Recognition of transactions with maternity capital as invalid

There are times when you need to return maternity capital. For example, when a deal in which state aid received from the Pension Fund of the Russian Federation was used fell through, the contract was terminated and the money was returned to the certificate holder. Thus, the purpose for which a certain amount was taken was not achieved, and the funds must be returned back to the fund. Is it possible to return maternity capital? Judicial practice shows that it is not only possible, but also necessary. We will tell you further how the return procedure works.

It is necessary to understand that money can be returned to the Pension Fund only in certain circumstances. At the own request of the applicant, who has changed his mind about using the money for the purpose specified in the application for a certificate, it is impossible to return the capital in order to then use it again (except for the case when it is aimed at forming a pension).

In what situations is it necessary to return maternity capital?

The current legislation of the Russian Federation does not provide for a mechanism for returning MK back to the Pension Fund. Only the court has the right to issue such a ruling. In this case, the judge may decide to transfer funds:

• or to the Pension Fund;
• or family.

So the judge’s decision is difficult to predict; it depends on the presence of various factors. Social assistance in the form of Maternity Capital should be spent in full. If there are unspent funds, representatives of the Pension Fund file an application with the court, demanding their return.

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25 February 2020 16:25

Yes, you can. Families with two or more children, as well as upon the birth of twins (triplets), receive maternity capital for additional social support, which can be used for certain purposes. The owner of the certificate manages the funds of maternity (family) capital by submitting an appropriate application.

After writing an application for the disposal of maternity capital funds, it may be necessary to change the purpose indicated in the application to which the funds will be allocated. For example, the initial application indicated “improving living conditions,” but subsequently the parents decided that it was more important to pay for the child’s education at the university.

In this case, it is necessary to timely submit an application for cancellation of a previously submitted application for the disposal of maternity capital funds.

An application for cancellation can be submitted to the territorial body of the Pension Fund of the Russian Federation, to which the application for disposal was previously submitted, no later than two months from the date of receipt of the application for disposal, if the territorial body of the Pension Fund of the Russian Federation has not yet transferred the funds (part of the funds) of maternity (family) capital in accordance with the application for order (clause 13 of the Rules, approved by Order of the Ministry of Health and Social Development of Russia dated December 26, 2008 No. 779n (hereinafter referred to as Rules No. 779n)).

You can submit an application for cancellation in person or through a representative (clause 13 of Rules No. 779n).

Within five days from the date of receipt of the application for cancellation, the territorial body of the Pension Fund of the Russian Federation sends a notice of cancellation of the application for disposal and returns (at your request) the documents submitted along with the application for disposal.

The notification is sent in a form that makes it possible to confirm the fact and date of sending the notification and documents (for example, by registered mail with notification) (clause 14 of Rules No. 779n).

Almost all happy parents probably know how to receive maternity capital from the Pension Fund. Today we will look at an unusual situation when maternity capital already received from the state has to be returned back. How to properly return maternity capital to the Pension Fund of the Russian Federation - says a lawyer from the Vesti Prava website.

Reasons for returning maternity capital

1. The construction company went bankrupt and was unable to fulfill its contractual obligations. Then the family has the right to seek to receive government assistance again, but only through the court;
2. The capital was invested in the acquisition (construction, completion, purchase) of residential real estate, which had to be sold; Then you need to invest in purchasing another home as soon as possible. The law stipulates exactly how much shares should be transferred to children. After all, the situation in the family may become more complicated, and the parents will file for divorce. Property assets will have to be divided.
3. Parents spent certificate funds for other purposes. Eg:

• on holiday abroad;
• for the purchase of electronics;
• to develop your business;
• to buy a car;
• for other household needs.

Then the maternity capital can be returned to the Pension Fund. Again, solely by court decision. When spouses spend government assistance, they should understand that these funds are intended specifically for their children. The personal needs of parents are not taken into account here.

Grounds for invalidity

The reasons for canceling a transaction with maternity capital vary. The most common:

• non-compliance of housing with legal requirements (for example, dilapidated, unsafe condition);
• loss of the family's right to maternity capital;
• an imaginary transaction using maternity capital - on paper, without the intention of fulfilling the terms of the contract - for example, buying a home from a relative;
• a sham transaction is on paper, but unlike an imaginary one, it does not entail inaction, but covers up another transaction that does not comply with the terms of the contract;
• deception, delusion.

Since, by law, certificate funds can be used to improve housing conditions (), the courts consider the list of transactions for which this is possible to be open. Accordingly, the list in which cases a transaction for maternity capital is canceled cannot be exhaustive.

Recommended article: Certificate of maternity capital for a mortgage - ways to obtain it

Difficulties arising when returning maternity capital to the Pension Fund of Russia

The property was purchased under a mortgage agreement.
The funds could also be used to pay off mortgage debt. Then the Maternal Capital funds used for these purposes are not subject to return. A loan agreement was concluded, documents for residential real estate were drawn up, and registration was carried out in the Unified State Register of Real Estate. But the owner of the property has not yet become the full owner. First, he must fulfill his financial obligations and pay the creditor in full.

