CASE LAW DRAFT NO. 13/2024 On the foreclosure of Mortgaged Property Involving Land with Graves (Please note that this image is not related to the specific case being discussed).

CASE LAW DRAFT NO. 13/2024

On the foreclosure of Mortgaged Property Involving Land with Graves

Approved by the Judges’ Council of the Supreme People’s Court on [date] [month] 2024 and published under Decision No. [number]/QĐ-CA on [date] [month] 2024 by the Chief Justice of the Supreme People’s Court.

Source of the Case Law:

The First-instance Business and Commercial Judgment No. 02/2022/KDTM-ST dated September 23^rd, 2022, of the People’s Court of Duyên Hải Town, Trà Vinh Province, regarding the case of “Credit Contract, Land Use Rights Mortgage Contract Dispute” between the plaintiff C Joint Stock Commercial Bank and the defendant Mrs. Nguyễn Thị Đan N; the interested parties including Mr. Lâm Trung C and Mrs. Nguyễn Thị D.

Location of the Case Law’s Content:

Paragraphs 7 and 8 of the “Court’s Opinion” section.

Summary of the Case Law:

– Factual Background:

One party mortgaged the land use rights, which were lawfully owned, to secure payment obligations under a credit contract. This mortgage included a portion of the land area that contained graves. Subsequently, the borrower failed to meet their payment obligations to the bank. As a result, the bank sought to foreclose on the mortgaged property.

– Legal Resolution:

In this case, the Court must not approve the request to handle the mortgaged property that included the land area with graves, provided that the remaining land area was sufficient to fulfill the debt repayment obligations.

Relevant Legal Provisions:

– Clause 1, Article 7; Article 11; Articles 317, 318 of the Civil Code 2015;

– Article 4 of the Civil Procedure Code 2015.

Keywords:

“Handling of mortgaged property”; “Land with graves”.

CASE DETAILS

According to the lawsuit filed on April 6^th, 2022, by the plaintiff C Joint Stock Commercial Bank and the statements made by the authorized representative of the plaintiff during the proceedings:

On March 17^th, 2021, Mrs. Nguyễn Thị Đan N, the owner of business household B 1, submitted an application to C Joint Stock Commercial Bank – Trà Vinh Branch requesting a loan of VND 7,000,000,000 (Seven billion dong) to supplement the working capital for the aquaculture feed business. The bank agreed to the loan and signed the Loan Agreement No. 63/2021-HĐCVHM/NHCT980 on the same day.

The agreement specified the following terms:

The credit limit was set at VND 7,000,000,000. The duration of the credit limit was 12 months, starting from March 17^th, 2021, and ending on March 17^th, 2022. The loan term was a maximum of 06 months per Promissory Note. The purpose of the loan was to supplement the working capital for the aquaculture feed business.

Regarding interest rates:

– A variable interest rate was applied, with a floating interest rate.

– The in-term interest rate was the rate recorded on each Promissory Note, effective from the disbursement date until adjusted according to the following principle: The in-term interest rate at the contract signing date was 9.0% per annum. This rate was subject to periodic review and adjustment once a month from the disbursement date. On July 27^th, 2021, at Mrs. Nguyễn Thị Đan N’s request, the interest rate was adjusted to 7% per annum.

– The overdue interest rate was applicable if the principal balance was overdue according to Articles 5.2 and 9.2 of the General Terms and Conditions of the Loan Agreement. In such cases, the Borrower was required to pay interest on the overdue principal balance at a rate of 150% of the in-term interest rate agreed upon at the time of the overdue transfer.

– The late payment interest rate applied if the Borrower was six (06) days or more overdue compared to the agreed interest payment date in Point 3.01, Article 3 of this contract. This included cases where the Borrower was allowed by the Lender to restructure the repayment term according to Article 5.1 of the General Terms and Conditions of the Loan Agreement. In these instances, the Borrower had to pay late payment interest at a rate of 10% per annum on the overdue interest balance corresponding to the overdue period.

Interest was payable on the 15th of each month, and principal repayment was according to the schedule stated on each promissory note.

