Zhongcheng Qingtai | Real estate perspective: know and be cautious to prevent trouble first-the owner's unfinished loan stop behavior on personal credit impact and preventive measures.
Published:
2022-08-05
In recent days, due to the delayed delivery of real estate, the owners announced that they would stop repaying the loan. Up to now, the owners of more than 100 uncompleted residential buildings across the country have issued a collective announcement announcing the compulsory suspension of loans, involving many provinces and cities in my country. Tracing back to the source, the owner chose to stop repaying the loan because he was helpless. The house was unfinished, but the mortgage had to pay the rent, but the delivery was still far away. The large-scale unfinished phenomenon is obviously closely related to the defects of the operation and management of some real estate enterprises, the housing presale in some areas and their supporting systems. And such a large-scale collective announcement of the owners of the loan is unprecedented.
The suspension of the loan will inevitably affect the personal credit, some owners also know this, but it is helpless and sad that many owners also have a "meal can not eat, but also care about credit?" The mentality, the author deeply sympathizes with this, the author will discuss the impact of the owner's suspension of credit and preventive measures from the perspective of personal credit.
1. definition of "credit reference"
According to the definition of the Regulations on the Administration of Credit Investigation Industry, the subject of credit investigation information is called the person to be investigated, which is the description object of the credit investigation information collected, sorted, processed and used by the credit investigation agency, which of course includes the natural person subject of the owner, and "upper credit investigation" refers to the personal credit information included in the personal credit information basic database established by the People's Bank of China, which is managed and operated by the central bank credit investigation center, each commercial bank or other access institution is obliged to summarize and report the collected information, and the access institution may inquire about the personal credit report from the credit reference center of the central bank based on my authorization or legal matters.
In the event of a cut-off, the bank of the owner's loan will submit to the central bank credit center the information that the owner has not repaid the loan on time, and the adverse information will be reflected in the owner's personal credit report, which is the so-called "upper credit". "Credit investigation" does not necessarily affect the normal work and life of the owner,However, it will inevitably affect the credit risk evaluation of the owners by financial institutions.On matters such as the owner's subsequent application for a loan from a financial institution or the post-loan risk management of the loan that has been applied for, the "credit investigation" will inevitably have a negative impact.
2. also "credit" without fault "?
As mentioned earlier, "credit reference" will inevitably have an objective adverse impact on the owners, but will it be "credit reference" as long as the supply is cut off? The answer is no, the bad end of the house belongs to the serious breach of contract of the developer, the owner can not only claim that the developer to pay liquidated damages or compensation for the loss of the overdue delivery of the house, but also cancel the loan contract and the mortgage contract related to the bank at the same time. According to the "Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Commercial Housing Sales Contract Disputes" (2020 Amendment), Article 21, paragraph 2: "After the commercial housing sales contract is confirmed to be invalid or revoked or terminated, the commercial housing guarantee If the loan contract is also terminated, the seller shall return the principal and interest of the house purchase loan and the house purchase money collected to the security right holder and the buyer respectively."
Case one
Case No:(2019) Zhejiang 07 Min Zhong No. 6852
Trial court:Jinhua Intermediate People's Court of Zhejiang Province
Name of Case:Zhejiang Dongyang Rural Commercial Bank Co., Ltd. and Jin Mouping Tort Liability Dispute
Referee's view:From the signing of the contract on July 14, 2015 to February 20, 2018, Jin Mouping fulfilled his repayment obligations as agreed in the contract. In March 2018, he failed to repay the principal and interest as agreed. This is because at the same time, Jin Mouping filed a commercial housing presale contract dispute lawsuit, demanding the termination of its commercial housing sales with China Service Company and its purchase loan contracts with Agricultural Commercial Bank and China Service Company. Therefore,There is no subjective fault for Jin Mouping's failure to perform his obligations in accordance with the contract on the loan since March 2018, and it cannot be determined that Jin Mouping has broken his trust,Therefore, there is nothing wrong with the first instance ruling that the Agricultural Bank should revoke Jin Mouping's bad credit record arising from the loan since March 2018.