Under what conditions is maternity capital returned?

1. Persons who have received financial assistance will have to prove to the guardianship authorities that the purchased premises are not suitable for full-time living. Arguments should be supported by facts;
2. The property is for sale (the method of sale does not matter). State duty is paid;
3. The money must be returned to the Pension Fund. After all, they were not actually spent.

There are a lot of obstacles on the way to implementing this complex process.
The use of maternal capital when purchasing a home has the following characteristic feature: each family member becomes a shareholder in the transaction (shareholder). So it is quite difficult to sell such property.

The sale of a mortgaged apartment with an outstanding debt is possible only if the creditor bank gives its consent to this action. Receipts are often included in such lending agreements to ensure that the terms of the main document cannot be terminated early.

The amount of the mortgage loan is usually very large, so it is unlikely that it will be possible to pay off and sell the property in the near future. Housing will completely become family property, most likely when the children grow up, study at universities, and move away.

Legislators have provided for the possibility of protecting maternal capital from its misuse, contrary to the requirements of the law. Matkapital is intended specifically for targeted use of paramount importance, therefore the state. It is prohibited to cash out funds.

Typically, living space is sold by those spouses who intend to divorce. Then they should seek consent to sell real estate property:

• from a lending financial institution;
• from social authorities.

The buyer will complete the transaction using the conditions that will not differ in any way from the previous ones.
And then the maternity capital funds will go to the Pension Fund. The same conditions apply when exchanging housing. The following real estate transactions must be carried out strictly in accordance with laws providing for the right to use capital:

• purchase;
• sale;
• exchange.

In what ways and under what conditions is maternity capital returned to the Pension Fund?

The legislation has not developed a mechanism for returning maternity capital funds back to the Pension Fund. However, in practice, such situations when it is necessary to return money are not rare. Here are the options for returning money to the Pension Fund:

1. The funds have not yet been transferred according to the application. Then it is easiest to repay government aid;
2. It was decided to use maternity capital as pension accruals. Then the previous agreement is terminated one day before the date when the woman retires.

Let’s say it was decided to use the funds from Maternal Capital to educate a child.
Then the remaining part of the maternity capital is cancelled. Remaining funds will not be refunded. Let's say a family bought an apartment. The contract was terminated. Then the development company is obliged to reimburse buyers for all investment contributions to the project. The funds received can only be used to purchase housing or obtain a mortgage. Misuse of funds will result in administrative penalties (usually fines). Maternity capital funds will also be collected from the seller. The certificate holder will no longer be able to count on receiving government assistance again.

If the funds will be used for home repairs or other types of improvement, you should collect all expense invoices in a single package. They will serve as evidence of the legal use of MK.

Return of capital spent on a mortgage

Many fellow citizens are interested in how to return capital to the Pension Fund if the money was invested in a mortgage.
It will no longer be possible to take these funds back. The owner of a mortgaged property cannot freely dispose of this property, that is, donate housing or sell it at his own request. First, you will need to pay off the entire amount of debt. In the meantime, this property remains in the status of collateral, and the creditor bank may simply not agree to a change of owner. The sale of a property at the request of a citizen is allowed only if the following condition is met: it can be proven that the chosen housing is not suitable for living.

How mortgage property is divided after an official divorce

When divorcing, the court takes into account the specific legal interests of both the wife and husband, and their 2 or more children. A lot of controversy often arises in a lawsuit like this. When the mortgage is officially divided, divorced spouses and parents, as well as their youngest and eldest children, are allocated specific property shares in a private house or apartment.

Read also: How to get a divorce certificate?

Parents' shares

During the division of a private house or other mortgaged housing, the acquisition of which was made using maternal capital, the spouses are initially allocated equal property shares.
Such living space is considered common (jointly acquired). As a result, an apartment or private house is divided in the same way as all other joint purchases of a divorced family.

Children's shares

The procedure for registering specific shared ownership for 2 or more children is established in paragraph 4 of Article 10 of Federal Law No. 256 of December 29, 2006. In this situation, an agreement is drawn up, which is certified by a notary.
Such a document is called a notarized obligation to allocate certain shares of maternal capital. Attention! The obligation is often issued to the mother, the owner of the mortgage apartment and the personal certificate.

Sometimes such a document is issued to both parents who own the property. In this situation, the notary is provided with firm guarantees of the allocation of specific property to all children in the future.

What to do if one of the divorced spouses refuses a property share

If one of the divorced spouses officially renounces his specific share in a private house or apartment, such mortgaged property is automatically issued to the divorced wife or husband. However, in this situation, the interests of children are also taken into account. Children's property shares are indicated in the obligation.

If circumstances change and if the former spouse refuses a mortgage, such information must be provided to the court. In this situation, the property share is often returned back.

