This article will take you approximately 7 minutes to read.

Earlier we have already answered the question "How to get a loan secured?" - talked about the procedure for obtaining secured loans, considered the types of collateral and the stages of debt collection.

This article deals with the value of the collateral:

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

What is bail?

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 lender. Usually we are talking about real estate, vehicles, electronics, jewelry, or other forms of property officially owned by the mortgagor. If the borrower flatly refuses to repay the current loan, the financial institution has the full right to use the sale of the collateral in order to recover possible losses.

Collateral requirements:

• The market value of the collateral should cover the loan payments and all costs of 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 collateral object.
• Temporary financial restrictions, including a ban on the sale and registration of a 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 meets the requirements set forth by the lender.

It should be noted that some financial institutions complicate the lending procedure by requiring additional collateral from the mortgagee. At the same time, the value of the property provided should not excessively exceed the size of the loan. Usually the market price of the collateral is 20-30% higher than the loan amount. This is enough to pay off overdue debts.

Market price of collateral

An expert assessment of the collateral assumes the calculation of the current market value, because the concept of loan security directly depends on the quality of the collateral offered by the borrower. Full collateral will meet the bank's requirements 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 collateral specified in the agreement.
2. Exceed the amount of the loan received.
3. Compensate for additional payments and interest for one year of using the loan.

Lenders usually treat the value of the collateral as the sum of all the costs of the loan. To determine the market price, it is necessary to carry out a thorough appraisal of the collateral. For this, experts are hired who are on 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 the collateral:

• A full-fledged assessment, involving the involvement of experts to study the collateral.
• Application of the purchase price taking into account the 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 the collateral from scratch. In this case, professionals will pay attention to additional factors affecting the value of the collateral. For example, costs are not taken into account at the stage of insuring collateral, therefore the estimated value does not correspond to reality. Experts should consider any costs associated with the lending process. The optimal value is considered to be the cost of collateral, which fully covers possible costs, interest payments and other costs for the planned loan.

Large banks usually take as collateral only liquid objects for which there is a constant demand. We are talking about property, the sale of which should not cause any particular difficulties. A mandatory requirement is also considered to be the correct preparation and execution of documents in accordance with the current legislation.

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

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

Assessment of the value of collateral

When involving professionals in the assessment of collateral, a financial institution usually plans to receive a complete report, which will indicate the specific parameters of the collateral and justify the data on its value. The lender needs only the conclusions of an expert. If the assessed price does not match the parameters of the transaction, the financial institution will refuse funding. A potential borrower will have to look for other collateral, or reduce financial appetites by reducing the size of the loan and the duration of lending.

Stages of collateral assessment:

1. Study of documents that categorically confirm the sole or joint ownership of the object used as security.
2. Studying the collateral, including checking its current state.
3. Calculation of the market value of the property.
4. Drawing up a report on the work performed.

Additional requirements for appraisal 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 collateral itself. When it comes to real estate, electronics or vehicles, the technical condition of the property is assessed. 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 appraisal of the collateral also includes the verification of documents.

Lenders try to put forward the most adequate requirements for collateral, therefore, appraisers in their work often start from the requests of financial institutions. The assessment 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 assessment stage, the parties proceed to conclude a contract. According to such a document, the borrower transfers movable or immovable property to another party (lender) in order to provide a guarantee for the return of the dog. The collateral process allows you to access improved lending conditions. A borrower who voluntarily guarantees the transaction can apply for long-term loans.

The contract specifies:

• The type of property pledged as collateral.
• The estimated value of the object used as collateral.
• Conditions for the use of collateral to repay debt obligations.

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

The procedure for enforced debt collection occurs only in case of deliberate violation by the client of the terms of the transaction. First, the collateral is seized and then put up for auction by the lender. The amount received, which corresponds to the estimated value of the property or exceeds this indicator, is used to pay off the debt. The rest of the proceeds from the sale of the property and the 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 when lending against collateral, it is necessary to develop and implement measures to assess the collateral, which in the future, under an unfavorable set of circumstances, may become compensation.

