlier than the expiration of the limitation period for the relevant requirements.

Clause 17 of the Decree of the Plenum of the Supreme Arbitration Court of the Russian Federation dated February 25, 1998 N 8 states that the period of acquisitive prescription begins no earlier than the expiration of the limitation period on the vendication claim of the owner or other title owner.

The limitation period applicable to these claims is three years (Article 196 of the Civil Code of the Russian Federation) and in accordance with paragraph 1 of Art. 200 of the Civil Code of the Russian Federation begins to flow from the day when the person whose right was violated learned or should have known about the violation of his right. Based on the norm of paragraph 1 of Art. 200 of the Civil Code of the Russian Federation, it is not possible to determine the moment when the limitation period begins to run, this issue is an estimate and should be decided in each case, taking into account specific circumstances. Moreover, as a rule, these circumstances are known only to the potential plaintiff, and the person who considers himself the owner of the property by virtue of the rules on acquisitive prescription does not have information about when the owner (another owner) found out about the violation of his rights. Therefore, by studying the documents confirming the possession of property, it is impossible to definitely establish the moment of the emergence of the right of ownership in a person due to acquisitive prescription. At the same time, taking into account the foregoing, in order to confirm the right of ownership of a person to movable property, it should be assumed that a person claiming property in accordance with the rules on acquisitive prescription must provide evidence of ownership of the said property (as a rule, these are documents accounting) for at least eight years.

When accepting as a pledge the rights of lease or another right to someone else's thing, it should be remembered that such a pledge is not allowed without the consent of the owner or the person having the right of economic management to it, if the law or the contract prohibits the alienation of this right without the consent of these persons.

2. In accordance with Art. 336 of the Civil Code of the Russian Federation, the subject of pledge can be any property, including things and property rights (claims), with the exception of property withdrawn from circulation, claims inextricably linked with the personality of the creditor, in particular claims for alimony, for compensation for harm caused to life or health, and other rights, the assignment of which to another person is prohibited by law. The pledge of certain types of property, in particular the property of citizens, which is not subject to foreclosure, may be prohibited or limited by law. The list of types of property that cannot be levied is contained in Art. 446 of the Civil Procedure Code of the Russian Federation. Article 51 of the Basic Legislation of the Russian Federation on Culture (approved by the Supreme Council of the Russian Federation on 09.10.1992 N 3612-1) provides that cultural values ​​stored in state and municipal museums, art galleries, libraries, archives and other state organizations cannot be pledged culture. According to Art. 63 of the Federal Law "On Mortgage (Pledge of Real Estate)" mortgage is not allowed:

Land plots that are in state or municipal ownership;

Parts land plot, the area of ​​\u200b\u200bwhich is less than the minimum size established by the regulations of the constituent entities of the Russian Federation and the regulations of local governments for lands of various purposes and permitted use.

The list of property, the pledge of which is limited, was approved by Decree of the President of the Russian Federation of February 22, 1992 N 179. The List contains property, the free sale of which is prohibited. According to Art. 129 of the Civil Code of the Russian Federation, such property can belong only to certain participants in the turnover, or its presence in circulation is allowed by special permission. So, the pledge of the said property itself is not prohibited, but the pledge holder may have difficulties in foreclosing such property, since the circle of its purchasers is limited. In accordance with Decree of the Government of the Russian Federation of December 10, 1992 N 959, the said property (products) is supplied to consumers who have permission to use it in the Russian Federation, or on the basis of quotas.

Consider some types of collateral that are quite widespread in banking practice.

As security for the fulfillment of obligations to repay the loan as collateral, property rights to funds that will be credited to the mortgagor's account in the future are accepted. As a rule, such a pledge is used if the payer of the funds is a fairly well-known and financially reliable organization. Despite the widespread use of this type of security, it should be remembered that the agreement under which these rights are accepted as a pledge is invalid in accordance with Art. 168 of the Civil Code of the Russian Federation, since it contradicts Art. 336 of the Civil Code of the Russian Federation. The rights to funds may be pledged to the extent that the rights under the bank account agreement can be assigned, and during the validity period of the account agreement, a partial assignment of rights under the bank account agreement is not possible. Thus, a pledge of property rights in relation to the funds in the account can only take place in relation to those rights that arise after the termination of the bank account agreement (in relation to the balance of funds in the account). Specified position is based on arbitration practice regarding the possibility of assignment of claims during the validity period of the bank account agreement (see, for example, Resolutions of the Presidium of the Supreme Arbitration Court of the Russian Federation of 05/27/1997 N 584/97, of 04/29/1997 N 4966/96, of 04/29/1997 No. 1435/97).