By agreement of the parties

In a formal divorce, by mutual consent, the former spouses draw up a formal written agreement on the division of a common mortgaged apartment.
However, if at the time of annulment the mortgage has not been repaid, then in this situation they go to court. Attention! If the agreement between the former spouses contains clauses that violate certain terms of the mortgage agreement, then such a document is considered invalid.

In this situation, they go to court and divide the jointly acquired property into specific shares.

The return of maternity capital took place: what are the consequences?

The family has the right to keep the returned funds. They can be used for their intended purpose in the future. In this case, you will need to confirm the legality of the investment of funds by contacting:

• to the guardianship authorities;
• in PF.

Practice shows that such redirection of funds is accompanied by litigation.
And if the intended use of state. funds provided to the family are delayed (for various reasons), they are returned to the Pension Fund. Sometimes people use MSC products for other purposes, that is, illegally. Then administrative responsibility follows. Fines will be charged within the limits of civil law requirements. The amount of the fine is equal to the amount spent illegally.

Then the financial assistance will be canceled, and the decision cannot be reviewed. In other words, in the future the family will not be able to count on the restoration of assistance from the state. A citizen who has already stumbled once has no right to participate in the state. program to provide assistance to families with children.

Mechanism for forced return of funds from MSK

Sometimes the Russian Pension Fund makes a demand for the return of the certificate if misuse of funds issued by the state is confirmed.
That is, in the application for the MSK certificate, some information was indicated, but in reality the money was spent on other purposes. But this is not the only reason to demand a refund of MK funds. The pension fund may use other grounds to return the money:

1. Maternity capital was used to purchase real estate, but the children were not allocated their due share. But according to the law, a certain part of the living space must be registered for children if maternity capital was used when purchasing a home.
2. The purchase and sale agreement was concluded, but this document was declared invalid. The reasons do not matter. The main thing is that such a decision was made by the court.
3. The child studied until he was expelled from the university. Then the fund's money should be returned.
4. The family sold the mortgaged property purchased with MK funds.

But citizens are not particularly eager to return the money. Then they are obliged to do this by a court decision, that is, they are forced. To implement the court decision, considerable funds will have to be allocated from the family budget, so the family usually asks for a deferment (installment plan) so as not to reimburse the certificate in a single payment and in a short time.

Request for deferment (installment plan)

To officially defer payment, you will need to provide the court with the following documents (each in 2 copies):

1. Application for a deferment (installment plan).
2. Developed reimbursement schedule.
3. Documents confirming monthly family income:
   2NDFL certificate (provided by the employer);
4. bank statement on income received from business (deposit account status);
5. confirmation of the accrual of financial assistance issued by the state.
6. Documents from which it follows that the family makes the following mandatory monthly payments:

• for utilities;
• on an existing loan;
• to kindergarten, etc.

It is highly advisable to seek payment in installments until legal proceedings are initiated and bailiffs appear at the house presenting writs of execution.

Is it possible to take out maternity capital again after returning it?

The state may provide assistance again.
When the MSC funds are returned to the Pension Fund, you should submit a second application for the provision of maternity capital. If the application is approved, funding will resume. Again, funds can only be spent on those purposes specified in the law. And sometimes citizens manage to get their maternity capital back only after appealing to a judicial authority. The money returned to the fund is under special state control. control. Often, the circumstances of the return of state aid are not under the control of any party; they can partly be considered force majeure. For example, a family used maternity capital to purchase an apartment, but the seller (developer) behaved in bad faith. Fraudulent actions were discovered only some time after the agreement was signed.

Is it possible to return maternity capital after the bank sells mortgaged housing?

According to paragraph 3 of Art.
7 Federal Law No. 256 of December 29, 2006, maternity capital is used in one of the specific areas that are indicated in this article. If such money is used to pay off a mortgage and for other purposes, it is not returned. There is no such rule in the legislation of the Russian Federation. Read also: Registration of marriage abroad

Funds from maternal capital are not returned back even after the bank sells an apartment or other mortgaged housing. However, in this case, the mortgage amount is reduced, the validity of such trades is checked, etc. As a result, the borrowing spouses, after the bank sells their home, have a certain amount left in their hands.

Inability to reuse MSCs

Government aid has been returned. However, the family will not be able to reuse MSCs in the following cases:

• An application for maternal capital was submitted. The funds were used to pay for university education. But the application indicated one university, but in practice the child studied at another (after transfer);
• Funds have been deposited into the account of the educational institution. After a while the child was expelled. The reason is poor academic performance;
• The purchase and sale transaction was declared fictitious. One option: the house was “sold” (actually donated) by close relatives, who returned the money to the family after paperwork was completed. Including the allegedly spent maternity capital was returned.

In the event that children do not receive part of the quadrature after using the maternity capital, the fund draws up a document from which it follows that the parents are obliged to correct the mistake. Deadlines are set. If parents do not hurry up to eliminate the violation, then they will be notified of their punishment.