Also, an acute assessment question arises when revaluing fixed assets, since in Appendix 9 to the Regulation of the Central Bank of the Russian Federation dated July 16, 2012 N 385-P "On the rules of accounting in credit institutions located in the Russian Federation" (hereinafter - Regulation N 385- P) it says 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 year (hereinafter referred to as the new year)) to revalue groups of similar 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 the accumulated practical experience.

Value concepts arising from valuation

To begin with, let's understand the various concepts of value that arise during the assessment.

Current (replacement) value of objects - the amount of money that 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 is the most probable price at which the appraised property can be alienated at the valuation date in the open market in a competitive environment, when the parties to the transaction act reasonably, having all the necessary information, and the transaction price does not reflect any extraordinary circumstances (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 \u200b\u200bare identical. However, there is a difference between fair and market value: market value is not always possible to determine, while fair value, on the contrary, can be determined in all cases.

Let's consider this issue based on the approaches used in the activities of appraisers.

Approaches used in the activities of appraisers

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

When writing a methodology for assessing 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 in order.

Cost approach

It is based on cost. First, information is collected on the internal structure of the object, its structure and composition of the main elements. The object is further subdivided into elements that can be evaluated individually. At the last stage, the previously received costs 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 object of appraisal, for example, for real estate - the preserved estimates of construction work, market prices for building materials, builders' salaries, equipment costs, etc. This approach is labor-intensive, which makes it almost impossible for bank employees to apply a cost-based approach to property valuation. However, the application of the cost-based approach to property valuation is justified in the case when the comparative approach is impossible or the possibility of its application is limited. Moreover, such a collateral 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 property being valued. To begin with, the sum of all receipts from the assessed object is calculated, which is adjusted for all possible shortfalls. Then we deduct the costs associated with the subject of assessment, and we get a net income, which, in turn, is converted into present value. The information for calculating the market value using the income approach depends on the type of the appraisal object, for example, for real estate, the average market rental rate for similar objects is required. The analyzed approach is most relevant when assessing intangible assets. The income approach can be applied to the assessment 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 pledged item can be sold within a period not exceeding 180 calendar days from the moment the grounds for foreclosure arise (Chapter 6 of the Regulation of the Central Bank of the Russian Federation dated 26.03.04 N 4 "On the procedure for the formation of reserves for possible losses on loans, on loan and equivalent debt ").

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

Comparative approach

The approach is based on bringing comparable parameters of analogs to the parameters of the object of assessment. The number of required analogs depends on the object of assessment, preferably at least three objects. Conversion of object parameters can be percentage or cost. Information for calculating the market value using a comparative approach is taken from the purchase and sale market; you must take at least three transactions. This approach is the most versatile, easy to use, informative, because it makes it possible to study the current liquidity of the appraised object to a greater extent, since the value is determined based on the comparison of transactions.

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

Example 1

We will calculate the cost using a comparative approach (sales comparison method) of the most popular collateral - office space, which is the property of a part of a detached building with a total area of \u200b\u200b56.2 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 a selection of analogues of the object of assessment;

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

3) calculating the market value based on the adjusted values.

At the first stage, there is a search for analogues of the object of evaluation on the sites of ads, databases of real estate companies, in any other source in which ads for sale and purchase are placed. The analogue is found according to the following principles:

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

In the second step, the following adjustments are calculated:

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

At the third stage, the actual calculation of the market value of the object is made.

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

Five analogs for our object of assessment were found on the "sell-buy" classifieds site. The evaluated 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 - 2,450,000 rubles, 35 sq. m, in excellent condition, on the 4th floor of a 5-storey building;

3rd office - 4098 thousand rubles, with an area of \u200b\u200b68.3 sq. m, in poor condition, on the 6th floor of a 7-storey building;

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

5th office - 3536 thousand rubles, area 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 analogs:

Area correction. We will produce by constructing the equation of the dependence of the cost of 1 square meter on the area of \u200b\u200bthe premises, for this it is necessary to consider new offers on the market and build an equation of dependence. We correct the second, fourth and fifth analogs with a minus sign. This adjustment is very labor intensive, so it is more profitable to select more identical analogs;

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

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

Table 1

Calculation of the market value of the appraisal object

Comparison options		Assessment object	Analog object
Offer price
Premises 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)		Center. district	Center. district	Center. district	Center. district	Center. district	Center. district
Technical condition
room decoration				Excellent
Main purpose
premises
Floor level
Area correction
Correction for finishing				\u003d (2500 x 35) \u003d -87 500	\u003d (2500 x 68.3) \u003d 170750
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
Average value of the adjusted cost of 1 sq. m	rUB / sq. m
The arithmetic mean of the adjusted cost of 1 sq. m	rUB / sq. m
Adjusted RS			72,826 x 56.2 \u003d 4,261,421
Bargaining adjustment
RS of the property

Thus, the market value of the property according to the comparative approach is 4,048,000 rubles. with VAT, excluding VAT - 3,431,000 rubles.

