Hebei Baoding Intermediate People's Court
Civil Judgment
(22) Ji 6 Min Duan No.526
Appellant (defendant in the original trial): Dong X, male, Han nationality, born on August 31, 1976, living in Baoding City, Hebei Province.
appellee (plaintiff in the original trial): Ping An Pratt & Whitney; Whitney Financing Guarantee Co., Ltd. lives in Units B and C, 13th Floor, Asia Pacific Business Building, Hanzhong Road, Nanjing, Jiangsu Province.
legal representative: Yong Zhu, general manager of the company.
Authorized Agent: Zhang Yunxia and Li Jianhong, lawyers of Hebei Wayne Law Firm.
Appellant Dong Yin had a dispute over the right of recourse with Appellee Ping An Pratt & Whitney Company. Whitney Financing Guarantee Co., Ltd. refused to accept the civil judgment of the People's Court of Jingxiu District, Baoding City, Hebei Province (22) No.155 at the beginning of the Republic of China, and appealed to our court. After the case was filed on October 22, 22, a collegial panel was formed according to law to conduct the trial. This case has been closed.
Dong *' s appeal request: 1. Revoke the judgment of first instance, revise the judgment or send it back for retrial according to law; 2. All the litigation expenses of the first and second instance of this case shall be borne by the appellee. Facts and reasons: The signatures on the Loan Contract, the Repayment Plan, the Supplementary Agreement of the Maximum Entrustment Guarantee Contract and the Power of Attorney for Data Transfer and Entrenchment Service on which the judgment of first instance was based were not the appellee's signature, but forged by the appellee. The first-instance judgment found the facts wrong.
ping an financing guarantee co., ltd. replied that, firstly, the respondent submitted many sets of evidence, such as the Credit Agreement, the Maximum Guarantee Contract, the Maximum Guarantee Contract and the Maximum Counter-guarantee Mortgage Contract. The appellant Dong * admitted that the above contract documents had been signed off-line, recognized the basic facts of the loan, and denied the Loan Contract, the Repayment Plan and the Maximum Trust. Second, the appellant Dong X submitted a written application for appraisal in the first instance, but failed to pay the appraisal fee in advance within the time limit specified by the court, and should bear the legal risk of failing to provide evidence; Third, the court should hold that the respondent has submitted authentic materials that can prove the authenticity of electronic contracts and other evidence.
Ping An Financing Guarantee Co., Ltd. brought a lawsuit to the court of first instance:
1. The defendant was ordered to pay compensation of 93,153.72 yuan to the plaintiff (including 9,299.12 yuan for principal, 2,29.28 yuan for interest and 645.32 yuan for liquidated damages);
2. The defendant was ordered to pay the plaintiff a guarantee fee of 2,18.66 yuan;
3. The defendant was ordered to pay the plaintiff a penalty of 1,242.5 yuan (based on the compensation amount from August 8, 219 to August 28, 219, and then based on the compensation amount, calculated at the annual interest rate of 24% until the date when the defendant paid off all the money);
4. request the people's court to make a judgment to confirm that the plaintiff enjoys the priority of compensation for the mortgaged property (located in Baoding, with title certificateNo.: Baoding Property CertificateNo.: Baoding Property CertificateNo.) within the above four creditor's rights. );
5. The defendant is ordered to bear the lawyer's fees that the plaintiff needs to pay 1, yuan;
6. The defendant was ordered to bear all the expenses paid by the plaintiff to realize the creditor's rights, including but not limited to the legal fees, preservation fees, announcement fees and other expenses in this case (above total amount: 16,576.43 yuan).
The court of first instance found the facts: On October 17th, 217, the defendant Dong * signed a contract with Shenzhen Ping An inclusive microcredit Co., Ltd. with the number DY217199796, stipulating that the defendant Dong * as the borrower applied for loan credit from the lender Shenzhen Ping An Microfinance Co., Ltd., with the maximum credit line of 169, yuan. The credit line shall be used from October 17, 217 to October 16, 223. The borrower has the right to require the lender to issue loans according to the contract. If the Borrower fails to get full compensation from the guarantor, the Lender will impose a penalty interest of .1% on the overdue loan principal and interest on a daily basis from the overdue date to the date of payment or compensation.
according to the credit agreement, the defendant should pay a handling fee of 5,7 yuan, and the defendant applied to the lender to directly pay the corresponding part of the loan granted to the defendant to Ping An Pratt & Whitney Information Service Co., Ltd..
