In 2016, Russian military personnel began to go to court in an attempt to refuse to participate in the military mortgage program and choose another way of housing, faced with the reluctance of unit commanders to exclude them from the list of participants in the Savings and Mortgage System (NIS). the site figured out what the actions of the commanders are connected with and why not all military personnel can get rid of the military mortgage.
Two categories of servicemen can take part in the Savings and Mortgage System (NIS): the military, who have the right to join the program voluntarily, and the mandatory participants in the NIS. Andrey Pivovar, a lawyer at the Military Legal Center, told the website about this.
Under certain conditions, contractors in ranks from sailor and soldier to foreman can voluntarily enter the military mortgage program under certain conditions. To participate in the NIS, it is enough for them to submit a report and collect a minimum of documents.
"The rest of the servicemen, including officers, become participants in the NIS without fail in accordance with 117-FZ. The law does not provide for another procedure for providing housing for this category of servicemen," the lawyer explained.117-FZ "On the savings and mortgage system of housing for military personnel" (click to view)
- Chapter 3. Article 9.1. The participants of the savings-mortgage system include the following military personnel:
1) persons who graduated from military vocational educational organizations or military educational organizations of higher education and in connection with this received the first military rank of officer starting from January 1, 2005, while these persons who entered into the first military service contracts before January 1, 2005, may become participants by expressing such a desire;
2) officers called up for military service from the reserve or who voluntarily entered military service from the reserve and entered into the first military service contract starting from January 1, 2005;
3) warrant officers and warrant officers, the total duration of military service under the contract of which will be three years starting from January 1, 2005, while these persons who entered into the first contracts for military service before January 1, 2005 and the total duration of military service under the contract of which as of January 1, 2005 was no more than three years, can become participants by expressing such a desire;
4) sergeants and foremen, soldiers and sailors who have entered into a second contract for military service not earlier than January 1, 2005, who have expressed a desire to become participants in the accumulative mortgage system;
5) persons who graduated from military vocational education institutions in the period after January 1, 2005 to January 1, 2008 and received the first military officer rank in the course of training, may become participants by expressing such a desire;
6) persons who received the first military rank of an officer in connection with entering military service under a contract for a military position for which the state provides for the military rank of an officer, starting from January 1, 2005, while these persons who received the first military rank of an officer before January 1 2008 may become participants by expressing such a desire;
7) military personnel who received the first military rank of officer in connection with their appointment to a military position for which the state provides for the military rank of officer, starting from January 1, 2005, the total duration of military service under the contract is less than three years, while these persons who received the first military rank of an officer before January 1, 2008, can become participants by expressing such a desire;
8) military personnel who have completed courses for the training of junior officers and in connection with this received the first military rank of officer starting from January 1, 2005, the total duration of military service under the contract is less than three years, while these persons who received the first military rank of officer before January 1, 2008, may become participants by expressing such a desire.
By refusing to issue documents to the mandatory participants of the NIS, the commander does not violate their rights. However, military personnel who disagree with the actions of an authorized person may apply to the court.
"The Supreme Court tried to orient the garrison and district military courts in such a way that if a citizen belongs to the category entitled to voluntary participation in the NIS, then he has the right to refuse to participate in the NIS. If an official refuses to draw up documents for such a military to be excluded from the register of participants in the Accumulative Mortgage System of Housing, the court obliges him to draw up documents," Pivovar explained.An authorized person must send a package of documents for exclusion from the program to the Department of Housing, namely to the department of accounting and maintenance of the Savings and Mortgage System.
The military man himself can send a letter to the department with an application for deregistration, however, according to the interlocutor, in practice, the department always refuses to respond to such requests. "The military can also challenge the actions of the department in court. The court, which found that the military participates in the NIS voluntarily, as a rule, makes a decision in his favor," he added.
For the non-staff performance of the duties of a representative of the NIS in each part, an authorized person is appointed. The appointed officer is obliged to conduct conversations with the military personnel under the contract and offer them to join the ranks of the NIS participants, based on the length of their service.
Obtaining a mortgage loan for the purchase of real estate is an extremely responsible step, which must be balanced and thought out in detail. But life can turn in such a way that it will be necessary to terminate the signed loan agreement. Is it possible to refuse a mortgage - we will consider further.
Any loan agreement must include a clause on liability in case of non-fulfillment or improper fulfillment of the obligations assumed.