The market value is needed not only to determine the value of an object for accepting a pledge for accounting, but also serves to reduce reserves for possible loan losses, calculated in accordance with Chapter 6 of the Regulation of the Central Bank of the Russian Federation of 03.26.04 N 254-P "On the procedure for forming credit institutions reserves for possible losses on loans, on loan and equivalent debt ".

And for the off-balance sheet registration 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 the collateral value and make it more technologically advanced, banks calculate the normative collateral discounts, which take into account all adjustments for a specific type of collateral, its liquidity and loan term.

The most important adjustment is the liquidity of the collateral. If the collateral can be quickly sold on the market without reducing the price, then the bank is likely to provide a loan, the volume of which is a significant percentage of the value of the collateral. On the other hand, if the collateral is a special mechanism designed specifically for a given company and does not have a secondary market, then the lender may refuse to provide a loan at all. Errors in determining the level of liquidity are quite critical for a bank.

Liquidity depends primarily on the availability and value of demand for property. When determining liquidity, many banks rely on the time required to sell the mortgaged property in an open and competitive market at market value. Since there is no publicly available information on the exact timing of the sale of various objects, the key way to determine the liquidity of a 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 consolidate an express assessment of collateral liquidity (determination of liquidity by assigning points for the main characteristics of the collateral that affect liquidity) in the methodology for working with collateral.

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

• functional purpose of the premises (office, retail, warehouse, etc.);
• total area of \u200b\u200bthe room;
• useful area in accordance with the functional purpose;
• location (is it profitable in accordance with the functional purpose);
• year of construction;
• the presence of repair (how long ago it was made);
• analyst of the real estate market (dynamics of real estate value over five years);
• the state of legal relations.

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

The term of the pledge is also of great importance. Collateral will be more valuable to the lender if the term of the collateral is close to the term of the loan, and vice versa - when it is more long-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 the collateral. The more fluctuations in its market value or the less confident the lender is in assessing its value, the less attractive the collateral is from the lender's point of view. Thus, liquidity, urgency and risk determine the attractiveness of various types of collateral for the lender, therefore, the amount of interest on the loan and the amount of the loan itself.

Example 2

Let us consider the influence of the discount coefficient on the collateral value using 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 coefficient, the amount of the same collateral in different banks differs by 2-3 times.

Due to the fact that there is systemic uncertainty in assessing the value of collateral, each bank uses its own calculation methodology or its standard values \u200b\u200bof the collateral ratio. Sometimes, in order to get more profit, the bank increases the collateral value to reduce provisions for possible loan losses by reducing the collateral discount.

Note that a bank that uses a flexible client-oriented approach to assessing and discounting the market value of collateral gains a competitive advantage. As an example, we can cite the variation of the collateral discount depending on the result of the scoring system based on the indicators of the size of the company, its financial independence, liquidity and profitability.

Some banks currently lack a methodology for assessing the market value of collateral. This material is intended to help them write such a technique.

Assessment of collateral and the determination of the market value of the collateral object allows 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. When receiving a loan, independent collateral assessment creates a solid and fair legal basis for further interaction between the lender and the borrower, and now, as a rule, banks do not issue loan agreements without a preliminary appraisal examination of the pledged property.

Pledge as a way to secure the fulfillment of obligations

The most effective way to secure the fulfillment of obligations is a pledge, since the satisfaction of the creditor's claims 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 debtor's obligations 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 the pledge, the creditor under the obligation secured by the pledge (the pledgee) has the right, in the event of the debtor's failure to fulfill this obligation, to receive satisfaction from the value of the pledged property, mainly to other creditors of the person who owns this property (the pledger), with the exceptions established by law. The rule of priority in foreclosure also confirms the superiority of a pledge over other methods of securing obligations.