Regarding the secured assets:

To secure the aforementioned loan, Mr. Lâm Trung C and Mrs. Nguyễn Thị D voluntarily provided the following assets:

– Land use rights over an area of 67,346.0m² in Plot No. 904, Map Sheet No. 7, located at T Hamlet, L Commune, D District, Trà Vinh Province. This land is documented in the Certificate of Land Use Rights, House Ownership, and Other Assets Attached to the Land No. CV 749930, issued by the Trà Vinh Department of Natural Resources and Environment on August 28^th, 2020, with the certificate registration number CS06019.

This land was mortgaged to C Joint Stock Commercial Bank – Trà Vinh Branch to secure Mrs. Nguyễn Thị Đan N’s loan under the Land Use Rights Mortgage Contract No. 41/2021/HĐBĐ/NHCT980, dated March 9^th, 2021.

The secured assets also included:

– Land use rights over an area of 378.7m² in Plot No. 71, Map Sheet No. 22, at R Hamlet, N Commune, D District, Trà Vinh Province. This land is documented in the Certificate of Land Use Rights, House Ownership, and Other Assets Attached to the Land No. CP 253480, issued by the Trà Vinh Department of Natural Resources and Environment on December 25^th, 2018, with the certificate registration number CS08741.

– Land use rights over an area of 251.1m² in Plot No. 81, Map Sheet No. 22, at R Hamlet, N Commune, D District, Trà Vinh Province. This land is documented in the Certificate of Land Use Rights, House Ownership, and Other Assets Attached to the Land No. CP 253482, issued by the Trà Vinh Department of Natural Resources and Environment on December 25^th, 2018, with the certificate registration number CS08737.

– Land use rights over an area of 177.1m² in Plot No. 83, Map Sheet No. 22, at R Hamlet, N Commune, D District, Trà Vinh Province. This land is documented in the Certificate of Land Use Rights, House Ownership, and Other Assets Attached to the Land No. CP 253479, issued by the Trà Vinh Department of Natural Resources and Environment on December 25^th, 2018, with the certificate registration number CS08736.

– Land use rights over an area of 1,386.1m² in Plot No. 84, Map Sheet No. 22, at R Hamlet, N Commune, D District, Trà Vinh Province. This land is documented in the Certificate of Land Use Rights, House Ownership, and Other Assets Attached to the Land No. CP 253477, issued by the Trà Vinh Department of Natural Resources and Environment on December 25^th, 2018, with the certificate registration number CS08740.

– Land use rights over an area of 37.1m² in Plot No. 212, Map Sheet No. 22, at R Hamlet, N Commune, D District, Trà Vinh Province. This land is documented in the Certificate of Land Use Rights, House Ownership, and Other Assets Attached to the Land No. CP 253481, issued by the Trà Vinh Department of Natural Resources and Environment on December 25^th, 2018, with the certificate registration number CS08739.

These assets were mortgaged to C Joint Stock Commercial Bank – Trà Vinh Branch to secure Mrs. Nguyễn Thị Đan N’s loan under the Land Use Rights Mortgage Contract No. 43/2021/HĐBĐ/NHCT980, dated March 9^th, 2021.

When the debt became due, Mrs. Nguyễn Thị Đan N failed to meet her repayment obligations according to the schedule outlined in the promissory note and the signed Loan Agreement. C Joint Stock Commercial Bank – Trà Vinh Branch took various measures to recover the debt, including frequent visits to the customer’s home to urge repayment and having her sign debt repayment commitments. Despite these efforts, as of the present date, she has not fully repaid the bank.

As of September 23th, 2022, Mrs. Nguyễn Thị Đan N owed C Joint Stock Commercial Bank – Trà Vinh Branch VND 4,890,905,046. This total includes:

– Principal: VND 4,297,400,000.

– Interest: VND 593,505,046, which is further broken down into:

  – In-term interest: VND 432,506,471.

  – Overdue interest: VND 160,998,575.

During the court session, Mr. Nguyễn Thế H, the authorized representative of the plaintiff, requested that the Court:

1. Compel Mrs. Nguyễn Thị Đan N to repay the total amount owed, which includes the principal, in-term interest, and overdue interest, amounting to VND 4,890,905,046 as of September 23^rd, 2022. This amount includes:

   – Principal: VND 4,297,400,000.

   – Interest: VND 593,505,046, which includes:

     – In-term interest: VND 432,506,471.

     – Overdue interest: VND 160,998,575.