A borrower who chooses to forego a mortgage may face the following consequences in the event of non-payment:
- Accrual of penalties and fines, which will significantly increase the final cost of the loan.
- Deterioration of the borrower's credit history and blacklisting or stoplisting by the creditor bank.
- Contacting a collection agency in order to return the debt (knowing the format of communication of such employees and their methods of work, it is better not to bring this stage to this stage).
- Applying to the judicial authorities with a large debt (if a positive decision is made in favor of the bank, then in accordance with the executive document, the court will arrest the debtor's bank accounts, his movable and immovable property, and begin the process of foreclosing the object of pledge under the agreement).
CONCLUSION: As you can see, the consequences can be quite deplorable. The client can refuse the mortgage and lose not only the collateral itself, but also the money in the accounts and other property. You will learn more about that from our last post.
What are the options to opt out?
Return the deposit to the bank with his consent
Difficult life situation or financial difficulties under the law do not release the borrower from the fulfillment of formalized obligations. The only way out here is to negotiate with the bank.
In a situation where the client did not conclude a mortgage agreement, and the bank transferred the money to the account, but they were not spent and, accordingly, the loan service was not started, the money is simply returned to the lender. In this case, the borrower will be obliged to pay interest to the bank for the days during which the funds were in the account. The fact of their direct non-use is not important for the bank.
After paying the accrued interest, the encumbrance on the property will be removed.
Sell and close
The next way to refuse a mortgage is to sell a residential property, settle with the bank using the proceeds and close the loan agreement. For such an operation, you will need to obtain the consent of the creditor.
As practice shows, this option has some disadvantages. For example, for a quick sale of a mortgage apartment, you will probably need to lower the price below the market mark. Also, buyers who are aware of the existing encumbrance of housing are reluctant to contact such sellers, since the transaction may be delayed in time.
The repayment of the mortgage by maternity capital will be credited by the bank as an investment of its own funds. They are not subject to return to hand, and when selling such an apartment, you need to take into account the interests of minors.
You will learn more about how and how to do this below.
Refinance
Refinancing programs involve improving lending conditions for customers by issuing a new loan to pay off the old one. Typically, the client draws up a new mortgage in a third-party bank and repays the debt under the current loan agreement and closes it.
The key purpose of such an operation is to lower the interest rate and obtain other attractive conditions. You can also change the currency of the loan, increase the repayment period and, thereby, reduce the amount of the monthly payment. Many banks offer refinancing programs with a down payment. This fact should also be taken into account in advance.
Restructure
Mortgage loan restructuring is used to provide effective measures to help borrowers who find themselves in a difficult life or financial situation. This will avoid the loss of collateral and find ways to increase solvency.
That is, in agreement with the bank, the lender agrees to meet the borrower halfway and soften the terms of payments for him. In practice, apply:
- credit holidays (the period during which it will pay only interest for the use of borrowed funds);
- cancellation of accrued penalties and fines (in some cases or by court decision, banks cancel penalties);
- deferred payment (the bank can meet halfway and defer current payments for a short period of time with their transfer in the drawn up schedule, thereby increasing the loan period and overpayment).
To take advantage of the restructuring, the client will need to document the objectivity of the current situation and give undeniable reasons for the deterioration of their financial situation.
Close through the court
The concluded and signed loan agreement can be terminated through the court. To do this, it will be necessary to indicate good reasons for refusing a mortgage. An example here would be the identification of a significant deficiency or defect in a purchased property.
In this situation, when the documents are signed, but the deal has not yet been concluded, the court terminates the sale and purchase agreement, the seller of housing returns the funds received to the buyer in full, which extinguishes the mortgage debt ahead of schedule.
To rent
Renting a mortgaged apartment will allow you to compensate for current mortgage payments, but at the same time not terminate the loan agreement. The money received will be used to service the loan.
Depending on the terms of the concluded agreement and the policy of the creditor bank, the obligation and expediency of notification of the leasing of the collateral will depend.
Another option here may be a civilized lease. In this case, the mortgage is reissued to a third party, and the former borrower becomes the tenant of this housing. Paying the monthly payments becomes the responsibility of the new borrower. And the old one pays the rent.
You will learn more about what was bought in a mortgage for rent and how to arrange everything correctly from a separate post.