In order for the 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 pledger of a thing can be its owner or a person who has the right to manage it, and the pledgor of the right - the person who owns the pledged right. Accordingly, the potential mortgagor must provide the creditor with documentary evidence of his rights to the property offered as mortgage. Such documents may 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 (act of acceptance and transfer, invoice, bill of lading, other document of title, depending on the terms of the contract), or transfer (occurrence) of rights; for property (rights) subject to state registration - the corresponding registration certificate.

In practice, a situation often arises when the mortgagor cannot provide the contract, which is the basis for the acquisition of property, due to its loss over the years. In this case, one should be guided by Art. 234 of the Civil Code of the Russian Federation on acquisitive prescription. According to this article, a person - a citizen or a legal entity - who is not the owner of the property, but in good faith, openly and continuously owns both his own immovable property for fifteen years or other property for five years, acquires ownership of 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 relation to 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.

In clause 17 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated February 25, 1998 N 8, it is indicated that the acquisition limitation period begins no earlier than the expiration of the limitation period for the vendication claim of the owner or other title owner.

The limitation period applied to these requirements is three years (Art. 196 of the Civil Code of the Russian Federation) and in accordance with clause 1 of Art. 200 of the Civil Code of the Russian Federation begins to flow from the day when the person, whose right has been violated, learned or should have learned about the violation of his right. Based on the norms of paragraph 1 of Art. 200 of the Civil Code of the Russian Federation, it is not possible to definitely establish the moment when the limitation period begins, this issue is evaluative and must be resolved in each case, taking into account specific circumstances. Moreover, as a rule, these circumstances are known only to a potential plaintiff, and a 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) learned about the violation of his rights. Consequently, by studying the documents confirming the ownership of the property, it is impossible to definitely establish the moment when the ownership of the person arises due to the acquisitive prescription. At the same time, taking into account the foregoing, for the purpose of confirming the ownership of a person to movable property, one should proceed from the fact 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 accounting documents) for at least eight years.

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

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, which cannot be foreclosed, is contained in Art. 446 of the Civil Procedure Code of the Russian Federation. Article 51 of the Fundamentals of the Legislation of the Russian Federation on Culture (approved by the Supreme Soviet of the Russian Federation on 09.10.1992 N 3612-1) provides that cultural values \u200b\u200bstored 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 in state or municipal ownership;

Parts of a land plot, the area of \u200b\u200bwhich is less than the minimum size established by the regulatory acts of the constituent entities of the Russian Federation and the regulatory acts of local government bodies for lands for various purposes and permitted use.

The list of property, the pledge of which is limited, is approved by the 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 only belong to certain participants in the turnover, or its presence in turnover is allowed with special permission. So, the pledge of the specified property itself is not prohibited, but the pledgee may have difficulties in levying execution on such property, since the circle of its acquirers is limited. In accordance with the Decree of the Government of the Russian Federation of 10.12.1992 N 959, supplies of the specified property (products) are carried out to consumers who have permission to use it in the Russian Federation, or on the basis of quotas.

Let's consider some types of collateral that are quite widespread in banking practice.

As security for the fulfillment of obligations to repay the loan, property rights to funds that will be credited to the pledger's account in the future are accepted as collateral. As a rule, such collateral is used if the payer of funds is a well-known and financially reliable organization. Despite the widespread use of this type of security, it should be remembered that the contract under which the specified rights are accepted as collateral 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 can 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, partial assignment of rights under the bank account agreement is not possible. Thus, the pledge of property rights in relation to 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). This position is based on arbitration practice regarding the possibility of assignment of rights of claims during the period of validity 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 N 1435/97).

Pledgers-owners of the exclusive right to a trademark offer banks as security for the fulfillment of their obligations to repay the loan the rights to the trademark. At the same time, the Law of the Russian Federation of 23.09.1992 N 3520-1 "On Trademarks, Service Marks and Appellations of Origin of Goods" does not directly provide for the possibility of transferring rights to a trademark as collateral. According to Art. Art. 25, 26 of the said 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 is possible 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. Consequently, it is impossible to accept these rights as collateral.