2. In the event that Mrs. Nguyễn Thị Đan N is unable to repay the debt, the Court is requested to permit the bank to auction the mortgaged property of Mr. Lâm Trung C and Mrs. Nguyễn Thị D to recover the debt in accordance with the law, as agreed in Land Use Rights Mortgage Contract No. 41/2021/HĐBĐ/NHCT980 dated March 9^th, 2021, and Land Use Rights Mortgage Contract No. 43/2021/HĐBĐ/NHCT980 dated March 9^th, 2021.
3. Compel Mrs. Nguyễn Thị Đan N to continue paying interest from September 24^th, 2022, until the debt is fully repaid to the bank under the terms of the signed credit contract.

According to the written statement dated August 9^th, 2022, the defendant Mrs. Nguyễn Thị Đan N stated:

Previously, Mrs. Nguyễn Thị Đan N entered into a loan contract with C Joint Stock Commercial Bank – Trà Vinh Branch for VND 7,000,000,000. To secure this loan, her parents-in-law, Mr. Lâm Trung C and Mrs. Nguyễn Thị D, mortgaged the following assets:

– Land use rights over Plot No. 904, Map Sheet No. 7, with an area of 67,346m². The Certificate of Land Use Rights, House Ownership, and Other Assets Attached to the Land is in the name of Mr. Lâm Trung C. This land is located at T Hamlet, L Commune, D District, Trà Vinh Province.

– Land use rights over Plot No. 71, Map Sheet No. 22, with an area of 378.7m². The Certificate of Land Use Rights, House Ownership, and Other Assets Attached to the Land is in the name of Mr. Lâm Trung C. This land is located at R Hamlet, N Commune, D District, Trà Vinh Province.

– Land use rights over Plot No. 81, Map Sheet No. 22, with an area of 251.1m². The Certificate of Land Use Rights, House Ownership, and Other Assets Attached to the Land is in the name of Mr. Lâm Trung C. This land is located at R Hamlet, N Commune, D District, Trà Vinh Province.

– Land use rights over Plot No. 83, Map Sheet No. 22, with an area of 177.1m². The Certificate of Land Use Rights, House Ownership, and Other Assets Attached to the Land is in the name of Mr. Lâm Trung C. This land is located at R Hamlet, N Commune, D District, Trà Vinh Province.

– Land use rights over Plot No. 84, Map Sheet No. 22, with an area of 1,386.1m². The Certificate of Land Use Rights, House Ownership, and Other Assets Attached to the Land is in the name of Mr. Lâm Trung C. This land is located at R Hamlet, N Commune, D District, Trà Vinh Province.

– Land use rights over Plot No. 212, Map Sheet No. 22, with an area of 37.1m². The Certificate of Land Use Rights, House Ownership, and Other Assets Attached to the Land is in the name of Mr. Lâm Trung C. This land is located at R Hamlet, N Commune, D District, Trà Vinh Province.

Due to current economic difficulties, Mrs. Nguyễn Thị Đan N is unable to repay the outstanding debt to the bank. With the bank having filed a lawsuit, she agrees to repay the remaining debt as requested. In the event she cannot repay the debt, she consents to allow the bank to auction the mortgaged assets provided by Mr. Lâm Trung C and Mrs. Nguyễn Thị D to recover the loan.

The results of the on-site inspection of the collateral by the Court are as follows:

Plot 904, Map Sheet No. 7, as per the Certificate of Land Use Rights, House Ownership, and Other Assets Attached to the Land issued under the name of Mr. Lâm Trung C, measures 67,346m² in actual survey. The land is located at T Hamlet, L Commune, D District, Trà Vinh Province.

Plot 71, Map Sheet No. 22, as per the Certificate of Land Use Rights, House Ownership, and Other Assets Attached to the Land issued under the name of Mr. Lâm Trung C, measures 387.7m² in actual survey. The land is located at R Hamlet, N Commune, D District, Trà Vinh Province.

Plot 81, Map Sheet No. 22, as per the Certificate of Land Use Rights, House Ownership, and Other Assets Attached to the Land issued under the name of Mr. Lâm Trung C, measures 251.1m² in actual survey. The land is located at R Hamlet, N Commune, D District, Trà Vinh Province.

Plot 83, Map Sheet No. 22, as per the Certificate of Land Use Rights, House Ownership, and Other Assets Attached to the Land issued under the name of Mr. Lâm Trung C, measures 177.1m² in actual survey. The land is located at R Hamlet, N Commune, D District, Trà Vinh Province.