Let it be as it is
If the difficulties encountered are temporary, and there is a prospect of solving problems in the near future, then it is more expedient to leave the situation unchanged. To do this, the borrower will have to make efforts to fulfill their obligations and find the necessary funds.
If today there is nothing to pay with, then you should not refuse the pledge and the loan. The way out may be the search for additional income, contacting relatives / relatives for a loan.
Is it possible to refuse a mortgage if it has not yet been signed?
If the borrower changed his mind about obtaining a loan for the purchase of real estate at the stage when the loan agreement has not yet been signed, then this will require the bank to be notified in writing or orally. A detailed indication of the circumstances and reasons for such a decision is not required.
For such actions, according to the law or agreement, neither the bank nor the court have the right to apply any penalties. However, it is important to understand that the BKI reflects all the borrower's credit transactions, including the filing of applications. Refusal of a mortgage at any stage of the transaction can negatively affect your credit history.
Statistics show that such situations are common in the Russian Federation due to changes in the needs of the client, a change in decision, etc. The need for a mortgage may simply disappear, and the client will intend to solve housing problems in a different way.
Features of the military mortgage
Waiver of a military mortgage has a lot of features and consequences for the military borrower. Since participation in the military mortgage program involves the use of savings from the state budget, which can be spent on paying the down payment, and monthly payments are also compensated at the expense of the state, the termination of the contract will be accompanied by the loss of all benefits and paid subsidies.
A specific answer to the question "How to refuse a military mortgage?" will depend on the reasons for this refusal. Among the reasons may be dismissal, death or untimely absence of a soldier. You can voluntarily abandon a mortgage only through the courts.
A military man with a length of service of up to 10 years, in case of refusal, will be obliged to return the entire amount of accrued savings. In addition, if he wants to continue to live in the purchased mortgage apartment, the loan will be reissued on standard terms with a higher rate. All repayment obligations will fall entirely on the borrower.
If the length of service is more than 10 years, then the savings are not returned, but further servicing of the loan also becomes the responsibility of the military.
Voluntary refusal to participate in the NIS is considered in agreement with the commanding staff of the serviceman or through the court. Some military men specifically refuse preferential mortgages in favor of subsidies that can be directed to the purchase of housing.
The answers given in the article imply a mandatory discussion of the conditions with the creditor bank in order to prevent the negative consequences of the current situation. As practice shows, only the option of refusal at the stage when the application is approved, but the contract itself is not signed, is not burdened with any consequences. The rest are usually accompanied by a loss of time, effort and money.
Attention! If you have a problem with the bank and you do not know what to do, then be sure to make an appointment with a mortgage lawyer through an online consultant on our website. Just leave a request in a special form.
We are waiting for your questions and we will be grateful for the rating of this post.
Our readers often ask how military mortgages can be waived and if there is a way for a soldier to switch from NIS to other forms of housing.
The Federal Law provides for several types of housing for employees. One of the alternatives to the NIS (accumulative mortgage system) is the housing subsidy UDV (monthly cash payment). The second has great advantages, especially for those who have a long-term relationship with a financial institution.
Is it possible to refuse NIS
According to the legislation, military personnel are given the right to choose how to exercise their right to housing. However, in practice, only those military personnel who signed the first contract before the beginning of 2005 can refuse military mortgages. For them, participation in the NIS is optional. They can get the right to such a mortgage by submitting an appropriate report.
If the employee is already included in the register, then it is impossible to refuse to participate in the program at will. All military personnel who entered service after January 1, 2005 can only rely on a military mortgage, its conditions are described at this link.
An officer may be removed from the register only in the following cases:
- Dismissal.
- Get out of the life of a soldier.
- Declaring him missing or dead.
Registration of refusal from NIS
Officers who have the opportunity to voluntarily participate in the accumulative mortgage system can file a lawsuit indicating the right provided by law to choose the method of providing housing.
If an employee is already participating in the NIS and wishes to receive a UA, then he should indicate that at the time of submitting the report there was no UA housing subsidy, and due to recent changes in legislation, he had a similar desire, which is not prohibited by law.
Today, the possibility of obtaining EDV exists only through the courts.
Reasons for refusing housing on a military mortgage
- Unwillingness to live in the area in which the apartment is offered.
- Obtaining smaller housing.
- The proposed property does not meet the requirements that are put forward for residential premises.
- Unwillingness to live with children on the upper floors or on the ground.