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

Article 22 of the Federal Law of 08.02.1998 N 14-FZ "On Limited Liability Companies" (hereinafter referred to as the LLC Law) gives the company participant the right to pledge his share (part of the share) in the charter capital of the company to another company participant or a third party. The pledge of a share in the authorized capital of an LLC to a third party is possible only by a decision of the general meeting of participants in the company, adopted by a majority of votes of all participants in the company, if the need for a larger number of votes of participants to make such a decision is not provided for by the charter of the LLC. A share in the authorized capital of an LLC cannot be pledged if the company's charter contains a ban on such transactions. Thus, the decision of the issue of accepting a share in the authorized capital of an LLC as a pledge should be preceded by a legal examination of the charter of an LLC for the presence of the above provisions in it.

You should also check the payment by a member of the company for his share, which is pledged, since in accordance with paragraph 3 of Art. 21 of the LLC Law, the share of a participant in a company can be alienated only in the part in which it is paid. If an incompletely paid share is pledged, 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 which property and to ensure the fulfillment of which obligation is recognized as being pledged.

The emergence of a pledge on the basis of the law provides, for example, Art. 488 of the Civil Code of the Russian Federation: goods sold on credit, from the moment they are transferred to the buyer and until the moment they are paid in full, are considered pledged by the seller to ensure that the buyer fulfills 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 by the contract. If at the time of the pledge the property was not paid by the buyer (pledger), that is, there is a pledge by force of law, the pledge of this property as security for the return 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 as a subsequent pledge, it is necessary to assess the size and terms of the claims of the previous pledgees and correlate them with the assessment of the subject of pledge, so that the subsequent pledgee has enough funds from the sale of the subject of pledge.

Subsequent pledges are allowed unless prohibited by prior pledge agreements. Violation of this requirement entails the recognition of the subsequent pledge invalid under Art. 168 of the Civil Code of the Russian Federation. To reduce the risk of loss of collateral for this reason, it is necessary to require the pledger to provide documents confirming the absence of encumbrances in the form of a pledge on the property offered as a 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 pledger 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 responsible for losses caused to the 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 pledger to include in the agreement under which the property was acquired, the conditions that until the moment of full payment the property is not pledged by the seller.

On the basis of the law, from the moment of state registration of the borrower's ownership of the corresponding residential house or apartment, a mortgage of a residential house or apartment arises, acquired or built in whole or in part with the use of credit funds of a bank or other credit institution (clause 1 of Article 77 of the Federal Law "On Mortgages (pledge of real estate) "as amended by the Federal Law of 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 one document, as well as in the case of the exchange of documents between the parties to the pledge agreement by means of postal, telegraph, teletype, telephone, electronic or any other connection that allows you to reliably establish that the document comes from a party to the contract. 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, e-mail address, etc.) and the procedure for exchanging documents (determine the terms, authorized persons, the procedure for joining by virtue of an agreement concluded using the above communication means). This agreement can be implemented in a contract drawn up in the form of one 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.

Assessment of collateral

The Civil Code does not establish any requirements for determining the assessment 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 of the joint stock company to conclude a pledge transaction, which is a major transaction or an interested party transaction for this joint stock company. ... The question arises: which of the above estimates should be included by the parties in the pledge agreement as its essential condition? The appraisal of the collateral is an appraisal determined by agreement of the parties, which may not coincide with either the market value or the carrying amount. At the same time, the price of the pledged item (transaction price) contained in the decision of the board of directors or the general meeting of the joint stock company to conclude a pledge transaction, which is a major transaction or an interested party transaction, must be included in the pledge agreement as its essential condition.

The assessment of the pledged item by the parties to the agreement must be objective and correlated with either the book value or the market value of the pledged item. In current banking practice, the appraisal of the collateral is determined by discounting the market value of the property. It seems that with a significant underestimation of the subject of pledge, one can say that the parties did not agree on the specified assessment. It should also be borne in mind that the appraisal of the pledged item must not be less than the amount of the obligation secured by the pledge, otherwise the security nature of the pledge will be absent (unless a part of the main obligation is secured by the pledge, the amount of which is equal to the appraisal of the pledged item).