Plot 84, Map Sheet No. 22, as per the Certificate of Land Use Rights, House Ownership, and Other Assets Attached to the Land issued under the name of Mr. Lâm Trung C, measures 1,386.1m² in actual survey, with a portion of the land in the cemetery area measuring 360.6m². The land is located at R Hamlet, N Commune, D District, Trà Vinh Province.

Plot 212, Map Sheet No. 22, as per the Certificate of Land Use Rights, House Ownership, and Other Assets Attached to the Land issued under the name of Mr. Lâm Trung C, measures 37.1m² in actual survey. The land is located at R Hamlet, N Commune, D District, Trà Vinh Province.

Regarding assets on the land:

– At Plot 84, Map Sheet No. 22, there is a mausoleum containing four graves of Mr. Lâm Trung C’s relatives.

– At Plot 212, Map Sheet No. 22, there is a mausoleum containing one grave of Mr. Lâm Trung C’s relative.

The Procurator made the following comments at the court session:

Regarding procedural compliance:

– The Judge has adhered to the legal regulations throughout the examination of the case.

– The court clerk and the Trial Panel present at the court have followed the procedures stipulated in the Civil Procedure Code.

– As for the participants in the proceedings, the defendant, Mrs. Nguyễn Thị Đan N, has exercised her procedural rights and obligations as per the Civil Procedure Code. However, other interested parties have not fully complied with their procedural rights and obligations according to the Civil Procedure Code.

Regarding the merit of the case:

– It is proposed to accept the plaintiff’s request to compel Mrs. Nguyễn Thị Đan N to repay the remaining debt, including the principal, in-term interest, overdue interest, and accrued interest.

– It is proposed to accept the plaintiff’s request to handle the collateral assets, including:

  – The land use rights for Plot No. 904, Map Sheet No. 7, which measures 67,346m². The Certificate of Land Use Rights, House Ownership, and Other Assets Attached to the Land is issued in the name of Mr. Lâm Trung C. This land is located at T Hamlet, L Commune, D District, Trà Vinh Province.

  – The land use rights for Plot No. 71, Map Sheet No. 22, which measures 387.7m². The Certificate of Land Use Rights, House Ownership, and Other Assets Attached to the Land is issued in the name of Mr. Lâm Trung C. This land is located at R Hamlet, N Commune, D District, Trà Vinh Province.

  – The land use rights for Plot No. 81, Map Sheet No. 22, which measures 251.1m². The Certificate of Land Use Rights, House Ownership, and Other Assets Attached to the Land is issued in the name of Mr. Lâm Trung C. This land is located at R Hamlet, N Commune, D District, Trà Vinh Province.

  – The land use rights for Plot No. 83, Map Sheet No. 22, which measures 177.1m². The Certificate of Land Use Rights, House Ownership, and Other Assets Attached to the Land is issued in the name of Mr. Lâm Trung C. This land is located at R Hamlet, N Commune, D District, Trà Vinh Province.

  – Regarding the land use rights for Plot No. 84, Map Sheet No. 22, which measures 1,386.1m². The Certificate of Land Use Rights, House Ownership, and Other Assets Attached to the Land is issued in the name of Mr. Lâm Trung C. This land is located at R Hamlet, N Commune, D District, Trà Vinh Province. It is proposed to accept only part of the plaintiff’s request for the actual area of 1,025.5m². The remaining area of 360.6m², being a cemetery area, is proposed to be excluded.

  – The land use rights for Plot No. 212, Map Sheet No. 22, which measures 37.1m². The Certificate of Land Use Rights, House Ownership, and Other Assets Attached to the Land is issued in the name of Mr. Lâm Trung C. This land is located at R Hamlet, N Commune, D District, Trà Vinh Province. It is proposed to reject the request as the entire area of 37.1m² is a mausoleum containing a grave of Mr. C’s relative.

– Regarding court fees and litigation costs, it is proposed to resolve according to the law.

– There are no recommendations for remedial measures.

COURT’S OPINION:

[1] Regarding the legal relationship in dispute: C Joint Stock Commercial Bank filed a lawsuit requesting Mrs. Nguyễn Thị Đan N, as the owner of the business household, to repay the outstanding loan under the signed credit contract. This loan was intended to supplement the capital for the aquaculture feed business. Consequently, the Court finds that this is a business and commercial dispute within its jurisdiction.