- Other reasons that are not taken into account in the legislation.
A serviceman can refuse offers as many times as necessary, but must justify this.
Is it worth giving up preferential military mortgages?
Before you file a lawsuit, you should think about the fact that the NIS mortgage can be much more profitable than the EDV. This can be especially disadvantageous for young or childless military personnel. The list of banks with the most attractive conditions is presented in this article.
The provision of UDV is made taking into account the norms of living space, which is calculated for all family members. In these calculations, the length of service of the employee is taken into account (as a multiplying factor). The highest rate is possible with a service life of 20 years.
A military mortgage allows you to purchase an apartment without investing your own funds (except in cases where the borrower wants to purchase an apartment with a larger area and at a higher price). The amount of the EVD subsidy may not be enough for this type of housing.
The monthly cash payment can only be received once (per housing), and a military mortgage allows you to purchase a second property or significantly improve the first if the mortgage loan has been fully repaid. The housing subsidy is not designed for the purchase of several apartments, given the current prices for apartments.
Thus, think carefully before you refuse preferential housing loans for military personnel.
It is worth noting that the court rarely satisfies such claims. However, at the moment - this is the only way to refuse military mortgages.
A certain proportion of military personnel, especially those provided with official housing, are not satisfied with military mortgages. They see a more promising and worthy alternative in the housing subsidy.
For this reason, there are also questions about the possibility of abandoning the military mortgage.
If you strictly follow the norms of the law, namely 117-FZ "On the accumulation and mortgage system of housing for military personnel", the grounds for exclusion from the register are:
- dismissal from military service;
- exclusion from the lists of personnel of a military unit in connection with death or death, recognition as missing or dead;
- fulfillment by the state of its obligations to provide a serviceman during the period of military service with living quarters (with the exception of specialized living quarters
housing stock) in another way provided for by the regulatory legal acts of the President of the Russian Federation at the expense of the federal budget.
Thus, the law does not contain a procedure for refusing a mortgage and voluntarily deleting it from the register.
Arbitrage practice
The Tomsk Garrison Military Court granted the serviceman's demands, assigning the duty to the unit commander to send documents to exclude the serviceman from the register of participants in the NIS. The court of appeal upheld the decision of the garrison military court.
The court proceeded as follows:
By virtue of paragraph 2 of Art. 1 and paragraph 1 of Art. 9 of the Civil Code of the Russian Federation, citizens exercise their rights at their own discretion, that is, by their own will and in their own interest. This implies the inadmissibility of forcing their owners to implement certain behavior that constitutes the content of the rights.
According to the first paragraph of paragraph 1 and paragraph 16 of Art. 15 of the Federal Law "On the Status of Military Personnel", the allocation of funds for the purchase or construction of residential premises in the manner prescribed by the Federal Law "On the savings and mortgage system of housing for military personnel" is one of the forms of exercising the right to housing by military personnel.
Both the above-mentioned laws and other normative legal acts do not contain provisions restricting the specified category of military personnel from not exercising this right.
Indicators of the fulfillment by the state of its obligations under the NIS of housing provision are the receipt by the military of funds or the direction by the authorized federal body to the creditor of the NIS participant of a targeted housing loan for the provisions of paragraph 2 of part 1 of Art. 14 of the Federal Law "On the savings and mortgage system of housing for military personnel" goals (part 3 of article 11 of the said federal law).
Thus, a NIS participant who has not used the money on his personal savings account has the right to apply on command with a report on exclusion from the relevant register, thus declaring his unwillingness to exercise his right to housing with the help of funds provided in accordance with the rules of the Federal Law "On the accumulative-mortgage system of housing for military personnel".
In accordance with Art. 5 and with part 4 of Art. 13 of the Federal Law "On the accumulative-mortgage system of housing for military personnel" savings for housing for military personnel are the property of the Russian Federation. They consist of savings contributions, which are accounted for in the personal savings account of the NIS participant. Termination of the NIS participant's right to provide housing in the manner prescribed by the said law is accompanied by the closure of the account and return to
the federal budget of accumulated contributions, as well as other receipts recorded on it.
According to departmental instructions, the formation of a list of military personnel of a military unit for their subsequent exclusion from the register of participants in the NIS is the prerogative of the commander of the military unit.
The implementation by the command of the will of the NIS participant to close the nominal savings account does not violate anyone's rights and legitimate interests, including public ones.