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The plaintiff alleged
Zhang Mouxia's appeal request: revoke the first-instance judgment and change the judgment to reject Zhang Mouling's litigation claim in accordance with law. Facts and reasons: From the analysis of the payment of the house payment, the actual use of the house, and the registration of the house, it is not enough to prove that there is a relationship between me and Zhang Mouling to buy a house in my name. The court of first instance erred in finding the facts and insufficient evidence.
The defendant argued that:
Zhang Mouling argued that she agreed with the first-instance judgment and did not agree with Zhang Mouxia's appeal request.
The court ascertained
Zhang Mouling filed a lawsuit with the court of first instance requesting: 1. Cancel the "Borrowed Name Purchase Agreement" orally entered into between me and Zhang Mouxia; 2. Zhang Mouxia returned 324,925.41 yuan of my purchase price, 4,120.74 yuan of deed tax, 137 yuan of stamp duty, and 5,494 yuan of residential public maintenance fund; 3. Zhang Mouxia compensated me for the loss of 2 million yuan in the difference in the value added of my house; 4. The litigation fees, preservation fees, and guarantee fees of the case are to be borne by Zhang Mouxia.
The court of first instance found the facts: Zhang Mouxia and Zhang Mouling were sisters. On August 13, 2000, the seller (Party A) Company A (hereinafter referred to as Company A) and the buyer (Party B) Zhang Mouxia signed the Beijing Affordable Housing Pre-sale Contract, stipulating that Party B would purchase Party A's No. 1 house (hereinafter referred to as the house involved in the case), and the purpose of the house was ordinary residence, and the deposit for Party B's pre-purchase house was 10,000 yuan. The total price is 273204 yuan;
On August 18, 2000, the borrower (Party A) Zhang Mouxia signed the "Beijing Housing Fund Management Center Personal Housing Guarantee Entrustment Loan Loan Contract" with the lender (Party B) Bank and the guarantor (Party C) Company A, agreeing that the loan amount was 140,000 yuan, and on November 2, 2006, the house involved in the case obtained a house ownership certificate, indicating that the owner of the house, Zhang Mouxia, had a construction area of 76.31 square meters, and the nature of the house was affordable housing.
On July 27, 2010, the Beijing Housing Provident Fund Management Center issued a certificate certifying that the borrower, Zhang Mouxia, had a loan amount of 140,000 yuan and a loan period of 20 years and that the housing provident fund loan with a loan term of 20 years had been fully repaid.
According to another investigation, the house involved in the case paid 274716 yuan for the purchase price, 137 yuan for stamp duty, 5,494 yuan for the maintenance fund, and 4,120.74 yuan for the deed tax.
During the first-instance trial, Zhang Mouling submitted the original passbook, "Beijing Affordable Housing Pre-sale Contract", "Beijing Housing Fund Management Center Personal Housing Guarantee Entrustment Loan Loan Loan Contract", "Letter of Guarantee Commitment", housing down payment and final payment invoices, stamp tax receipts, public maintenance fund receipts, deed tax invoices, withdrawal receipts, and loan repayment certificates to prove the fact that she purchased the house involved in the case in the name of Zhang Mouxia and that the relevant expenses were paid by her. Zhang Mouxia did not recognize the purpose of the above evidence, denied that there was a relationship between the two parties to buy the house in borrowed names, and believed that the relevant expenses were paid by her.
Zhang Mouxia claimed that after signing the pre-sale contract and loan contract, she had to go abroad and left Zhang Mouling about 500,000 yuan for Zhang Mouling to help her pay the down payment for the house and handle the sale and purchase of the house. Zhang Mouling did not recognize her claim, and Zhang Mouxia did not submit evidence to prove the delivery of the money. During the first-instance trial, Zhang Mouling submitted the original documents such as the permit for residence, the list of housing delivery, the "Housing Entrustment and Escrow Contract", the list of property fee management fees, the property fee invoice, the TV acceptance form and the user's receipt, China Unicom's business acceptance form, the housing entrustment rental contract, and the rent payment record, to prove that the house involved in the case was under her actual control and use. Zhang Mouxia did not recognize the purpose of the above evidence, and claimed that the house involved in the case had been recovered on July 11, 2020. During the trial, Zhang Mouling submitted witness testimony and applied for witnesses to appear in court to testify. The witness appeared in court to state that the house involved in the case was purchased by Zhang Mouling, and the name of Zhang Mouxia was borrowed when purchasing.