Pledgors-owners of the exclusive right to trademark offer banks as security for the fulfillment of their obligations to repay the loan of the right to a trademark. At the same time, RF Law No. 3520-1 of September 23, 1992 "On Trademarks, Service Marks and Appellations of Origin of Goods" does not directly provide for the possibility of transferring the rights to a trademark as a pledge. According to Art. Art. 25, 26 of this Law, the transfer of the exclusive right to a trademark is possible only in the form of an assignment, and the transfer of the right to use a trademark - under a license agreement. The law does not provide for other forms of transfer of a trademark or the right to use it. Thus, to exercise exclusive rights to a trademark or the right to use it in accordance with Art. 350 of the Civil Code of the Russian Federation is impossible. Therefore, these rights cannot be accepted as a pledge.

Quite often, in addition to securities, the features of the pledge of which will be discussed below, the pledger's share in the authorized capital of a limited liability company is offered as a pledge.

Article 22 of the Federal Law of February 8, 1998 N 14-FZ "On Limited Liability Companies" (hereinafter referred to as the LLC Law) grants a company member the right to pledge his share (part of a share) in the company's authorized capital to another company member or a third party. Pledge of a share in the authorized capital of an LLC to a third party is possible only by decision of the general meeting of the company's participants, adopted by a majority vote of all the company's participants, if the need for a larger number of votes of the participants to make such a decision is not provided for by the charter of the LLC. A share in the charter capital of an LLC cannot be pledged if the charter of the company contains a prohibition on such transactions. Thus, the decision on the issue of accepting a share in the charter capital of an LLC as a pledge must be preceded by a legal examination of the charter of the LLC for the presence of the above provisions in it.

You should also check the payment by the participant of the company of his share, pledged as collateral, since in accordance with paragraph 3 of Art. 21 of the Law on LLC, the share of a member of the company may be alienated only in the part in which it is paid. If an incompletely paid share is pledged as a pledge, the subject of the pledge will be determined based on the actually paid share of the LLC participant.

3. In accordance with paragraph 3 of Art. 334 of the Civil Code of the Russian Federation, a pledge arises by virtue of an agreement, as well as on the basis of a law upon the occurrence of the circumstances specified in it, if the law provides for what property and to ensure the fulfillment of which obligation is recognized as being in pledge.

The emergence of a pledge on the basis of the law provides, for example, Art. 488 of the Civil Code of the Russian Federation: from the moment of its transfer to the buyer and until the moment of its full payment, the goods are considered to be pledged to the seller to ensure the fulfillment by the buyer of his obligation to pay for the goods, unless otherwise provided by the contract of sale. This rule should be guided by the legal examination of the pledge. Analyzing the contract, which is the basis for the acquisition of the property offered as collateral, it is necessary to pay attention to the payment procedure provided for in the contract. If at the time of pledging the property was not paid by the buyer (pledger), that is, there is a pledge by virtue of law, the pledge of this property as security for the repayment of the loan will be a subsequent pledge. According to Art. 342 of the Civil Code of the Russian Federation, if the pledged property becomes the subject of another pledge to secure other claims (subsequent pledge), the claims of the subsequent pledgee are satisfied from the value of this property after the claims of the previous pledgees. Thus, when accepting property for a subsequent pledge, it is necessary to assess the amount and terms of the claims of previous pledgees and correlate them with the assessment of the pledged item, so that the subsequent pledgee has enough money from the sale of the pledged item.

A subsequent pledge is allowed if it is not prohibited by previous pledge agreements. Violation of this requirement entails the recognition of the subsequent pledge as invalid under Art. 168 of the Civil Code of the Russian Federation. To reduce the risk of loss of security for this reason, it is necessary to require the pledgor to provide documents confirming the absence of an encumbrance in the form of a pledge on the property offered as pledge (an extract from the pledge record book, an extract from the Unified State Register of Rights to Real Estate). In accordance with paragraph 3 of Art. 342 the pledgor is obliged to inform each subsequent pledgee of information about all existing pledges of this property, provided for in paragraph 1 of Art. 339 of the Civil Code of the Russian Federation, and is liable for losses caused to pledgees by failure to fulfill this obligation.

