Can the mortgagee still mortgage the mortgage to a third party?

1. In the case that the mortgage is immovable property, when the mortgagor and the mortgagee sign the mortgage contract, the mortgage can be the property owned by the third party. 2. When signing the mortgage contract, the collateral can be the property of a third party, but when creating a mortgage, the collateral must be the property of the mortgagor. Since a chattel mortgage creates a mortgage at the time of signing the contract, the mortgage cannot be the property of a third party when the chattel mortgage contract is signed.

If the mortgaged property is real estate or other immovable property, the ownership of the mortgage does not affect the validity of the mortgage contract, and if you want to create a mortgage, you need to go through the mortgage registration, and the mortgage can be owned by the mortgagor at the time of mortgage registration. Article 34 of the Security Law The following property may be mortgaged: (1) the house and other fixtures on the ground owned by the mortgagor; (2) machinery, means of transportation and other property owned by the mortgagor; (3) State-owned land use rights, houses and other fixtures on the ground that the mortgagor has the right to dispose of in accordance with law; (4) State-owned machinery, means of transport and other property that the mortgagor has the right to dispose of in accordance with law; (5) The land use rights of barren hills, barren ditches, barren hills, barren beaches and other wastelands contracted by the mortgagor in accordance with law and mortgaged with the consent of the contract issuing party; (6) Other property that may be mortgaged in accordance with law.

The mortgagor may mortgage the property listed in the preceding paragraph.

What is the act of the debtor mortgaging the collateral to the creditor, but being mortgaged by the creditor to borrow elsewhere?

The third-party mortgage guarantee contract signed in accordance with law is valid. A mortgage contract is a contract in the nature of security signed between the mortgagee and a third party other than the debtor. The mortgagor creates a mortgage security against the mortgagee with a certain amount of property, and the property here can be either immovable or movable.

Legal basis: Article 143 of the Civil Code of the People's Republic of China is valid for civil juristic acts that meet the following conditions:

1) The perpetrator has the corresponding capacity for civil conduct;

2) The meaning is genuine;

3) Do not violate the mandatory provisions of laws and administrative regulations, and do not violate public order and good customs.

The mortgagee may transfer to a third party, and the mortgagee's consent is not required for the transfer, but the mortgagor must be notified.

During the mortgage period, if the mortgagor transfers the registered mortgage, it shall notify the mortgagee and inform the transferee that the transferred property has been mortgaged; If the mortgagor fails to notify the mortgagee or the transferee, the transfer of the car shall be invalid.

Article 406 of the Civil Code stipulates that during the mortgage period, the mortgagor may transfer the mortgaged property. Where the parties agree otherwise, follow their agreement. If the mortgaged property is transferred, the mortgage right shall not be affected.

If the mortgagor transfers the mortgaged property, it shall promptly notify the mortgagee. If the mortgagee can prove that the transfer of the mortgaged property may damage the mortgage right, it may request the mortgagor to pay off the debts or deposit the proceeds of the transfer to the mortgagee in advance. The part of the transfer price that exceeds the amount of the claim shall belong to the mortgagor, and the debtor shall pay off the shortfall.

1. What are the conditions for the transfer of mortgage rights?

1 The assignment of the mortgage shall be carried out at the same time as the assignment of the principal claim.

The purpose of the establishment of the mortgage right is to ensure the realization of the creditor's right, and the occurrence of the mortgage right is premised on the existence of the creditor's right. Compared with the main creditor's right, the mortgage right is a subordinate right. The mortgage right shall not be transferred separately from the secured claim, and the mortgagee shall not assign the mortgage right to another person separately while retaining the secured claim.

In this case, the separate transfer of the mortgage violates the principle of subordination of the mortgage and is invalid.

2. When the mortgage right and the creditor's right are transferred together, the mortgagee shall be registered for change.

Mortgages are generally immovable property, and immovable property rights are publicized by registration, which is also a common practice in the legislation of various countries. As a security interest, a mortgage should also follow the principle of publicity of property rights. Therefore, the transfer (change) of the mortgage right should also be registered as a change of mortgagee, otherwise the transfer of the mortgage right cannot be used against a third party.

2. Conditions for the exercise of the mortgage right.

1. There is a valid mortgage.

The realization of the mortgage right should first be premised on the existence of the mortgage right, and the parties can only realize the mortgage right when they enjoy the mortgage right. Second, the mortgage must be legally valid. The mortgage right is the right to control the value of the thing, and if it cannot legally exist, it does not enjoy the right of control, and it cannot be said to be repaid in priority.