[2] Regarding the jurisdiction to resolve the case: The defendant, Mrs. Nguyễn Thị Đan N, resides at Phước Trị Hamlet, District 1, Duyên Hải Town, Trà Vinh Province. According to point b, clause 1, Article 35, and point a, clause 1, Article 39 of the Civil Procedure Code, the People’s Court of Duyên Hải Town, Trà Vinh Province, has the jurisdiction to resolve this case.

[3] Regarding the absence of the interested parties: Mr. Lâm Trung C and Mrs. Nguyễn Thị D were duly summoned by the Court but did not submit requests for a trial in absentia and were not excused due to objective obstacles or force majeure events. Therefore, the Court, in accordance with Articles 227 and 228 of the 2015 Civil Procedure Code, proceeds to try the case in the absence of these parties.

[4] Regarding evidence: The absent and present parties did not provide additional documents or evidence, nor did they request the Court to verify, take witness testimonies, or summon further individuals. As a result, the Trial Panel will base its judgment on the documents and evidence already in the case file, which were reviewed at the trial, as well as the results of the cross-examination during the trial.

[5] Regarding the plaintiff’s request: Based on the Loan Agreement No. 63/2021-HĐCVHM/NHCT980 dated March 17^th, 2021, between Mrs. Nguyễn Thị Đan N and C Joint Stock Commercial Bank – Trà Vinh Branch, Mrs. Nguyễn Thị Đan N owed the bank, as of April 6, 2022, the principal amount of VND 4,297,400,000 and interest of VND 347,219,581.

This constitutes a breach of the repayment obligation under the credit contract. C Joint Stock Commercial Bank’s request for Mrs. Nguyễn Thị Đan N to repay the remaining debt, including both principal and interest, is in accordance with the lender’s rights. Mrs. Nguyễn Thị Đan N is obligated to repay C Joint Stock Commercial Bank in accordance with the credit contract and applicable legal provisions.

As of the trial date, September 23^rd, 2022, Mrs. Nguyễn Thị Đan N still owed C Joint Stock Commercial Bank the following amounts: principal loan of VND 4,297,400,000; interest within the term of VND 432,506,471; and overdue interest of VND 160,998,575.

[6] Regarding the accrued overdue interest: In accordance with Clause 2, Article 91, and Clause 2, Article 95 of the 2010 Law on Credit Institutions, there are sufficient grounds to require Mrs. Nguyễn Thị Đan N to continue paying C Joint Stock Commercial Bank the overdue interest on the unpaid principal amount at the agreed interest rate until the principal debt is fully settled from September 24^th, 2022. The interest rate will also be subject to adjustments in line with changes in the interest rate of C Joint Stock Commercial Bank.

[7] Regarding the plaintiff’s request for handling the collateral: Under the Land Use Rights Mortgage Contract No. 41/2021/HĐBĐ/NHCT980 and Land Use Rights Mortgage Contract No. 43/2021/HĐBĐ/NHCT980, both dated March 9^th, 2021, Mr. Lâm Trung C and Mrs. Nguyễn Thị D agreed to mortgage the land use rights of six plots of land under Mr. Lâm Trung C’s name to guarantee the loan for Mrs. Nguyễn Thị Đan N.

[8] According to the contract, should Mrs. Nguyễn Thị Đan N fail to repay or not fully repay the loan within the scope of the guarantee, C Joint Stock Commercial Bank has the right to request the competent authority to auction the mortgaged land use rights provided by Mr. Lâm Trung C and Mrs. Nguyễn Thị D as security for Mrs. Nguyễn Thị Đan N’s loan.

This right is in accordance with the contract and relevant legal provisions. However, concerning the plaintiff’s request to handle the collateral at Plots 84 and 212, Map Sheet No. 22, the Trial Panel observes that Plot 84 includes a cemetery area with four graves of Mr. C’s relatives, measuring 360.6m², and Plot 212 consists entirely of a mausoleum measuring 37.1m² with one grave of Mr. C’s relative.

