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Given the complexity and peculiarity of disputes arising from credit relations, the holding of a preliminary hearing is necessary.

In its holding the court shall take action to resolve the dispute before trial, and if the dispute is not settled in the procedure established by part three of article 130 code of civil procedure, the court must perform the actions provided by part six of this article.

In particular, the court must determine what relationship arose between the parties and subject to the application of the law in the resolution of the case. Since the court determines what the legal norm applicable to the established facts (paragraph 4 of part one of article 214 of the CPC), the reference of the claimant in the petition for the rule of law that did not apply, by itself, is not grounds for refusal to satisfy the stated requirements.

The right choice of the remedy provided for by law or contract (early recovery of credit, collection of debt, including by foreclosure on the mortgaged property/collateral, the simultaneous presentation of corresponding requirements in case the borrower is a great on behalf of the mortgagor (property guarantor), the simultaneous presentation of claims for recovery of debt from the borrower with the requirements of debt recovery through foreclosure on the collateral/mortgage owned by the mortgagor that is not a borrower, the termination of the credit agreement, the acquisition of title to the mortgaged property, etc.) belongs exclusively to the plaintiff (the first part of article 20 of the CC, article 3 and 4 of the CCP).

The claim of a creditor to foreclose on the mortgage/pledge is not an obstacle for filing a claim for recovery of debt from the guarantor for the same loan contract in the case that during the pendency of the case, the debt on the loan is not repaid.

The claim of the creditor for recovery of debt from the guarantor is not an obstacle to filing a lawsuit to foreclose on the mortgage/pledge to repay the debt on the same loan contract in the case that during the pendency of the dispute the debt on the loan is not repaid.

In the case where the disposition of collateral was required the consent of the mortgagee (part two of article 586 of the civil code), the transaction of the mortgagor for the disposal of the collateral performed without the consent of the pledgee after the conclusion of a collateral agreement cannot be declared invalid at the suit of the mortgagee, since paragraph 2 of article 592 of the civil code establishes another result of the violation by the pledger of rules about the disposal of collateral, namely the claim for early performance of obligations secured with pledge, and also because in the case of a transfer of ownership of the mortgaged property from the mortgagor to another person, the mortgage is valid to the purchaser of the immovable property (article 23 of the law of Ukraine "On mortgage").

However, according to direct instructions of the law (article 12 of the law of Ukraine "On mortgage") single transaction on mortgage of immovable property made without the consent of the mortgagee, may be invalidated under the claim of the mortgagee. So, the transaction on alienation by the mortgagor transferred to the mortgage assets or the mortgage, joint activity, lease, rent, or use without the consent of the mortgagee is void.

The subject of mortgage in accordance with the provisions of part two of article 5 of the law of Ukraine "On mortgage" can act as a real estate, in particular, if its construction is not yet completed, but which will become the property of the mortgagor after the mortgage agreement, provided that the mortgagor at the conclusion of the contract may document right to acquire them in the property of the respective real property in the future, and property rights to immovable property which may be alienated mortgagor and which may be levied.

Under part three of article 5 of the law of Ukraine "On mortgage" part of the immovable property can be mortgaged only after its allocation in kind and registration of ownership as separate property. This provision shall be applied by the court with regard to the content of the second part of article 6 of this Law in respect of immovable property which is in joint ownership. In the case where a separate building is not in joint ownership and registered under one inventory number in other buildings owned by the mortgagor, the Law of Ukraine "On mortgage" does not require such a building in kind to the mortgage contract.

In the case of a transfer of ownership of the mortgaged property from the mortgagor to a third party, including by way of inheritance or succession, courts should consider that the mortgage is valid to the purchaser of the immovable property. The person to whom passed the right of ownership of the mortgaged property, acquires the status of the mortgagor has all the rights and bears all obligations under the mortgage agreement to the same extent and on the same terms that existed prior to the acquisition of the ownership rights to the mortgaged property (article 23 of the law of Ukraine "On mortgage").

However, if the right of ownership to mortgaged property passes to the heir of a natural person, the mortgagor, which is different from the debtor, the heir is not liable to the mortgagee for the execution of the basic obligation, but in the case of a breach by the debtor, he is responsible for meeting the requirements of a mortgagee to the value of the mortgage. If the debtor and the mortgagor are one and the same person, then after her death to the heir to pass not only the rights and obligations of the mortgagor, but also obligations principal obligations within the cost of inherited property.

So, the rules of article 1281 of the civil code concerning the period for filing a creditor of the testator requirements to the heirs are not applied to the obligations secured by the mortgage.

Failure to comply with article 35 of the law of Ukraine "On mortgage" on the despatch of the mortgagor and the debtor, if it is different from the mortgagor, the written requirement about elimination of infringements of the obligation is not an obstacle to the realization of the right of a mortgagee to apply at any time for protection of their violated rights in court (unlike other methods of foreclosure (part three of article 33 of this Law), as the mortgagor in the hearing has an opportunity to object to the requirements of a mortgagee, complying with the provisions of article 124 of the Constitution of Ukraine.

If the mortgagee did not implement the ways of court settlement of the foreclosure on the mortgage, in particular, by signing the agreement to satisfy the requirements of a mortgagee, which would provide for the transfer of mortgagee rights of ownership of the mortgaged property at the expense of performance of the principal obligation (article 37 of the law of Ukraine "On mortgage"), he has the right to appeal to court with a lawsuit to foreclose on the mortgaged property in accordance with article 39 of this Law, and not with a claim for recognition of ownership of immovable property.

The existence of a contract for settlement of foreclosure on the mortgage does not deprive the mortgagee the right of foreclosure on the mortgaged property in court.

 Subject to the provisions of part three of article 33, article 36, article 37 of the law of Ukraine "On mortgage" mortgagee may satisfy a mortgage requirement by acquisition of title to the mortgaged property. The legal basis for registration the right of ownership of a mortgagee of real property that is the subject of the mortgage is the agreement to satisfy the requirements of a mortgagee or the relevant clause in the mortgage agreement, which is equal to such contract for its legal consequences and provides for the transfer of the mortgagee rights of ownership of the mortgaged property on account of execution of the basic obligation.

 In the case where the disposition of collateral was required the consent of the mortgagee (part two of article 586 of the civil code), the transaction of the mortgagor for the disposal of the collateral performed without the consent of the pledgee after the conclusion of a collateral agreement cannot be declared invalid at the suit of the mortgagee, since paragraph 2 of article 592 of the civil code establishes another result of the violation by the pledger of rules about the disposal of collateral, namely the claim for early performance of obligations secured with pledge, and also because in the case of a transfer of ownership of the mortgaged property from the mortgagor to another person, the mortgage is valid to the purchaser of the immovable property (article 23 of the law of Ukraine "On mortgage").

However, according to direct instructions of the law (article 12 of the law of Ukraine "On mortgage") single transaction on mortgage of immovable property made without the consent of the mortgagee, may be invalidated under the claim of the mortgagee. So, the transaction on alienation by the mortgagor transferred to the mortgage assets or the mortgage, joint activity, lease, rent, or use without the consent of the mortgagee is void.