During the first-instance trial, Zhang Mouxia submitted the passbook and transaction records of the Industrial and Commercial Bank of China to prove that she paid the housing bank loan involved in the case. In this regard, Zhang Mouling did not approve. Zhang Mouling claimed that when Zhang Mouxia lived in her home, she took the bank passbook by herself and submitted a video disc to support the case. During the first-instance trial, Zhang Mouxia submitted the original certificate of real estate property rights to prove that she was the owner of the house involved in the case. The title certificate states that the registration date is 27 September 2019 and contains the words "reissue". Zhang Mouxia also submitted testimony to prove that the testimony submitted by Zhang Mouling was not true. During the first-instance trial, the two parties negotiated and determined that the value of the house involved in the case was 4.4 million yuan.
On October 17, 2019, Zhang Mouxia set the highest mortgage on the house involved in the case, the mortgagee was Company B, the amount of the guaranteed main claim was 4.52 million yuan, the scope of the guarantee was the principal and interest, and the debt performance period was from October 16, 2019 to October 16, 2024.
The court of first instance held that civil entities engaged in civil activities should follow the principle of good faith, uphold honesty, and abide by their commitments. To determine whether there is a borrowed name purchase relationship between the parties, it should be considered from the factors such as whether there is a borrowed name purchase agreement between the parties, whether the borrower is the actual investor and has performed the corresponding capital contribution, whether the house is actually controlled and used by the borrower, and whether the performance process of the house sale and purchase conforms to the habit of borrowing a name. However, when a person with a relationship of relatives or friends buys a house in a borrowed name, he often does not sign a formal borrowed name sale and purchase agreement based on interpersonal trust, and the other elements mentioned above do not fully appear in individual cases, so the above elements should be fully considered and comprehensively analyzed in light of the facts of the case. In the first-instance case, Zhang Mouling and Zhang Mouxia were relatives, and the two parties did not sign a written agreement to buy a house in their names. During the first-instance trial, Zhang Mouling held the original contract and invoice, and submitted evidence such as passbooks, withdrawal receipts, and bank transaction details to prove that she actually contributed capital and occupied and used the house involved in the case. Zhang Mouxia claimed that the purchase price and bank loan involved in the case were paid by her, and claimed that she gave Zhang Mouling about 500,000 yuan for Zhang Mouling to assist in handling the house sale, but did not provide evidence to prove the delivery of the money. Comprehensively considering the evidence submitted by both parties, the court found that a contractual relationship between Zhang Mouling and Zhang Mouxia had formed a borrowed name to buy a house.
A contract established in accordance with law is legally binding on the parties, and the parties shall perform their obligations in accordance with the agreement. In the first-instance case, although the house involved in the case was affordable housing, the pre-sale contract of the house was signed before April 11, 2008, and now the house has met the conditions for listing and trading, so the agreement between the two parties on buying a house in a borrowed name does not violate relevant policies, does not infringe on the public interest, and does not violate the mandatory provisions of laws and administrative regulations, and should be legal and valid, and both parties should perform according to the contract. Now Zhang Mouxia has set up a mortgage on the house involved in the case, so that Zhang Mouling cannot go through the registration procedures for the transfer of house ownership, resulting in the inability to achieve the purpose of the contract, so Zhang Mouling has the right to request the termination of the contract relationship between the two parties to buy a house in a borrowed name. Zhang Mouling's claim to terminate the "Borrowed Name Purchase Agreement" orally entered into by the two parties was based on law and was supported by the court.
After the contract is terminated, if the performance has not been performed, the performance shall be terminated, and if the contract has already been performed, the parties may request restoration of the original state, take other remedial measures, and have the right to claim compensation for losses, depending on the performance and the nature of the contract. In the first-instance case, Zhang Mouling's claim for Zhang Mouxia to return the deed tax, stamp duty, and residential public maintenance fund was based on the law and the amount was correct, and the court supported it. After investigation, Zhang Mouling paid 274716 yuan for the purchase of the house, and the court supported the reasonable part of her claim. The reason for the termination of the contract was that Zhang Mouxia set up a mortgage on the house involved in the case without authorization, which made the purpose of the contract impossible to achieve Zhang Mouling, so Zhang Mouxia should compensate Zhang Mouling for the corresponding loss of house appreciation for the income generated by the appreciation of the house. According to the value of the house agreed by both parties, Zhang Mouling's claim that the loss of the difference in the price of the house did not exceed the actual price difference of the house, and the court also supported it. The preservation fee claimed by Zhang Mouling was a reasonable expense for her rights protection, and the court supported it. The guarantee fee claimed by Zhang Mouling has no contractual and legal basis, and the court will not support it.