According to paragraph 5 of Art. 488 of the Civil Code of the Russian Federation, it is possible to require the pledgor to include in the contract under which the property was acquired, the condition that until the moment of full payment, the property is not pledged to the seller.

On the basis of the law, from the moment of state registration of the borrower's right of ownership to the relevant residential building or apartment, a mortgage arises for a residential building or apartment purchased or built in whole or in part using credit funds from a bank or other credit institution(Clause 1, Article 77 of the Federal Law "On Mortgage (Pledge of Real Estate)" as amended, entered into force on January 11, 2005 federal law dated December 30, 2004 N 216-FZ).

4. Article 339 of the Civil Code of the Russian Federation establishes the requirement to conclude a pledge agreement in writing, which can be observed in a written agreement drawn up in the form of a single document, as well as in the case of an exchange of documents between the parties to the pledge agreement by means of postal, telegraph, teletype, telephone, electronic or other communication, which makes it possible to reliably establish that the document comes from the party under the agreement . In order for the parties to have such an opportunity, they must first agree on the intended means of communication, methods of identifying the parties (postal address, fax number, address Email etc.) and the procedure for exchanging documents (determine the terms, authorized persons, the procedure for the entry into force of an agreement concluded using the means of communication listed above). This agreement can be implemented in a contract drawn up in the form of a single document. For a mortgage agreement, Art. 339 of the Civil Code of the Russian Federation also provides for mandatory registration in the manner established for the registration of transactions with the relevant property.

Collateral valuation

The Civil Code does not establish any requirements for determining the valuation of the subject of pledge. At the same time, the property that is the subject of pledge may have several different estimates: book value, market value, price contained in the decision of the board of directors or the general meeting joint-stock company on the conclusion of a pledge transaction, which is a major transaction or a transaction with interest for this joint-stock company. The question arises: which of these assessments should be included by the parties in the pledge agreement as its essential condition? The valuation of the subject of pledge is the valuation determined by agreement of the parties, which may not coincide with either the market or book value. At the same time, the price of the subject of pledge (transaction price), contained in the decision of the board of directors or the general meeting of the joint-stock company on the conclusion of a pledge transaction, which is a major transaction or a transaction with interest, must be included in the pledge agreement as its essential condition.

The valuation of the subject of pledge by the parties to the agreement must be objective and correlated with either the book value or the market value of the subject of pledge. In the current banking practice, the valuation of the subject of pledge is determined by discounting the market value of the property. It seems that in case of a significant underestimation of the subject of pledge, it can be said that the parties did not agree on the specified assessment. It should also be borne in mind that the valuation of the subject of pledge must not be lower than the amount of the obligation secured by the pledge, otherwise there will be no security nature of the pledge (unless the pledge secures a part of the main obligation, the amount of which is equal to the assessment of the subject of pledge).

When accepting property as a pledge, one should remember the provisions of Art. 348 of the Civil Code of the Russian Federation, which provides that foreclosure on pledged property may be refused if the breach of the secured obligation committed by the borrower is extremely insignificant and the amount of the pledgee's claims as a result is clearly disproportionate to the value of the pledged property. Thus, the value of the subject of pledge must be commensurate with the amount of the secured obligation.

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The collateral value of property is a value that characterizes the ability of this property to satisfy the requirements of the Bank in the event of the sale of the subject of collateral. The collateral value is equal to the amount of money that, in the opinion of the Bank, is highly likely to be received from the sale of this property when foreclosure is applied to it, less the costs associated with foreclosure and sale of the collateral.

The collateral value allows assessing the compliance of the real value of the pledged property with credit obligations, both in the process of preliminary examination of the collateralized property, and when monitoring the collateral. The meaning of determining the collateral value: the volume of obligations, the fulfillment of which is fully secured by a pledge of property, cannot exceed the collateral value of this property determined by the Bank. Accordingly, a loan is considered fully secured by this collateral only if the collateral value is greater than or equal to the sum of the following three values:

• - the principal amount of the loan;
• - interest accrued at the time of foreclosure on the subject of pledge;
• - penalties accrued at the time of foreclosure on the subject of pledge.

