After retirement, occasionally exposed to some loans overdue case, idle, an analysis, see yourself whether surviving martial arts, also left a memory for later.

 

Case overview:

 

In 2011 April, A company and B small loan company signed a contract of mortgage. Both sides agreed: A will be the legal representative of the individual owned residential to evaluate 3000000 yuan of value of collateral to B small loan companies, borrowing 1500000 yuan, for a period of six months.

A company in October of the same year owing on the loan, but A can not be returned, B small loan companies give the loan is extended for three months. But the borrowing enterprise legal person is not present, no signature, loan guarantee there is no sign of continue to use the housing collateral agreement. Only the A corporate finance in the period the contract covers the seal and the person chop.

A month later, B small loan companies require the C introducer {small loan company} additional collateral, but not the mortgage period has been in a month ago has expired and renew a contract without mortgagee consent to inform new guarantor.

Two months later, the loan is due. B small loan companies require C guarantees compensation. C guarantor advance of advance. B small credit company as A, and will be open for owing on the loan, the receipt to A company. But did not cancel the mortgage contract.

A few days ago, C guarantee the objection, that her repayment is generation advances, B small loan companies sued A, real estate auction will advance to recover after.

But B small loan company that payment has been repaid, C should be the guarantor to recourse to A company.

 

How this case ending, don't know. But the B small credit company credit operation, there are some serious flaws, should be after the operation to avoid.

 

A loophole: The loan should not agree to roll over

 

{Analytical} Extension is borrowing units have funds fault, signal, unable to return the loan on time. Therefore, each bank has very strict rules on the extension. After a very strict review, in recognition of the borrower is in special circumstances, does not the repayment schedule, and in the implementation of the repayment plan and confirm repayment may only agree to extend. The general procedure is:

(a) the borrower to apply for renewal, should apply in writing before the loan maturity to the lending bank, is accepted by the bank loans and the trial.

  (two) for the first trial accords with the loan conditions, the borrower loan deal with the operating condition and ability to repay the loan comprehensively implement the funding sources, servicing and repayment plan, and submitted for approval according to prescribed procedures.

  (three) for the guaranteed loan, the original guarantee to provide guarantee, and must continue to perform the promise in writing issued by the guarantee liability. For touch (Qualitative) and loan extension, shall be in accordance with the relevant provisions of the mortgage (pledge) registration and insurance procedures.

But the loan does not accord with some elements can be extended: one is the strength of the enterprise funds is weak, the steel trade industry has be threatened by growing crises; two is the legal representative of the enterprise whereabouts have been floating out, at a standstill; three is the enterprise do not have to repay the loan, but the strings by introduction, at the end of a genius by the company to the application and extension of the seal on the contract extension. Four there is no investigation and review, must rush interlude, caused the loan can not be normal return.

 

Gap two: the loan contract and the original loan contract signature mismatch

The loan operation, the borrowing enterprise legal person not arrived at the scene, just by the staff with the person chop and seal, no signature of legal person, and the original loan contract is determined by the borrowing enterprise legal person to the small loan company signed and affixed with the seal and seal.

 

{Analytical}     According to relevant regulations, bank loans in the signed loan renewal agreement before, should review the original loan contract, the guarantee contract and its implementation, the existence of bank loan interest and may endanger the safety oversight, with the borrower, loan guarantor in the extension agreement or agreed to continue to fulfill the responsibility in a written commitment to ensure relevant supplementary provisions make correction. The extension of the legal representative is not present at the scene, also did not apply, signature original loan contract extension and renewal of contract doesn't conform to the contract, whether represent the borrower real will become a point of contention.

At the same time, housing mortgages signature without consent, shall be regarded as the extension of the contract invalid.

 

Three holes: When the original loan contract loan mortgage deadline has passed

 

The loan operation, the validity of the original mortgage contract has expired, but the extension is not in accordance with the relevant provisions also apply for mortgage registration.

 

{Analytical}   Extension can be explained by the consent of the creditor, deferred repayment behavior, can be interpreted as the parties to the contract agreement with the new loan to repay the old borrowing. According to the regulation, mortgage, pledge loan, should by the guarantor, collateral, the pledgor issued with written proof. Mortgage registration deadline has passed, should re apply for mortgage registration. To some extent, the loan collateral is missing, is not a mortgage. At present there is no cancellation of the mortgage loan contract can only be the first effective.

 

{Basis.    Loan program is: (a) the borrower to apply for renewal, should apply in writing before the loan maturity to the lending bank, is accepted by the bank loans and the trial. (two) for the first trial accords with the loan conditions, the borrower loan deal with the operating condition and ability to repay the loan comprehensively implement the funding sources, servicing and repayment plan, and submitted for approval according to prescribed procedures. (three) for the guaranteed loan, the original guarantee to provide guarantee, and must continue to perform the promise in writing issued by the guarantee liability. For touch (Qualitative) and loan extension, shall be in accordance with the relevant provisions of the mortgage (pledge) registration and insurance procedures.

According to the Supreme People's court "on the application of" some problems of PRC security law "interpretation" prescribed in article thirtieth:"If the creditor and the debtor makes a change to the main contract date, without the written consent of the guarantor, guarantee period as agreed in the contract or legal provisions.". The provisions of article sixty-first:"The content and the mortgage contract of mortgage registration records of the contents of the agreement is inconsistent with the registration records, the content of the offer." This can be interpreted as the extension of the mortgage contract is invalid.

 

Four holes: Been extended defects after one month by additional security requirements

 

In the period after a month, the company asked the C introducer additional collateral.

