Real Estate Developers Provide Guarantees For Home Buyers’ Mortgage Loans

Most families in our country choose to take out a mortgage loan from a bank when buying a house.In order to promote the sale of commercial housing and withdraw funds,the developer had to provide a guarantee for the buyer before the bank obtained the mortgage right,and the developer’s phased guarantee liability was generated.In practice,mortgagees often have overdue loans,and before obtaining the mortgagee’s mortgage rights,the bank directly requires the developer to assume the guarantee liability and deduct funds from its margin account,causing a series of disputes.In practice,however,the adjudication personnel did not fully agree on the conditions for the release of the developer’s phased guarantee liability and whether the developer enjoyed the right of rescission after assuming the phased guarantee liability,and there were certain differences in the judgment standards.In order to promote the unification of the criteria for the determination of judicial adjudication,it is the main purpose of this paper to reduce the legal risk of developers bearing phased guarantee liability.This article takes "Comment on the Case of Real Estate Developers Providing Phased Guarantee Liability for Mortgage Loans to Buyers",and takes Changsha Fangxingshengrong Real Estate Co.,Ltd.(hereinafter referred to as Fangxing Company)and China Construction Bank Co.,Ltd.Hunan Branch(hereinafter referred to as CCB Hunan Branch)and buyer Huang Yueping guarantee contract dispute and recourse dispute as the main text case.Similar cases published by the Supreme People’s Court and other courts are supplemented by an analysis and study of the issues involved in the phased guarantee liability of developers.Through the case analysis research method,the literature analysis research method and the comparative research method,the case is elaborated and analyzed,and the focus of the dispute in the main text case is summarized,namely "whether the guarantee contract dispute and the dispute over the right of recourse can be heard in the same litigation","whether the phased guarantee liability of Fangxing Company is discharged","whether the mortgage warrant handled after the advance notice is sealed" has a right defect","the determination of the validity of the standard terms provided by the Hunan Branch of CCB",and the case is comprehensively analyzed and demonstrated according to relevant laws and regulations.The author believes that the creditor with joint and several guarantee liability has the right to sue the debtor or the guarantor in the same lawsuit,and the guarantor also has the right to sue the debtor and the creditor to the court based on the loan contract and the guarantee contract;When both the debtor provides collateral and a third party provides a guarantee,and the contract does not stipulate the order of realization,the collateral provided by the debtor should be realized in priority,and the main text case should give priority to the debtor providing collateral to realize the claim when the debtor has provided real estate as security;After Fangxing Company fulfilled its notification obligation,cc B Hunan Branch refused to go to collect other warrants,which actually prevented the achievement of the contract conditions,and Fangxing Company’s phased responsibility was lifted.Through the analysis of the case and the author’s own practical experience summary,in the fifth chapter of this article,from the perspective of the developer and the buyer and the developer and the lending bank,a few superficial matters of attention are proposed,in order to provide a valuable reference for the reduction of the developer’s phased guarantee liability.