Recently, Lawyer Chen Shu, a partner of Gaopeng Law Firm, organized a series of cases involving a woman's divorce related to civil lending disputes, housing purchase and sale contract disputes, recovery rights disputes, liability disputes for property preservation damages, and creditor revocation rights disputes, which have achieved a comprehensive turnaround. After four years, Lawyer Chen Shu finally assisted the woman in collecting millions of cash.

A divorce case

In July 2018, the woman and her ex husband registered a divorce with the Civil Affairs Bureau of Chaoyang District, Beijing, and signed a "Divorce Agreement", which stipulated that the ownership of a certain house ("Chaoyang House") located in Chaoyang District, Beijing belongs to the woman (note: there are no restrictions on use or sale). Both parties confirmed that there were no joint debts or debts during the marriage relationship. If either party owes to the other party, the debtor shall bear the debt on their own.

After divorce, the ownership of the house is registered in the name of the woman. The following year, on the day when the woman and the buyer processed the registration of changes in the sale of the house, they suddenly discovered that the Chaoyang house could not be transferred. The reason was that it was sued by a company controlled by her ex husband's mother, and they also applied for property preservation measures to seal it down. Since then, a long series of lawsuits have been launched

Four years of litigation and five lawsuits

1. Unexpected Disaster "- Private Loan Disputes

In order to prevent the woman from selling the house and attempting to "refund" her money, the company controlled by her ex husband's mother sued her ex husband and the woman based on a promissory note signed with her ex husband before marriage (as the court has not decided to authenticate, the authenticity will not be discussed here), but only frozen and sealed up the assets under the woman's name (including the Chaoyang house), and did not take any action against her biological son.

In the trial, although the ex husband played the role of defendant, he did not engage in any effective defense. Instead, he actively recognized all the plaintiff's petitions and even provided evidence of daily life during the existence of the marital relationship to the plaintiff's company, with the intention of compiling debts related to the couple's joint purchase of a house. However, the first instance court found that the man had a family relationship with the legal representative/controlling shareholder (his mother) of the company, had received other large amounts of funds in addition to the purchase price in this case, but had not fulfilled any repayment obligations, the divorce agreement did not stipulate joint debts, and other facts. The court ruled to reject all the claims of the company. During the second instance, the man repeatedly admitted that he had borrowed money from the company to buy a house in order for the woman to bear the so-called joint debt of the husband and wife. Although the court of second instance was concerned about the man's admission, it still found that it cannot be concluded that the woman's debt cannot be added solely by adding her name after marriage. Therefore, in the end, only the male party was sentenced to bear the repayment responsibility, and other litigation requests of the company were rejected (the female party still does not bear any repayment responsibility).

After the second instance, the company filed a retrial application, but it was still rejected by the Beijing High People's Court. At this point, the case has achieved a comprehensive victory, and the housing lockdown dilemma caused by the case has ushered in dawn.

The reason for this is only the dawn, because after the company had no hope of retrial, it filed a second private lending lawsuit (no further elaboration will be conducted) and renewed the seal on Chaoyang House.

Key words for flipping: loan agreement, loan source, rationality of litigation role, joint debt signing between husband and wife

2. Adding insult to injury "- disputes over housing sales contracts

Due to the first private lending dispute regarding the preservation measures for the house, the woman was unable to transfer the ownership. The buyer sued the woman on the grounds that the house was sealed off, resulting in the inability to continue the performance of the Sales Contract. The penalty alone was about 2 million yuan, which is a huge debt risk for the woman whose house was sealed off. However, the above-mentioned civil lending disputes were originally a "sudden disaster", and the woman did not intentionally breach the contract in the performance of the house purchase and sale. The application for suspension of the trial of this case has had a positive impact on the first instance of the first loan dispute case; In addition, we also defend that the buyer could have lifted the lockdown and continued to fulfill the purpose of transfer through the objection procedure, but they did not apply and allowed the losses to expand, and should bear the adverse consequences themselves. Although the court ultimately determined that the woman had objectively breached the contract, it fully considered the degree of fault and ruled that after refunding the advance payment for the purchase, only the additional rent paid by the buyer needed to be compensated, successfully resolving the risk of liquidated damages of approximately 2 million yuan.

