[Mokpo Real Estate Counsel Favorable Judgment Case] Mokpo Real Estate Counsel Succeeds in Having a Claim for Cancellation of Mortgage Registration Granted

This is the case of a client who requested a consultation with the counsel at the Mokpo office.

The client decided to file a petition for cancellation of mortgage registration on real estate against her elder brother.

The reason was that, after the death of the client and the defendant's father, the client had tried to proceed with a consensual inheritance arrangement, but the defendant refused.

It was expected that the defendant had received considerable property from the father, including transferring a commercial building registered in the father's name into his own name.

In addition, the defendant argued that the father had entrusted his support to him and had established a mortgage of 200 million won.

However, the defendant had never supported the father; rather, the defendant had lived from his youth without any particular source of income, receiving financial support from the father.

The client wished to file a petition for cancellation of mortgage registration against such a defendant, and to obtain legal advice she requested a consultation with the real estate counsel at the Mokpo office.

■ What Is a "Mortgage"?

A mortgage refers to the right to receive preferential satisfaction of one's own claim, ahead of other creditors, from the mortgaged property that the debtor has provided as security for the debt, in the event the debt is not performed.

■ What Is a "Mortgage to Secure Maximum Amount"?

A mortgage to secure maximum amount, a type of mortgage, is security for a claim that will arise in the future.

In other words, it is a mortgage established on real estate to secure, up to a fixed maximum amount, the multiple claims arising from continuous transactions, as of a future settlement date.

■ Cancellation Registration of a Mortgage to Secure Maximum Amount

This refers to a registration made for the purpose of legally extinguishing a mortgage registration where, from before the registration or thereafter, for some reason it has come to no longer correspond to the actual relationship.

> A mortgage to secure maximum amount is extinguished for the following causes, and when the mortgage is extinguished, a cancellation registration is made.

∙ Termination of the contract due to performance of the debt (Civil Act Article 364)

∙ Extinguishment of a superficies or chonsegwon that is the object of the mortgage (Civil Act Article 288)

∙ Where the object is sold through an auction or otherwise (Civil Execution Act Article 91 (2))

∙ Merger (Civil Act Article 191 (1))

∙ Termination by agreement of the parties (Civil Act Article 543)

∙ Occurrence of an agreed ground for extinguishment (Registration of Real Estate Act Article 54)

∙ Where the mortgage to secure maximum amount is waived as to some of the real estate that is the object of a joint mortgage securing the same claim

The defendant argued that the deceased (the father), who was in poor health, had decided to entrust his support to the defendant and had therefore established a mortgage of 200 million won.

Counsel argued, however, that the defendant's claim was one-sided.

The defendant had never financially supported the deceased.

Rather, the defendant had continuously received financial support from the deceased from his youth, without any particular source of income.

Accordingly, the claim that the deceased had established the mortgage because the defendant had supported the deceased cannot be accepted.

The mortgage in this case was established without any juristic act creating the secured claim.

Accordingly, counsel argued that the mortgage was void and should be canceled.

The case above involved a client who came to Mokpo real estate counsel to seek assistance in filing for cancellation of the mortgage asserted by the defendant.

If you are facing difficulties due to a real estate matter as above, you may entrust your case to Mokpo real estate counsel at Daeryun Law Firm at any time.