While notaries confidently make writs of execution on mortgage agreements, lawyers warn against the illegality of such notarial deeds and call for them to be challenged in court. The number of court cases concerning the recognition of notary’s writs of execution made on mortgage agreements as unenforceable, and the ambiguity of court positions in this regard also indicate the issue of the issue raised.

The purpose of the article is to establish the reasons for the dual perception of the admissibility of this type of protection and the corresponding consequences, followed by suggestions for overcoming them and in general to determine the place of the writ of execution among other options to meet the mortgagee’s requirements and their relationship. expediency and justification of the application of this means of foreclosure on the subject of the mortgage. The question is raised as to whether the notary checks the indisputability of the debtor’s debt to the creditor and the presence of a dispute in this case.

It is established that the fact of the dispute in such notaries proceedings is difficult to detect, because the notary communicates only with the mortgagee, because the mortgagor is not directly involved, and the absence of objections on his part and the dispute as a whole is presumed, so the indisputability is formally confirmed. The notaries deed is not sent to the other party to the contract, despite the fact that it can be immediately filed for enforcement, so it will be subject to appeal only after the opening of enforcement proceedings, which puts the mortgagor at a disadvantage. In view of this, the opinion is expressed to extend the practice of preliminary determination of such a method of foreclosure on the subject of the mortgage in the contract and proposed that the writ of execution be made subject to receipt by the mortgagor of the mortgagee to comply with the claim this is the term. In addition, in order to balance the rights of the mortgagor, the proposal to send him a writ of execution was considered, so that in case of violation of his rights by this notary’s deed, he could appeal it before enforcement against him.

 It is summarized that the provision of the Law of Ukraine “On Mortgage” on foreclosure on a mortgage on the basis of a writ of execution is declarative, because the procedure is regulated by the Procedure for notaries acts by notaries of Ukraine, the provisions of which are sent to the Cabinet of Ministers. The commission of writs in execution on mortgage agreements declared invalid. It was found that cases of execution of writs of execution should be provided for at the level of law. Therefore, the legislation needs to be harmonized, in particular in the context of the expediency of leaving such an out-of-court form of satisfaction of the mortgagee’s claims in general.

Bibliography

Journal articles

1. Fursa S, ta Fursa Ye, ‘Vykonavchyi napys notariusa ta hospodarske sudochynstvo: stari i novi problemy’ (2012) Tsyvilistychna protsesualna dumka 356 (in Ukrainian).

Theses

2. Strokach I, ‘Vykonavchyi napys notariusa v tsyvilistychnomu protsesi’ (avtor dys kand yuryd nauk, 2018) (in Ukrainian).

Websites

3. Kuznets O, ‘Okremi problemy pravovoho rehuliuvannia vchynennia vykonavchoho napysu na kredytnomu dohovori’ (Rada advokativ Kyivskoi oblasti) <https://radako. com.ua/news/okremi-problemi-pravovogo-regulyuvannya-vchinennya-vikonavchogonapisuna-kreditnomu-dogovori> (accessed: 15.08.2020) (in Ukrainian).