On the same day, the plaintiff and the defendant Dong * signed a Loan Contract, stipulating that the defendant Dong * entrusted the plaintiff as a guarantor to provide the lender with joint and several liability guarantee for the loan under the Maximum Entrusted Guarantee Contract and the Credit Agreement.
After performing the guarantee responsibility, the plaintiff has the right to recover from the defendant: (1) All the money compensated by the plaintiff, including but not limited to the principal, interest, penalty interest and penalty interest. (2) All other expenses incurred by the plaintiff to recover and collect the above money, including but not limited to appraisal fees, travel expenses, legal fees, preservation fees, execution fees, attorney fees and notarization fees; After the plaintiff performs the guarantee responsibility, the defendant shall pay the plaintiff a penalty of .1% of the plaintiff's compensation amount every day from the date when the plaintiff obtains compensation to the date when the plaintiff pays all the money.
On the same day, defendant Dong * signed a Loan Contract and a Maximum Counter-guarantee Mortgage Contract with the plaintiff, and defendant Dong * provided counter-guarantee mortgage for the plaintiff's guarantee liability in his name, located at 3-3-52 Shuangcai Community, with the title certificate number: Baoding Fangquanzi No. On October 19, 217, the corresponding mortgage registration was handled at the Real Estate Registration Center of Baoding Land and Resources Bureau. The real estate registration certificate shows that mortgage is the second order.
On the same day, the plaintiff, as the guarantor, signed a Letter of Commitment with the lender Shenzhen Ping An inclusive microcredit Co., Ltd. to provide guarantee for all debts arising from the Maximum Guarantee Contract and its individual loan contract (hereinafter referred to as the "Master Contract"). The guarantee method agreed in the Credit Agreement is joint and several liability guarantee; The scope of guarantee includes the loan principal, interest, penalty interest, liquidated damages, the plaintiff's compensation for debts under the main contract, etc.
both parties agree that when any payables of the defendant are overdue for 8 days; When the matters agreed in this contract happen, the creditor announces that the loan is due in advance, but the defendant fails to pay off the debt within the specified time limit, the plaintiff shall bear the guarantee responsibility to the lender. On October 24th, 217, the plaintiff applied for a loan of 169, yuan from Shenzhen Ping An inclusive microcredit Co., Ltd., and the repayment method was 36 equal principal and interest, with an annual interest rate of 9.2%. It is agreed that the defendant will repay the principal and pay all the interest according to the repayment plan.
on October 19th, 217, Shenzhen ping an inclusive microcredit co., ltd. provided a loan of RMB 163,93 through ping an fu technology service co., ltd. after deducting 3% handling fee.
In addition, the plaintiff and the defendant signed a supplementary agreement to the Maximum Entrusted Guarantee Contract, stipulating that the guarantee fee is 828.1 yuan per month. Defendant Dong * repaid the loan principal of 78,7.88 yuan and paid the guarantee fee of 828.1 yuan every month from November 2, 217 to April 19, 219. However, the defendant still owes the plaintiff a guarantee fee of 2 months and 19 days from May 19, 219 to August 7, 219 by the compensation date of the plaintiff.
on August 19th, 219, the plaintiff fulfilled the guarantee responsibility to Shenzhen Ping An inclusive microcredit Co., Ltd. and compensated the loan, with the compensation amount of 93,153.72 yuan. On August 3, 219, the plaintiff signed the Special Entrustment Contract for Legal Services with Hebei Enwei Law Firm, stipulating that the plaintiff entrusted Hebei Enwei Law Firm to act as the agent of the case that the defendant was told to guarantee the right of recourse, and agreed that the plaintiff would pay 1, yuan in legal fees to Hebei Enwei Law Firm after receiving the notice of filing the case. After that, the defendant told our court to repay the plaintiff's compensation on time.