Although the law does not prohibit the plaintiff from requesting the handling of collateral related to cemeteries, in alignment with Vietnamese customs and the humanitarian spirit of Vietnamese law, the Trial Panel decides not to accept the request to handle the collateral for the land use rights of 360.6m² out of the total 1,386.1m² of Plot 84, Map Sheet No. 22, and the 37.1m² of Plot 212, Map Sheet No. 22, as per the Certificate of Land Use Rights, House Ownership, and Other Assets Attached to the Land issued under the name of Mr. Lâm Trung C.

This land is located at R Hamlet, N Commune, D District, Trà Vinh Province. Additionally, even without including the cemetery land at Plots 84 and 212 in the collateral, the remaining land use rights are still adequate to meet the debt repayment obligation to the bank.

[9] From the above analysis, the Trial Panel partially accepts the request to handle the collateral as proposed by the Procurator at the trial.

[10] Regarding court fees, Clause 2, Article 26 of Resolution No. 326/2016/UBTVQH14 dated December 30, 2016, of the Standing Committee of the National Assembly on court fees and charges stipulates that “The defendant must bear all first-instance civil court fees in case the entire plaintiff’s request is accepted by the Court.” Since the Court has fully accepted the plaintiff’s request, the defendant, Mrs. Nguyễn Thị Đan N, is required to pay the first-instance business and commercial court fee of VND 112,890,905.

[11] The plaintiff, C Joint Stock Commercial Bank, is not required to pay court fees and is entitled to a refund of the advance court fee amounting to VND 56,322,309. This refund is based on receipt number 0008360 dated July 26, 2022, issued by the Duyên Hải District Civil Judgment Enforcement Department.

[12] Regarding the costs of on-site inspection, as the parties did not reach an agreement on these costs, and according to Clause 1, Article 157 of the Civil Procedure Code, the defendant, Mrs. Nguyễn Thị Đan N, is responsible for the costs incurred by the Court for the on-site inspection, totaling VND 2,197,691. Additionally, C Joint Stock Commercial Bank is entitled to a refund of the advance costs of on-site inspection amounting to VND 10,000,000.

This refund includes VND 7,802,309 refunded by the People’s Court of Duyên Hải District and the remaining VND 2,197,691 to be refunded after Mrs. Nguyễn Thị Đan N pays the on-site inspection costs during the enforcement phase.

In light of the foregoing,

IT IS DECIDED:

Pursuant to Clauses 1, Article 30; Point b, Clause 1, Article 35; Point a, Clause 1, Article 39; Clause 4, Article 147; Clause 1, Article 157; Articles 227, 228, and 244 of the 2015 Civil Procedure Code;

Pursuant to Clause 2, Article 91; Clause 2, Article 95 of the 2010 Law on Credit Institutions; and

Pursuant to Article 26 of Resolution No. 326/2016/UBTVQH14 dated December 30^th, 2016, of the Standing Committee of the National Assembly on court fees and charges:

1. The plaintiff’s claim of C Joint Stock Commercial Bank is accepted. Mrs. Nguyễn Thị Đan N is required to repay C Joint Stock Commercial Bank the remaining debt as of September 23^rd, 2022. This includes the principal loan amounting to VND 4,297,400,000; in-term interest totaling VND 432,506,471; and overdue interest amounting to VND 160,998,575.
2. From September 24^th, 2022, Mrs. Nguyễn Thị Đan N must continue to pay overdue interest on the unpaid principal amount at the agreed interest rate specified in Loan Agreement No. 63/2021-HĐCVHM/NHCT980 dated March 17^th, 2021, between Mrs. Nguyễn Thị Đan N and C Joint Stock Commercial Bank – Trà Vinh Branch, until the principal debt is fully repaid. If the credit contract includes provisions for adjusting the loan interest rate based on the lending bank’s rate changes, the interest rate Mrs. Nguyễn Thị Đan N must pay to the lending bank, as decided by the Court, will also be adjusted accordingly to reflect any changes in the interest rate of C Joint Stock Commercial Bank.

In the event that Mrs. Nguyễn Thị Đan N fails to fulfill or fully meet her repayment obligations to C Joint Stock Commercial Bank, C Joint Stock Commercial Bank retains the right to request the competent civil judgment enforcement authority to auction the collateral in order to recover the debt. The collateral includes the following land use rights:

– Plot 904, Map Sheet No. 7: This plot, registered under the name of Mr. Lâm Trung C, measures 67,346m² according to the Certificate of Land Use Rights, House Ownership, and Other Assets Attached to the Land. The land is located at T Hamlet, L Commune, D District, Trà Vinh Province. The dimensions and boundaries of the 67,346m² of land in Plot 904, Map Sheet No. 7, are as specified in the aforementioned certificate.