The costs associated with the sale of the subject of pledge when foreclosure is applied to it are included in the pledge value in the form of a fixed percentage, which depends on the liquidity of a particular type of property. The calculation of the collateral value can be represented as a formula:

Thus where: Z - collateral value of the property; P - the amount of money for which, in the opinion of the Bank, with a high degree of probability this property can be sold when foreclosure is applied to it; q - costs in the sale of this property; S - loan amount; % - interest on the loan, calculated at the time of possible foreclosure on the subject of collateral; j - fines (forfeit), calculated at the time of possible foreclosure on the subject of pledge.

The collateral value is determined in 2 stages:

• 1) assessment of the current market value of the property (estimated value);
• 2) discounting the current market value of the property, as well as (if necessary) clarifying the collateral value based on peer review the forecast value of the property as of the date of possible foreclosure on this property.

Estimation of the predicted value (at the time of possible foreclosure on the subject of collateral) is carried out by the Collateral Work Specialist, taking into account:

obvious trends in the market value of the property;

market price fluctuations;

depreciation rates;

liquidity of the property.

Discounting is the main way to establish the collateral value and is a formal assessment. When discounting, the assessed current market value (assessed value) is multiplied by (1 - collateral discounting factor established by the authorized body of the Bank). And it is calculated by the formula:

where: N is the current market value of the property (assessed value); k - collateral discount factor

Discount coefficients can be changed by decision of the Bank's Main Credit Committee, hereinafter referred to as (GKK) The Bank's Main Credit Committee (GKK) is a committee that makes decisions on issuing a loan. . Discount coefficients can be changed no more than once every 3 (three) months. After approving the value of the new discounts, the Pledge Center is obliged to bring the relevant decision to the attention of all Pledge Specialists within no more than 3 (three) business days.

Discount coefficients for property not specified in the principles of the Bank's credit policy or decisions of the Bank's GCC are set by the Collateral Center. The values ​​of the specified coefficients are communicated to the interested departments within 3 (three) working days from the receipt of the relevant written request. Estimation of the predicted value is made by the Pledge Specialist taking into account many parameters: obvious trends in the market value of the property, liquidity of the property, fluctuations in market prices, depreciation rates. Estimation of the forecast value is necessary in circumstances where there are good reasons to believe that the collateral value determined by the discount method is too high. In this case, the Collateral Specialist is obliged to calculate the predicted value, and if it turns out to be lower than the value established as a result of discounting, accept the predicted value as the collateral value of the property.

The collateral value of the property is required when applying for a bank loan. Valuation of property provided as collateral is carried out only by an independent appraiser.

This requirement is due to the fact that: 1) independent appraiser has no property interest in the appraisal object assessed by him, 2) has no material and liability rights in relation to this property. Of course, the bank itself, which receives property as collateral, does not have the right to evaluate it, since it has a property interest.

It should be understood that the valuation of collateral is not identical to the valuation of the market value in the sense of the Law "On Valuation Activities". In fact, the liquidation value of the object is estimated, which differs from the market value.

Why collateral is valued at salvage value

What is liquidation value? This is the value of the object in case it is alienated. In life, it looks like this: if the recipient of the loan has ceased to fulfill his obligations under the loan agreement, the collateral object is put up for sale after a certain time.

Since the bank is not a real estate company, it is interested in the speedy return of the borrower's debt. In this regard, he cannot wait until a buyer is found at the market price, so the assessment is made at a lower (liquidation) value, which allows the bank to sell the collateral object in the shortest possible time and restore its credit resources.

Features of assessing the liquidation value for collateral

• the collateral value of property provided as collateral for a loan is determined at the conclusion of a loan agreement. At the same time, it is predictive, since it is calculated at the time of the expiration of the loan period plus the time for the quick sale of property at auction;
• valuation of collateral is carried out on the basis of a preliminary assessment of its market value;
• in view of the possible sale of collateral property, a change of its owner is expected, which may entail a change in the conditions of use;
• when calculating the collateral value of real estate, the liquidation discount coefficient is chosen taking into account the liquidity of the object, which depends on the location, condition, size, market value, development of the real estate market in the region, specific locality, estimated time of sale. For buildings and structures sold at open auctions, the exposition period should not exceed two months.

The most liquid real estate objects are office buildings and premises, followed by commercial buildings, then industrial and warehouse buildings.

By the time the debtor-borrower ceases to fulfill its obligations under the loan agreement, the creditor should have a real opportunity to foreclose on the collateral. This primarily means that at this moment the pledged property must be preserved in kind at least. For this purpose, the Civil Code provides for the possibility of transferring the pledged property to the pledgee. There are other ways to ensure the safety of the pledged property.