Thông tư liên tịch 02/2002/TTLT/NHNN-BTP

JOINT CIRCULAR

GUIDING THE IMPLEMENTATION OF THE PRIME MINISTER'S DECISION No. 149/2001/QD-TTg OF OCTOBER 5, 2001 ON THE PROCEDURES FOR THE SALE OF SECURITY PROPERTIES AS WELL AS THE NOTARIZATION AND AUTHENTICATION OF DOCUMENTS ON THE SALE AND HAND-OVER OF PROPERTIES TO COMMERCIAL BANKS UNDER COURTS' JUDGMENTS AND/OR RULINGS

Pursuant to Clause 2 and Clause 4, Article 3 of the Prime Minister's Decision No. 149/2001/QD-TTg of October 5, 2001 approving the Scheme on the handling of commercial banks’ outstanding debts (hereinafter called Decision No. 149/2001/QD-TTg);
In order to implement the Scheme on the handling of commercial banks’ outstanding debts already approved by the Prime Minister, thus creating conditions for the banks to handle security properties for outstanding debts in a public, prompt and lawful manner, Vietnam State Bank and the Ministry of Justice hereby jointly guide the implementation of the procedures for the sale of security properties as well as the notarization and authentication of documents on the sale and hand-over of the properties to commercial banks under courts’ judgments and/or rulings as follows:

I. SCOPE OF APPLICATION

1. This Circular shall apply to the handling of security properties according to various forms of selling security properties prescribed at Point 3.1.a, Clause 3, Article 1 of Decision No. 149/2001/QD-TTg for outstanding debts with security properties owed to commercial banks by December 31, 2000.

2. Security properties for outstanding debts allowed to be sold under the guidance in this Circular, including the properties being the land use right and assets affixed to land, are:

a) Security properties which are handed over to commercial banks by courts under their effective judgments and/or rulings;

b) Pledged and mortgaged properties which fall under the commercial banks’ disposing competence, are not involved in any disputes being settled by competent State agencies and have the following papers:

- Contracts on property pledge and/or mortgage (whether or not notarized or authenticated);

- Certificates of rights to own or use the properties or other valid substitute papers.

The valid substitute papers may be those prescribed at Point 2, Clause 3, Article 1 of the Government’s Decree No. 79/2001/ND-CP of November 1, 2001 amending and supplementing a number of articles of the Government’s Decree No. 17/1999/ND-CP of March 29, 1999 on the procedures for the exchange, transfer, lease, sublease and inheritance of the land use right as well as the mortgage of and capital contribution with the land use right value or papers evidencing the rights to own or to use the properties such as: contracts on the sale and purchase, presentation, donation, transfer, enclosed with original papers on the properties; sale and purchase invoices as stipulated by the Ministry of Finance; vouchers on the payment for goods purchase; documents on the hand-over of the properties by competent State agencies, for State enterprises; record on the project pre-acceptance test; and other valid papers (if any).

3. The sale of commercial banks’ security properties prescribed in Clause 1 and Point a, Clause 2, Article 34 of the Government’s Decree No. 178/1999/ND-CP of December 29, 1999 on credit institutions’ loan security shall not comply with the procedures for the sale of security properties prescribed in Section II of this Circular.

II. PROCEDURES FOR THE SALE OF SECURITY PROPERTIES UNDER THE PROVISIONS AT POINT 3.1.a, CLAUSE 3, ARTICLE 1 OF DECISION No. 149/2001/QD-TTg

1. Commercial banks, their debt management and property exploitation companies as well as authorized branches (hereinafter referred collectively to as commercial banks and debt management companies) shall be allowed to take initiative in selecting the forms of selling security properties according to the provisions at Point 3.1.a, Clause 3, Article 1 of Decision No. 149/2001/QD-TTg including: direct public sale on the market; sale through Property Auction Service Centers and sale to State-run Debt Sale and Purchase Companies.

In cases of direct public sale on the market, the commercial banks and debt management companies shall have to effect the sale thereof in the form of public auction.

2. Commercial banks and debt management companies, which are the property sellers, shall decide to put the properties on public auctions, directly sign documents or contracts on the property sale, purchase and transfer, carry out the procedures for the transfer of the ownership right and/or use right over the properties to the buyers and the transferees, if they directly organize the public auction on the market; directly sign authorization contracts on property auction with Property Auction Service Centers or sell such properties to the State-run Debt Sale and Purchase Companies.

3. When directly organizing the public auction of one or more security properties, the General Directors (Directors) of commercial banks and the directors of debt management companies shall set up a Council for Property Handling at each branch or locality where exist the properties to be handled.

4. The Council for Property Handling shall have the following tasks and powers:

a) To determine the reserve prices for the public auction of security properties on the basis of the market prices at the time of selling them.

