Features of the application of mortgage provisions when foreclosure is being made on mortgaged property

The paper examines the features of the application of mortgage clauses when foreclosing on mortgaged property in accordance with the Law of Ukraine «On Mortgage». According to Art. 36 of the Law of Ukraine «On Mortgage», the parties to a mortgage agreement may resolve the issue of foreclosing on the mortgaged property by means of out-of-court settlement on the basis of the agreement. Out-of-court settlement is carried out in accordance with the clause on satisfaction of the mortgagee’s claims contained in the mortgage agreement, or in accordance with a separate agreement between the mortgagor and the mortgagee on satisfaction of the mortgagee’s claims, which is subject to notarial certification, which may be concluded simultaneously with the mortgage agreement or at any time before the court’s decision on foreclosing on the mortgaged property enters into force. The possibilities of using a mortgage clause as such and a separate agreement on satisfaction of the mortgagee’s claims are compared. The legal positions of the Supreme Court of Ukraine and the Supreme Court are analyzed. Examples of current agreements that are supported or not supported by the Supreme Court are given. It is established that the enforcement of foreclosure on the subject of the mortgage, if there are grounds for such enforcement, is possible on the basis of a corresponding clause in the mortgage agreement, which in its legal consequences is equated to a separate agreement on the satisfaction of the mortgagee's claims, however, provided that the construction of such a clause does not provide for a reference to such a separate agreement. The presence of such a reference does not ensure the independent functions of the mortgage clause, different from the agreement on the satisfaction of the mortgagee's claims.