– Plot 71, Map Sheet No. 22: Registered under the name of Mr. Lâm Trung C, this plot has an actual measurement of 378.7m². The land is situated at R Hamlet, N Commune, D District, Trà Vinh Province. The dimensions and boundaries of the 378.7m² of land in Plot 71, Map Sheet No. 22, are detailed in the corresponding certificate.

– Plot 81, Map Sheet No. 22: This plot, also under the name of Mr. Lâm Trung C, measures 251.1m². The land is located at R Hamlet, N Commune, D District, Trà Vinh Province. The dimensions and boundaries of the 251.1m² of land in Plot 81, Map Sheet No. 22, are as outlined in the certificate.

– Plot 83, Map Sheet No. 22: Registered under Mr. Lâm Trung C’s name, this plot has an actual area of 177.1m². It is located at R Hamlet, N Commune, D District, Trà Vinh Province. The dimensions and boundaries of the 177.1m² of land in Plot 83, Map Sheet No. 22, are provided in the land use rights certificate.

– Plot 84, Map Sheet No. 22: According to the Certificate of Land Use Rights, House Ownership, and Other Assets Attached to the Land, this plot under the name of Mr. Lâm Trung C measures 1,025.5m² out of a total area of 1,386.1m².

The land is situated at R Hamlet, N Commune, D District, Trà Vinh Province. The dimensions and boundaries of the 1,025.5m² of land out of the total 1,386.1m² in Plot 84, Map Sheet No. 22, are illustrated in the Land Plot Diagram attached to Dispatch No. 387/CV-CNHDH dated September 22^nd, 2022, of the Duyên Hải District Branch of the Land Registration Office, Trà Vinh Province, which is attached to the judgment.

2. The Court partially rejects the plaintiff’s request to handle the collateral regarding the land use rights for the following:

– An area of 360.6m² out of a total of 1,386.1m² in Plot 84, Map Sheet No. 22. This plot is registered under the name of Mr. Lâm Trung C and is located at R Hamlet, N Commune, D District, Trà Vinh Province.

The dimensions and boundaries of the 360.6m² of land out of the total 1,386.1m² in Plot 84, Map Sheet No. 22, are detailed in the Land Plot Diagram attached to Official Letter No. 387/CV-CNHDH dated September 22^nd, 2022, from the Duyên Hải District Branch of the Land Registration Office, Trà Vinh Province (attached to the Judgment).

– Plot 212, Map Sheet No. 22, which, according to the Certificate of Land Use Rights, House Ownership, and Other Assets Attached to the Land under the name of Mr. Lâm Trung C, has an actual measured area of 37.1m². The land is located in R Hamlet, N Commune, D District, Trà Vinh Province.

The dimensions and boundaries of the 37.1m² land area in Plot 212, Map Sheet No. 22, are indicated in the Land Plot Diagram attached to Dispatch No. 387/CV-CNHDH dated September 22^nd, 2022, from the Duyên Hải District Branch of the Land Registration Office, Trà Vinh Province (attached to the Judgment).

3. Court Fees:

– Mrs. Nguyễn Thị Đan N is required to pay the first-instance business and commercial court fee amounting to VND 112,890,905.

– The C Joint Stock Commercial Bank is not required to pay the first-instance civil court fee. The advance court fee of VND 56,322,309 paid by the C Joint Stock Commercial Bank will be refunded according to receipt No. 0008360 dated July 26, 2022, issued by the Civil Judgment Enforcement Department of Duyên Hải Town.

Regarding the cost of on-site inspection:

– Mrs. Nguyễn Thị Đan N is required to cover the on-site inspection cost of VND 2,197,691.

– The C Joint Stock Commercial Bank is entitled to a refund of the temporary on-site inspection cost advance amounting to VND 10,000,000, which includes VND 7,802,309 refunded by the People’s Court of Duyên Hải Town and the remaining VND 2,197,691 after Mrs. Nguyễn Thị Đan N pays the on-site inspection cost during the enforcement phase.