 

{Analytical}  In general, agree that the extension is according to the bank borrowers to apply for, the first trial accords with the loan conditions, the borrower loan deal with the operating condition and ability to repay the loan comprehensively implement the funding sources, servicing and repayment plan, and submitted for approval according to prescribed procedures.The need for increased security requirements, should other lawful, effective guarantee in agreed by the applicant before further loans for approval. But if the extension of contracts already in force, the new loan extension also issued a month later, then add the guarantor has passed on the risk too, also a little unreasonable. In addition, the additional guarantor not by the borrower to provide, but the small loan companies to request for additional references, not in conformity with the relevant provisions. The combination of the guarantor of loans, loan demand, it can have a variety of excuses in law.

 

{Basis. According to the Supreme People's court "on the application of the" PRC security law "interpretation of several issues" the provisions of article fortieth:"The principal debtor through the use of fraud, coercion, the guarantor provides guarantee in violation of the true meaning of the circumstances, the creditor knows or should know the truth of the fraud, coercion, in accordance with the provisions of the guaranty law thirtieth."

 

 

 

Five holes:    Ensure all the facts did not disclose this deferred loans

 

The effective period of mortgage has been, if the mortgagor fails to agree with the renewal of the facts and the loan contract with the renewal of contract signature of inconsistent facts, not the guarantor to tell.

 

{AnalyticalIn additional collateral is not the most reasonable circumstances, has to ensure that the two people do not know a negligence, will become a larger issue.

 

{Basis.   According to the Supreme People's court "on the application of" some problems of PRC security law "interpretation" prescribed in article thirty-ninth:"The main parties to the contract agreement with the new loan to repay the old borrowing, except when he knows or should know, the guarantor shall not bear civil liability."

 

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Six holes: In the collateral could dispose of the case, can not be directly to the guarantor for loans

 

The maturity of the loan to the borrower, no collection and disposal of collateral, but directly request the guarantor to compensatory borrowing

 

{Analytical}   collection of overdue loans, bank credit assets preservation, to safeguard their own rights and interests often use a kind of means and effective. Therefore, in the loan is overdue, small loan company shall apply to the borrower overdue, the guarantor also inform. The borrower does not repay the loan, can require the guarantor to compensation. In the absence of a borrower in the collection, collateral could dispose of the case, directly require the guarantor to repay, accumulate the shortcut in violation of relevant laws.

 

{Basis.  According to the Supreme People's court "on the application of" some problems of PRC security law "interpretation" prescribed in article thirty-eighth:"After the expiration of the time period in the failure to exercise real right for security performance of the master contract, resulting in collateral value decreasing or damaged or destroyed, as the creditor gives up part or all of the property security. Ensure that reduce the scope of the creditor's waiver or exemption from responsibility.".

The provisions of article twenty-fourth:"The guarantee in the main creditor perform after the expiration of the real situation, provided to the creditor debtor property available for enforcement, the creditor gives up or failure to exercise the rights in the property cannot be performed, the guarantor may request the people's court in its actual value range of property available for enforcement is exempt from guarantee responsibility."

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Seven holes:  To ensure the necessary formalities and lack of people generation after the repayment

 

The C reference generation after the repayment, no sign compensatory agreement, some lack in the procedure.

 

{Analytical}   A guarantee compensation generally consists of two steps, the first step is to confirm the validity of the claim, the second step is to implement a guarantee compensation, in the implementation of the guarantee compensation principle is the LenderThe first program, first performs a borrower assets make up loan losses, on the part of the loan has not yet recovered, by the underwriter subrogation.If this is a one-time payment, should also be three party signed compensation agreement. In accordance with the provisions should be written clearly on three points: (a) the true will of people is compensatory, (two) and urge the borrower to develop repayment plans; (three) to transfer the mortgage (pledge); or that people change, companies lack the necessary evidence to ensure the reliability of human rationality, validity and compensatory compensation the.

 

{Basis.Validation is the premise to guarantee payment of claims, there are two main purposes: one is to review the effectiveness of contract, the actual verification of the performance of the contract, to lay the foundation for recovery work. The two is to avoid moral risks caused by quick payment, the bank staff to lose enthusiasm in arrears to the borrower of traversing.

To confirm the validity of a claim the main work includes: (1) confirm the contract parties are correct. 2) confirm the lender is fully perform the "loan contract" and "guarantee contract" obligations. 3) claim time exceeds the guaranteed liability period. 4) the lender is without guarantee agency license allows the transfer of debt. 5) the lender is without guarantee agency license allows the borrower to extend the debt repayment period. 6) the borrower and the lender if they collude, cheat Guarantee Agency guarantees. 7) the lender is not fulfill the supervision and loan obligations, resulting in loans to countries prohibit or restrict the production field. 8) confirmed the scope and amount of guarantees payment. 9) explicitly guaranteed the right to recover compensation enjoyed by people after, and improve the legal requirement to fully enjoy the right of recourse need.

 

Eight holes:Accounting treatment problems after the guarantor compensatory borrowing

 

C references to delimit money, finance directly as borrowers owing on the loan processing, receipt directly to the borrower.

{Analytical}  The introducer after payment, no written proof that she is compensatory borrowing, sailed into the money did not indicate the use of.

But the financial direct sum as is the borrower repayment, repayment and directly issued vouchers to actual not informed borrowers, this easy to cause disputes.

{Basis. Slightly

 

To sum up, I think: the defects existing in this case is B small credit business strange consequences, if not seriously study, according to the rules, but be opinionated, take shortcuts, this is a fatal weakness of financial practitioners, improper handling will affect the normal development of the company.