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 the pledged property may be refused if the violation of the secured obligation by the borrower is extremely insignificant and the size of the pledgee's claims is therefore clearly disproportionate to the value of the pledged property. Thus, the value of the collateral must be commensurate with the amount of the secured obligation.

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The collateral value of the property is a value that characterizes the ability of this property to meet the Bank's requirements in the event of the sale of the collateral. The collateral value is equal to the amount of money that, in the Bank's opinion, is highly likely to be obtained from the sale of this property when foreclosure is levied on it, less the costs associated with foreclosure and sale of the collateral.

The collateral value allows assessing the correspondence of the real value of the pledged property to the credit obligations, both in the process of preliminary examination of the pledged property and in monitoring the pledge. The meaning of determining the collateral value: the volume of obligations, the fulfillment of which is fully secured by the collateral of the 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;
• - the interest accrued at the moment of foreclosure on the subject of the pledge;
• - forfeit calculated at the moment 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 collateral 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 presented in the form of a formula:

Thus, where: Z - the collateral value of the property; P is the amount of money for which, in the opinion of the Bank, it is highly probable that this property can be sold when foreclosure is applied to it; q - costs for the sale of this property; S - loan amount; % - interest on the loan, calculated at the time of possible foreclosure on the subject of the pledge; 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 (appraised value);
• 2) discounting the current market value of the property, as well as (if necessary) clarifying the collateral value based on an expert assessment of the forecasted value of the property as of the date of possible foreclosure on this property.

Estimation of the forecasted value (at the time of possible foreclosure on the subject of pledge) is carried out by the Specialist in pledge work, taking into account:

obvious trends in the market value of property;

fluctuations in market prices;

depreciation rates;

liquidity of property.

Discounting is the main method of setting collateral value and is a formal valuation. When discounting, the estimated current market value (assessed value) is multiplied by (1 - the collateral discount coefficient established by the authorized body of the Bank). And it is calculated by the formula:

where: N - the current market value of the property (appraised value); k - the collateral discount coefficient

Discount rates can be changed by the decision of the Main Credit Committee of the Bank, hereinafter referred to as (SCC) Main Credit Committee of the Bank (SCC) - the committee that makes decisions on granting a loan. ... Discount rates may change no more often than once every 3 (three) months. After the approval of the value of the new discounts, the Pledge Center is obliged to bring the corresponding decision to the notice of all the Specialists in pledge work within no more than 3 (three) working days.

Discount rates for property not specified in the principles of the Bank's credit policy or decisions of the Bank's SCC are set by the Pledge Center. The values \u200b\u200bof the indicated coefficients are communicated to the interested subdivisions within 3 (three) working days from the date of receipt of the corresponding written request. Estimation of the forecasted value is carried out by the Specialist in mortgage work, taking into account many parameters: obvious trends in the market value of property, liquidity of property, fluctuations in market prices, depreciation rates. Estimation of the forecasted value is necessary in conditions where there are strong grounds to believe that the collateral value determined by the discounting method is overstated. In this case, the Collateral Specialist is obliged to calculate the forecasted value, and if it turns out to be lower than the value established as a result of discounting, accept the forecasted value as the collateral value of the property.

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

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

It should be understood that the appraisal of the collateral is not identical to the appraisal of the market value in the sense of the Law “On Appraisal Activity”. Essentially, the residual value of the property is assessed, which differs from the market value.

Why the collateral is valued at residual value

What is residual value? This is the cost of the object in case it is alienated. In real life, it looks like this: if the recipient of the loan has ceased to fulfill its 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 prompt return of the borrower's debt. In this regard, he cannot wait until a buyer is found at the market price, therefore, 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 evaluating the residual value for pledge

• the collateral value of the property provided as security for the loan is determined when concluding the loan agreement. At the same time, it is predictive, since it is calculated at the time of the expiration of the loan term plus the time for the quick sale of property at auction;
• the assessment of the value of the collateral is carried out on the basis of a preliminary assessment of its market value;
• due to the possible sale of the pledged property, it is assumed that its owner will change, which may entail a change in the conditions of use;
• when calculating the mortgage value of real estate, the liquidation discount coefficient is selected 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, a specific settlement, the estimated time of sale. For buildings and structures sold at open tenders, the exposure period should be no more than two months.

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

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