On September 15, 2021, the Supreme Court, as part of the panel of judges of the Second Judicial Chamber of the Civil Court of Cassation in case No. 372/2583/18, annulled the decision of the Court of Appeal due to an overly formalized approach to the court's literal understanding of the claims.
"IPK" LLC appealed to the court with a claim against the mortgagee, "Collaba" LLC, PJSC "RVS Bank" for recognition of the termination of the mortgage legal relationship and annulment of decisions on registration of ownership.
The plaintiff indicated that a mortgage agreement was concluded between him and the mortgagee, the subject of which is a restaurant complex, which was later divided into separate real estate objects with his consent. That is, the legal relationship of a mortgage was established in relation to seven objects transferred by the plaintiff as a guarantee of the fulfillment of the obligation of another person to the mortgagee under the loan agreement. The defendant became the owner of seven mortgage objects, he also registered ownership of a plot of land in order to repay the debt, therefore, in the plaintiff's opinion, the legal relationship between the parties to the case had changed and he believed that the legal relationship of the mortgage under the mortgage agreement between him and the mortgagee ceased in in full in accordance with Part 1 of Art. 599 of the Civil Code of Ukraine, Art. Art. 33, 36 of the Law of Ukraine "On Mortgage" regarding six objects of immovable property.
The local court, with which the appellate court agreed, refused to grant the claim on the grounds that the method of protection chosen by the plaintiff does not correspond to the methods of protection of violated rights in disputed legal relations defined by the Civil Code.
In this case, only decisions or actions of the state registrar that violate the plaintiff's rights can be appealed, and the defendant in the case must be the state registrar whose decision or actions, according to the plaintiff, led to a violation of his rights and interests protected by law. At the same time, "IPK" LLC did not file any claims against the state registrars.
Having considered the cassation appeal of the plaintiff, the Supreme Court indicated that the current legislation provides for the right to challenge in court the state registration of the ownership of the subject of the mortgage by the mortgagor, acquired out of court.
Analysis of the norms of Art. 13, 42, 48, 50, 51, 175 of the Civil Code of Ukraine gives grounds for concluding that the parties in the case are the plaintiff and the defendant, between whom the dispute arose, for the resolution of which the plaintiff appealed to the court with a claim against the defendant.
Determination of the defendants, subject matter and grounds of the dispute is the right of the plaintiff. However, it is the duty of the court to establish the appropriateness of the defendants and the validity of the claim, which is carried out during the hearing of the case. The proper defendant must be such a person, at the expense of which it is possible to satisfy the claims. The court protects the violated right or legally protected interest of the plaintiff from the defendant.
The dispute on the cancellation of the decision on the state registration of the real right to immovable property should be considered as a dispute related to the violation of the plaintiff's civil rights to immovable property by another person who has registered a similar right to the same immovable property. The proper defendant in such a dispute is the person whose property right to property is disputed and in respect of whom an entry has been made in the State Register of Property Rights to immovable property. The state registrar cannot act as a proper defendant in such a dispute.
Conclusions similar in content are set forth in the decision of the Great Chamber of the Supreme Court dated September 4, 2018 in case No. 823/2042/16 , dated April 1, 2020 in case No. 520/13067/17 .
In the case under review, the plaintiff had a dispute with the mortgagee and the bank regarding the latter's violation of the plaintiff's ownership rights to immovable property as a result of entering into the State Register of Real Property Rights to immovable property records of state registration of ownership rights to the disputed objects of immovable property by these persons .
At the same time, it should be taken into account that incorrect, from the point of view of linguistics, the formulation of the claims of the claim cannot be an obstacle to the protection of the violated right of the person who appealed to the court, since an excessively formalized approach to the literal understanding of the claims of the claim, as an implemented method of defense, contradicts the tasks of civil justice .
Therefore, the Supreme Court canceled the decision of the appellate court and referred the case for a new consideration to the appellate court.