Hebei enwei law firm issued a special invoice for Hebei value-added tax for the plaintiff. During the trial, the defendant put forward that the signatures on the Loan Contract, Repayment Plan, Maximum Entrusted Guarantee Contract, Supplementary Agreement and Power of Attorney for Data Transfer and Custody Service were not signed by himself, but failed to submit a written application and pay the appraisal fee in advance within the time limit specified by our court.
the court of first instance held that the defendant recognized the fact of borrowing and signed the Credit Agreement and the Maximum Counter-guarantee Mortgage Contract during the trial, which both mentioned that the original defendant and the defendant had signed the Maximum Entrusted Guarantee Contract and that the lender and the plaintiff had signed the Maximum Guarantee Contract. Therefore, the signatures on the Loan Contract, the Repayment Plan, the Maximum Entrusted Guarantee Contract, the Supplementary Agreement and the Power of Attorney for Data Transfer and Custody Service put forward by the defendant were not signed by the defendant himself, which did not affect the validity of these documents and the determination of relevant facts.
The Credit Agreement and Loan Contract signed by the defendant Dong * and Shenzhen Ping An inclusive microcredit Co., Ltd. are the true intentions of both parties, and their contents do not violate the prohibitive provisions of laws and administrative regulations, which are legal and valid contracts. Shenzhen Ping 'an inclusive microcredit Co., Ltd. has fulfilled its lending obligation, and the defendant Dong * should fulfill its repayment obligation according to the contract. The Maximum Counter-guarantee Mortgage Contract signed by the defendant Dong * and the plaintiff is the true intention of both parties, and its contents do not violate the prohibitive provisions of laws and administrative regulations. It is legal and valid, and both parties should perform it in good faith.
Defendant Dong * failed to fulfill the repayment obligations as agreed in the Credit Agreement and the Loan Contract, and the plaintiff fulfilled the guarantee obligations in accordance with the Maximum Guarantee Contract signed with Shenzhen Ping An inclusive microcredit Co., Ltd., and obtained the right to recover from Defendant Dong * according to law. When Shenzhen Ping An inclusive microcredit Co., Ltd. provided the defendant Dong * with a loan, it deducted 3% handling fee of 57 yuan in advance, and actually paid the defendant a loan of 163,93 yuan. The loan principal provided by Shenzhen Ping An Co., Ltd. should be calculated according to 163,93 yuan. Therefore, it is appropriate for the plaintiff to ask the defendant to pay compensation as the unpaid principal of 85,299.12 yuan (loan principal of 163,93 yuan-repaid principal of 78,7.88 yuan).
As the amount claimed by the plaintiff for compensation interest of RMB 2,29.28 and penalty interest of RMB 645.32, our court supports it according to law. The court of first instance supported the plaintiff's claim that the guarantee fee of 218.66 yuan was in line with the contract and did not violate the law.
our court supports the plaintiff's claim for liquidated damages calculated at an annual interest rate of 24%, which is in compliance with the law. The plaintiff's lawyer's fee for realizing the creditor's rights was 1, yuan, which was borne by the defendant, in line with the contract and the amount was reasonable, and the court of first instance supported it. The defendant voluntarily provided the maximum mortgage counter-guarantee for the above debts with the real estate under his name, and registered the mortgage. The plaintiff claimed to have the priority right to compensation for the collateral, which was in line with the law and was supported by the court of first instance.
To sum up, in accordance with Articles 4, 18, 31 and 33 of the Guarantee Law of the People's Republic of China, Article 179 of the Property Law of the People's Republic of China and Article 3 of the Provisions of the Supreme People's Court on Several Issues Concerning the Application of Laws in the Trial of Private Lending Cases, Judgment:
1. Defendant Dong * paid the plaintiff Ping An Pratt & Whitney Financing Guarantee Co., Ltd. compensation of 88,83.72 yuan (including compensation principal of 85,229.12 yuan, compensation interest of 2,29.28 yuan and compensation penalty interest of 645.32 yuan) within 1 days after this judgment came into effect, and paid it from August 8, 219 to the actual settlement based on 88,83.72 yuan.