Keywords for flipping: degree of breach of contract fault, lifting of execution objection, actual losses, suspension of trial

3. 'Saving the Burning and Investing in Salaries' - Dispute over the Right to Recourse

Due to the increasing number of lawsuits filed by the female party and the worrying economic situation, she is unable to compensate for the judgment amount of the above-mentioned buyer. She has no choice but to split the creditor's rights and debts. The financing guarantee company will first compensate the buyer for a portion of the payment in accordance with the "Guarantee Payment Agreement" signed by the three parties, and then sign a mediation agreement with the female party under the auspices of the court to distribute the creditor's rights and debts. The best way to repay the aforementioned funds as soon as possible is to monetize the assets - by enforcing the auction of Chaoyang House and using the auction proceeds to compensate the buyer and the guarantee company. In this way, the remaining cash can be attributed to the female party as soon as possible, avoiding the pain of lockdown. After the buyer filed for compulsory execution, Lawyer Chen Ci assisted the woman in actively responding, cooperating with the initiation of the auction process, and ultimately successfully auctioned out more than the original selling price, repaying the debts of the buyer and the guarantee company.

But good things come with difficulties. Just as the woman applied to the competent court for the remaining house payment, her ex husband's mother's company filed a creditor's revocation lawsuit in Shanghai against the "Divorce Agreement", applying to freeze 50% of the realized house auction funds.

Keywords for flipping: compulsory execution, house auction, litigation mediation/negotiation, debt and debt distribution

4. 'Jedi Strike Back' - Disputes over Liability for Property Preservation Damage

Counter attack! The woman was not aware of her ex husband's alleged internal family loan and fully trusted the promise of the Divorce Agreement. However, the malicious lockdown application in the first private loan case resulted in the inability to transfer the property, requiring additional debt to the buyer and guarantee company, and was dragged into a lengthy litigation dispute. In order to protect the legitimate rights and interests and make up for the additional litigation costs and liquidated damages, we decided to fight back in accordance with Article 108 of the Civil Procedure Law of the People's Republic of China: "If the application is wrong, the applicant shall compensate the respondent for the losses suffered from the preservation." The case is still pending.

5. A Dispute over the Revocation Right of Creditors

Due to the first civil lending dispute, it was ultimately determined that the ex husband had to bear the loan debt to his mother's company. Therefore, the company seemed to have seen the last straw and attempted to revoke the share transfer behavior in the "Divorce Agreement" on the grounds that the man had evaded the debt and maliciously transferred the Chaoyang house, demanding the so-called maximum benefit, and further maliciously freezing it. In the end, the first instance court accepted our defense opinion and rejected all of its litigation claims. That is, during the original loan dispute period, they were aware of the divorce agreement and have now exceeded the period of revocation right exclusion, and the revocation right is extinguished; A divorce agreement is a comprehensive solution for issues such as dissolution of marriage and division of property, and is not simply a free transfer of property; The company did not exhaust all means of enforcement against the male party, and did not meet the constitutive requirements of the debtor's inability to fulfill the debt causing damage to the creditor. After the second instance trial, the company did not have any new evidence or reasons, and was ultimately forced to withdraw its appeal. This case also achieved a comprehensive victory and recently unfrozen the remaining 50% of the house auction price, with the woman finally receiving nearly ten million yuan in payment.

Key words for flipping: revocation period, dishonesty/restriction list, fraudulent behavior, marital status relationship

Notes on Handling Cases

As a dispute resolution lawyer, I deeply feel that every dispute has its own "aura". In fact, not only is this case burdensome with litigation, but many lawsuits/arbitrations are year-round, interconnected, and relentless pursuit. If everything goes smoothly, it is easy to discuss, but it can be discussed and mediated by the court; If the qi is not smooth, then only the law can discuss the judgment, which can be justified, wasted, delayed, or lost.

This series of cases spans the entire epidemic period, and most of the parties involved have also suffered from painful experiences and major misunderstandings. At present, the woman has considered abandoning the lawsuit for the preservation error of freezing 50% of the funds, hoping that after each party assumes their rights and obligations, this will come to an end.

I don't know where I started, but I went deep; Hatred is nowhere to be found, but disappears with a smile!