The plaintiff, C Joint Stock Commercial Bank, has the right to appeal the judgment within 15 days from the date of pronouncement. The defendant, Mrs. Nguyễn Thị Đan N, and the interested parties, including Mr. Lâm Trung C and Mrs. Nguyễn Thị D, who were absent from the trial, also have the right to appeal the judgment within 15 days from the date of receiving the judgment or from the date the judgment is publicly posted, in accordance with the Civil Procedure Code of 2015.

If the judgment is enforced according to the provisions of Article 2 of the Law on Civil Judgment Enforcement, both the judgment creditor and judgment debtor may agree on the enforcement of the judgment, request enforcement, voluntarily enforce the judgment, or be coerced into enforcement as per Articles 6, 7, 7a, 7b, and 9 of the Law on Civil Judgment Enforcement. The statute of limitations for judgment enforcement is governed by Article 30 of the Law on Civil Judgment Enforcement.

CONTENT OF THE CASE LAW:

“[7] Regarding the plaintiff’s request for handling the collateral: Under the Land Use Rights Mortgage Contract No. 41/2021/HĐBĐ/NHCT980 and Land Use Rights Mortgage Contract No. 43/2021/HĐBĐ/NHCT980, both dated March 9^th, 2021, Mr. Lâm Trung C and Mrs. Nguyễn Thị D agreed to mortgage the land use rights of six plots of land under Mr. Lâm Trung C’s name to guarantee the loan for Mrs. Nguyễn Thị Đan N.

[8] According to the contract, should Mrs. Nguyễn Thị Đan N fail to repay or not fully repay the loan within the scope of the guarantee, C Joint Stock Commercial Bank has the right to request the competent authority to auction the mortgaged land use rights provided by Mr. Lâm Trung C and Mrs. Nguyễn Thị D as security for Mrs. Nguyễn Thị Đan N’s loan.

This right is in accordance with the contract and relevant legal provisions. However, concerning the plaintiff’s request to handle the collateral at Plots 84 and 212, Map Sheet No. 22, the Trial Panel observes that Plot 84 includes a cemetery area with four graves of Mr. C’s relatives, measuring 360.6m², and Plot 212 consists entirely of a mausoleum measuring 37.1m² with one grave of Mr. C’s relative.

Although the law does not prohibit the plaintiff from requesting the handling of collateral related to cemeteries, in alignment with Vietnamese customs and the humanitarian spirit of Vietnamese law, the Trial Panel decides not to accept the request to handle the collateral for the land use rights of 360.6m² out of the total 1,386.1m² of Plot 84, Map Sheet No. 22, and the 37.1m² of Plot 212, Map Sheet No. 22, as per the Certificate of Land Use Rights, House Ownership, and Other Assets Attached to the Land issued under the name of Mr. Lâm Trung C.

This land is located at R Hamlet, N Commune, D District, Trà Vinh Province. Additionally, even without including the cemetery land at Plots 84 and 212 in the collateral, the remaining land use rights are still adequate to meet the debt repayment obligation to the bank.”

THE RATIONALE FOR THE CASE LAW DRAFT’S PROPOSAL

The purpose of a mortgage contract for land use rights is to secure the borrower’s obligations under the credit contract. In the event of a breach of payment obligations by the borrower, the bank is entitled to request the auction of the mortgaged property.

However, in practice, there are instances where the mortgaged property includes land with graves of the mortgagee’s relatives. During the bank’s inspection and assessment of the mortgaged property, the presence of graves is noted, and the mortgagor consents to include these areas in the mortgage. Nonetheless, if the borrower defaults and the bank seeks to dispose of the mortgaged property, disputes can arise over the refusal to auction land that contains graves.

In the judgment referenced, the Trial Panel resolved not to auction land areas containing graves if the remaining land is sufficient to fulfill the debt repayment obligation. This resolution aligns with the State’s policy on civil relations as outlined in Article 7 of the Civil Code of 2015 and is consistent with the provision on the right to request court protection for legal rights and interests under Article 4 of the Civil Procedure Code of 2015.

The establishment of this precedent provides guiding value for the consistent application of the law by courts in similar cases. It also serves as a cautionary note for banks to carefully inspect and assess mortgaged properties for any land areas containing graves to avoid disputes during the disposal of mortgaged assets.

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