2. The creditor's right has reached the repayment period and has not been repaid.

The purpose of a mortgage is to secure the repayment of a claim. If the creditor's claim is allowed to exercise the mortgage right before the repayment period has expired, it will damage the debtor's interest in the term that the debtor should enjoy in accordance with the law. Therefore, the mortgagee's exercise of the mortgage right is conditional on the creditor's right having expired and has not been repaid.

However, in the case of a creditor's right that has not yet reached the repayment period, if the debtor loses the benefit of the time limit due to statutory reasons or agreed reasons, the creditor may immediately request the debtor to perform the debt. The creditor's right is secured by a mortgage, and the creditor can also exercise the mortgage right because the debtor loses the term interest.

3. The debtor fails to perform its debts.

If the debt has expired, but the debtor performs the debt, the creditor's claim is repaid, the mortgage is extinguished, and there is no mortgage to be realized.

4. The unliquidated debt is not caused by the creditor.

The mortgagor refers to the person who provides the mortgaged property, which is the counterpart of the mortgagee, and refers to the mortgage of the property to the creditor by the debtor or a third party without transferring the possession of the property in order to guarantee a specific creditor's right. When the debtor fails to repay the debts due, the mortgagee may have priority in repaying the mortgaged property.

The debtor or a third party may mortgage the following property: buildings and other land attachments; the right to use construction land; the right to use maritime areas; and other property not prohibited by laws and administrative regulations. However, the debtor or a third party must have the right to dispose of the property it has pledged.

[Legal basis].Article 395 of the Civil Code.

The following property that the debtor or a third party has the right to dispose of may be mortgaged:

1) Buildings and other land attachments;

2) the right to use construction land;

3) the right to use maritime space;

4) Production equipment, raw materials, semi-finished products and products;

5) Buildings, ships, and aircraft under construction;

6) means of transport;

7) Other property that is not prohibited by laws or administrative regulations from being mortgaged.

The mortgagor may mortgage the property listed in the preceding paragraph.

Article 400. To establish a mortgage, the parties shall conclude a mortgage contract in writing.

Article 402.

Where the property provided for in items 1 to 3 of the first paragraph of Article 395 of this Law is mortgaged, or the buildings under construction as provided for in item 5 of this Law, the mortgage registration shall be completed. The mortgage is created at the time of registration.

Legal analysis: In the case of the debtor's failure to repay the debt, there is no provision on how to enforce the debtor's property and the property of the third mortgage, but in practice, the property of the debt is generally enforced first, and the mortgaged property is enforced then if the debtor's property is insufficient.

Basis of the law: Civil Code of the People's Republic of China

Article 392:Where the secured creditor's rights are secured by both real and personal guarantees, and the debtor fails to perform the debts due or the parties agree to realize the security interest, the creditor shall realize the creditor's rights in accordance with the agreement or the agreement is not clear, and the debtor itself provides security in kind, the creditor shall first realize the security provided by the creditor's rights in respect of the security of the object, and the creditor may realize the creditor's right in respect of the security in rem, or may request the guarantor to bear the guarantee liability. The third party providing the guarantee has the right to recover from the debtor after assuming the guarantee liability.

Article 410 Where the debtor fails to perform its debts due or the parties agree to realize the mortgage rights, the mortgagee may agree with the mortgagor to be repaid in priority with the price obtained from the auction or sale of the mortgaged property. If the agreement harms the interests of other creditors, the other creditors may request the people's court to revoke the agreement.

If the mortgagee and the mortgagor fail to reach an agreement on the method of realizing the mortgage right, the mortgagee may request the people's court to auction or sell the mortgaged property.

If the mortgaged property is discounted or sold, it should be referred to the market**.

When the debtor fails to perform its due debts, the mortgagor shall bear its own guarantee liability according to the agreement, and the mortgagor shall have the right to recover from the debtor after the mortgagee has priority in repaying the collateral.

Legal basis] Article 392 of the Civil Code.

If the secured creditor's right is secured by both real security and personal security, and the debtor fails to perform the due debt or the parties agree to realize the security interest, the creditor shall realize the creditor's right in accordance with the agreement; If there is no agreement or the agreement is not clear, and the debtor itself withdraws the security of the Zheng offering, the creditor shall first realize the creditor's rights on the security of the goods; If a third party provides security in kind, the creditor may realize the creditor's rights in respect of the security in kind, or may request the guarantor to bear the guarantee liability. The third party providing the guarantee has the right to recover from the debtor after assuming the guarantee liability.