During the second-instance trial of this court, Zhang Mouxia submitted the results of the bank account opening receipt, deposit receipt, and entry and exit record inquiry on July 11, 2007, in order to prove that Zhang Mouxia left money for Zhang Mouling to help her pay the down payment for the house and handle the house sale after leaving the country. Zhang Mouling issued a cross-examination opinion saying that Zhang Mouxia bought a house in her hometown, and the money was transferred directly from Zhang Mouling's account to the buyer of the house, about 200,000, and Zhang Mouling also paid 150,000 yuan in advance, which has nothing to do with this case. During the trial, Zhang Mouxia also applied for the witness Tian to appear in court, wanting to prove that there was no borrowing name to buy a house between Zhang Mouxia and Zhang Mouling, and that Zhang Mouxia left 500,000 yuan for Zhang Mouling to deal with the house in Beijing before going abroad. Zhang Mouling issued a cross-examination opinion, saying that she did not recognize the authenticity and relevance of the witnesses' testimony. Tian's testimony in court exceeded the time limit for presenting evidence, and he lived in Yingkou while Zhang Mouxia was in Beijing, and the two parties had no contact. Tian's statement is inconsistent, and the source of the testimony is Zhang Mouling's brother and sister, which does not conform to common sense.
The other facts ascertained by this court after trial are consistent with the facts found by the court of first instance.
Adjudication Results
The first-instance judgment: 1. Terminate the "Agreement to Purchase a House in a Borrowed Name" orally entered into by Zhang Mouling and Zhang Mouxia on the No. 1 house located in Fengtai District, Beijing; 2. Zhang Mouxia returned Zhang Mouling's purchase price of 274716 yuan, stamp duty of 137 yuan, maintenance fund of 5,494 yuan, and deed tax of 4,120.74 yuan within 10 days after the judgment took effect; 4. Rejecting Zhang Mouling's other litigation claims.
Second-instance judgment: The appeal was rejected and the original judgment was upheld.
Property Lawyer Reviews
According to the ascertained facts, the registered property owner of the house involved in the case was Zhang Mouxia, and Zhang Mouling submitted the original documents such as the "Beijing Affordable Housing Pre-sale Contract", "Beijing Housing Fund Management Center's Personal Housing Guarantee Entrustment Loan Loan Contract", "Letter of Guarantee Commitment", passbook, house down payment and final payment invoices, stamp tax receipts, public maintenance fund receipts, deed tax invoices, withdrawal receipts, loan repayment certificates, and other originals, as well as relevant materials for housing residence and rental, asserting that she was the actual purchaser of the house involved in the case. and actual control over the premises.
Zhang Mouxia claimed to leave Zhang Mouling 500,000 yuan before going abroad and entrusted Zhang Mouling to handle the relevant housing sales matters, but she did not submit evidence to prove this during the first instance; During the second-instance trial, although Zhang Mouxia submitted the results of the bank account opening receipt, deposit receipt, and entry and exit records, there was a big difference between the time when the money was deposited in the bank and the time of purchasing the house, and there was also a big discrepancy between the amount of money and the 500,000 yuan claimed by Zhang Mouxia, so it was difficult for the court to accept Zhang Mouxia's claim. Taking a step back, even if Zhang Mouxia had left part of the money with Zhang Mouling, she did not provide evidence to prove the connection between the said money and the purchase price of the house involved in the case. And Zhang Mouxia said that she returned to China in 2008, but since returning to China, she has not claimed rights from Zhang Mouling regarding the possession, use, and income of the house. Therefore, based on the evidence in the case submitted by both parties, combined with the fact that Zhang Mouling held and controlled the house for a long time with the relevant materials of the house, the court found that it was not improper for Zhang Mouling and Zhang Mouxia to form a contractual relationship between Zhang Mouling and Zhang Mouxia to buy a house in a borrowed name. The court's determination of the validity of the borrowed name purchase contract was also not improper.
Now Zhang Mouling's claim to terminate the contract on the grounds that the purpose of the contract cannot be achieved has a legal basis and should be supported. After the contract was terminated, Zhang Mouling's request for Zhang Mouxia to return the relevant purchase money, deed tax, stamp duty, and residential public maintenance fund has a factual and legal basis and should also be supported. With regard to the liability for the termination of the contract, since Zhang Mouling recognized that the reason for the termination of the contract was that she did not have the qualifications to purchase the house and that the house was mortgaged by Zhang Mouxia, the liability for the termination of the contract was caused by the reasons of both parties, and it was not improper for the court of first instance to support Zhang Mouling's claim for the loss of housing appreciation interests with reference to the current value of the house recognized by both parties.
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