2. Defendant Dong * paid the plaintiff Ping An Pratt & Whitney Financing Guarantee Co., Ltd. a guarantee fee of 2,18.66 yuan within 1 days after this judgment came into effect;
III. Defendant Dong * paid the plaintiff Ping An Pratt & Whitney Financing Guarantee Co., Ltd. a lawyer's fee of 1, yuan within ten days after this judgment came into effect;
iv. Plaintiff Ping An Pratt & Whitney Financing Guarantee Co., Ltd. enjoys the mortgage right to the property (Property Ownership CertificateNo.: O2141547) located at 3-3-52 of Shuangcai Community, and enjoys the priority of compensation for the proceeds from auction and sale of the property within the above-mentioned first, second and third debts;
v. dismiss other claims of the plaintiff ping an Pratt & Whitney financing guarantee co., ltd. The acceptance fee of the case is 2432 yuan, which is reduced by half to 1216 yuan, and the preservation fee is 152 yuan, which is 2268 yuan, 18 yuan shall be borne by the plaintiff and 216 yuan by the defendant.
during the second trial of our court, the parties submitted evidence according to law around the appeal request, and the appellee submitted evidence 1. Letter of proof from Ping An Pratt & Whitney Enterprise Management Co., Ltd.. It is necessary for Dong to operate and verify the loan contract before binding the bank card; Evidence 2. Notarial certificate, which proves that the loan needs a very strict audit process and the borrower needs to operate before he can borrow money; Evidence 3. The photo taken by the App when Dong * made an online loan on the App proves that the loan was his own operation. The appellant Dong * cross-examined that the authenticity and relevance of the three pieces of evidence were not recognized, and I took the photos because the salesman said that I had to take photos to run the business. Our court confirmed the authenticity of the evidence submitted by the appellee in the second instance. Our court confirms the facts ascertained by the court of first instance.
We believe that the main reason for the appellant's appeal is that the signatures such as Loan Contract and Repayment Plan were not signed by him. However, the appellant's recognition of the fact of receiving the loan, the statement of the agreed interest and the amount of interest repaid in each installment and the evidence and claims submitted by the appellee can mutually confirm.
At the same time, the appellant's signatures on the Credit Agreement, Maximum Entrusted Guarantee Contract, Maximum Counter-guarantee Mortgage Contract and other contracts are all recognized by himself, and the real estate mortgage has been registered.
In the second trial, the third party responsible for App operation issued a letter of proof, confirming that the App loan application needs to be verified by entering the name, ID number, bank card number and mobile phone number reserved by the bank card, and sending the information to the issuing bank for matching. After success, the bank card can be bound, and then the loan amount, installment number and repayment plan can be confirmed, and the loan can be released to the bound bank card.
based on the fact that the appellant recognized the receipt of the loan, the court of first instance found that the authenticity of the loan was not improper. At the same time, due to the appellant's overdue repayment, the appellee made compensation based on the stipulations of the Credit Agreement, the Maximum Entrusted Guarantee Contract and the Maximum Guarantee Contract, which were confirmed by the above contracts, repayment details, compensation amount and other evidence. The appellee's claim for the right of recourse has factual and legal basis, which is supported by the court of first instance and well-founded in law.
to sum up, dong *' s appeal request cannot be established. In accordance with Article 17, Paragraph 1 (1) of the Civil Procedure Law of the People's Republic of China, our court made the following judgment:
The appeal was dismissed and the original judgment was upheld.
the acceptance fee for the second instance case is 2432 yuan, which shall be borne by the appellant Dong *.
this judgment is final.
Li Li, presiding judge
Zheng Dong, presiding judge
Chen Meng, presiding judge
Guo Zizhen, assistant judge
Meng Ruichao, bookkeeper, related questions and answers: related questions and answers: How is the interest of Ping An Pratt & Whitney calculated?
the total interest ÷ the principal and the number of monthly payment periods
can probably get the approximate monthly interest rate.
Ping An Pratt & Whitney's interest rate is generally high,
but it has always been controlled within the red line,
Private lending.