Case II
Case No:(2019) Supreme Famin Re -245
Trial court:The Sixth Circuit Court of the Supreme People's Court
Name of Case:Qinghai Branch of China Construction Bank Co., Ltd. v. Wang Zhongcheng, Wang Qibo, Wang Qibao and Qinghai Yuezhou Real Estate Development Co., Ltd. (dispute over financial loan contract)
Referee's view:In this case, the contract was terminated due to the inability of the Yuezhou Company to deliver the house, resulting in a serious imbalance in the rights and obligations of the parties agreed in the contract. The specific performance is as follows: Yuezhou Company's default and failure to pay the house led to the termination of the contract of all parties, but it actually occupied the down payment paid by Wang Zhongcheng and other three people and the mortgage loan of CCB Qinghai Branch; CCB Qinghai Branch enjoys both mortgage rights and creditor's rights to Yuezhou Company and Wang Zhongcheng according to the contract. Wang Zhongcheng and others did not obtain the house, but paid the down payment and had to repay the mortgage loan. If the rights and obligations agreed upon in the contract are dealt with, the three persons in Wang Zhongcheng, etc.In the case of no fault for the termination of the contract, it is still required to bear the responsibility for the repayment of the remaining loan, that is, it obviously unreasonably increases its burden, and the rights and obligations of all parties are unbalanced, which violates the principle of fairness. Therefore, when hearing the case, we must fully consider the close relationship between the contracts under the commercial housing mortgage loan business model and the balance of the rights and obligations of the parties, so as to avoid the imbalance of the rights and obligations of the three parties caused by the emphasis on the relativity of a single contract.
According to the above judicial interpretation and the case, the buyer can be exempted from the obligation to repay the remaining mortgage loan to the bank if the buyer cancels the purchase contract and the related guarantee contract.
At the same time, buyers can also actively exercise the right of objection and declaration of credit investigation granted by law, so as to reduce the negative impact of overdue records.
What if 3. "credit investigation"
Step 1: Objections
According to regulations:Article 25 of the "Regulations on the Administration of the Credit Investigation Industry" stipulates that if the information subject believes that there are errors or omissions in the information collected, stored, or provided by the credit investigation agency, it has the right to raise objections to the credit investigation agency or information provider and request corrections.
The Business Rules for Handling Personal Credit Objection in the Basic Database of Financial Credit Information stipulates that individuals who believe that there are errors or omissions in credit exposure information may apply to the credit reference center and credit sub-center in person or by entrusting an agent.
Specific process:1. I shall carry the original of my valid ID card or entrust others to carry the "Power of Attorney", as well as the original valid ID cards of both the principal and the agent to fill in the "Personal Credit Objection Application Form" to the credit management department of the branch of the People's Bank of China. When a credit reporting agency or information provider receives an objection, it shall mark the relevant information with objection in accordance with the regulations of the credit reporting industry supervision and administration department of the State Council. The general reply is to reply within 20 days after accepting the objection application. After the prescribed 20 days, the objection applicant can go to the credit sub-center to receive the reply letter.
2. Report directly to the credit reference center by telephone or by myself directly present.
Action 2: Make a statement
According to regulations:Article 24 of the Interim Measures for the management of personal credit information basic database stipulates that for the objection information that cannot be verified, the credit reference service center shall allow the objection applicant to make a personal statement within 100 words of the relevant objection information. The personal statement shall not contain any content unrelated to the objection information, and the objection applicant shall be responsible for the authenticity of the personal statement.
Specific process:You can apply to the credit reference center to add a "personal statement" to the credit card report, describing the reason for the suspension of loans, whether litigation has been carried out, etc., to explain the situation.
Action 3: Complaint
You can complain to the credit management department of the local People's Bank or the financial consumer rights protection department. After receiving the complaint, you usually receive the result of the complaint within 30 days.
Measure 4: Litigation
It may bring a suit before a people's court with jurisdiction or apply for arbitration to an arbitration commission with jurisdiction to resolve relevant disputes through judicial procedures.
Action 5: Other
Other preventive measures, such as regulating the use of credit cards and being cautious about being a guarantor, are also things we need to pay attention to on a daily basis.
Conclusion:At present, the phenomenon of unfinished supply is still emerging one after another. As the owner, it is indeed worthy of sympathy, but the resulting risk of breach of trust should not be underestimated. If necessary, the right of objection and declaration granted by the credit investigation legal norms should be actively applied to reduce the risk of breach of trust. And up to now, the major banks are also in the corresponding party and state policies, to suspend or understand the behavior of the suspension of loans.
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