The reserve prices for the sale of properties (the selling prices) may be higher or lower than the value of the outstanding debts, the value of the properties determined upon the loan provision or the value of the properties determined by courts in their judgments and/or rulings;

b) To appoint the auctioneers;

c) To settle complaints relating to the public auction of the properties on the market;

d) To be allowed to use seals of commercial banks or debt management companies while performing the tasks and exercising powers mentioned in this Clause.

5. When directly organizing the public auction on the market, commercial banks and debt management companies shall have to carry out the following procedures:

a) To post up the property sale at their offices and the places of auction and announce it on local or central newspapers twice at an interval of no more than three (3) days between the two announcements and at least fifteen (15) days before the auction day, with the following information:

- Information on the to-be-sold properties, including: type, characteristics, quantity and quality of the properties;

- Information on the sale of properties, including: the time and place of registration for property purchase, time and place of property sale, modes of property sale, reserve prices, conditions for the property buyers (if any), procedures for the sale of properties and other information relating to the sale of properties;

b) To organize the property display, show the properties or documents thereon at the request of those who register for property purchase;

c) To make written records certifying the list of eligible purchase registrants. Those who register for property purchase shall have to make registration at least two (2) days before the opening of the property auction and pay a deposit equal to five percent (5%) of the reserve prices of the to-be-auctioned properties.

Eligible purchase registrants are those who fully meet the conditions of the property buyers (if any), have registered for the property purchase and paid the deposit before the deadline for property purchase registration.

In cases where the auctioned properties are purchased, the deposit shall be deducted from the buying prices; if the properties are not purchased, the deposit shall be returned to the property purchase registrants right after the auction.

In cases where the property purchase registrants, have paid deposits but later did not participate in the auction, the deposit amounts shall belong to commercial banks or debt management companies, except for cases where such persons can prove that their failure to participate in the auction is due to force majeure reasons (accidents, hospitalization due to serious illness, natural disasters). In these cases, the deposit amounts shall be returned to the persons who did not participate in the auction;

d) For properties being movables with the reserve prices of under ten million Vietnam dong (VND 10,000,000), the auction participants may directly participate therein without having to fill in the procedures for property purchase registration as prescribed at Point c of this Clause.

6. At the written request of commercial banks and debt management companies, the persons competent to make notarization and/or authentication for immovable properties shall have to attend the auctions to witness the auction of such immovables.

7. At the auctions, the auctioneers shall perform the following jobs:

a) Announcing the decision to put the properties on auction;

b) Making a roll call of eligible purchase registrants;

c) Presenting each of the to-be-auctioned properties, answering questions of the auction participants (if any), repeating the reserve prices and requesting the auction participants to offer bids at least equal to the reserve prices;

d) Clearly and accurately repeating in words every thirty (30) seconds the latest bid which is higher than the one offered by the previous bidder;

e) Announcing the name of the property auction winner, if after repeating the offered price for three times, no one offers a higher bid. In cases where many persons offer the same price, the auctioneers shall organize a lot drawing, then announce the name of the person who has drawn the right lot as the property auction winner;

g) Clearly stating the auction results in the property auction written record (the record shall be compiled by the auction secretary ), affixed with the signatures of the auctioneer, the property buyer, the auction secretary and signature and stamp of the person who has decided to put the properties on auction;

h) In cases where no one offers a bid at least equal to the reserve price, the auctioneers shall cease the property sale. The auction re-organization shall comply with the order and procedures prescribed at Clauses 5, 6 and 7 of this Section. If at the subsequent auction, no one offers a bid at least equal to the reserve price, the Council for Property Handling shall re-determine the reserve price for auction.

8. The persons competent to make notarization and/or authentication, who have witnessed the auction, shall notarize or authenticate the documents on property auction, then sign and fix their stamps therein.

9. If, past the time limit of registration for auction participation, there is only one person register for property purchase, the properties shall be sold directly to such person, provided that the selling prices thereof must be at least equal to the reserve prices determined by the Council. At the written request of commercial banks or debt management companies, the person competent to make notarization and/or authentication shall have to attend and witness the property sale, then notarize or authenticate the contracts on the property sale, purchase and transfer.

10. Commercial banks and their debt management companies shall publicly announce the results of the property auction at their offices and the auction place within three (3) days after the completion of the property sale.

11. Retrieval of debts from the handling of security properties

The whole proceeds from the handling of security properties shall be used to repay debts, including principals, interests and overdue interests, to commercial banks or debt management companies after substracting the actual and reasonable expenses related to the handling of security properties: expenses for the preservation and management of the properties, expenses for price determination as well as for the posting up and announcement of the property sale, expenses for the transportation and sale of properties, expenses for carrying out procedures for the transfer of the ownership right and/or use right (if any) and other reasonable expenses (if any). In cases where the proceeds are higher than the value of the outstanding debts plus the above-mentioned expenses, they shall be handled as follows:

a) In cases where the security properties are handed over to commercial banks under effective judgments or rulings of courts, the commercial banks or debt management companies shall temporarily keep the differences and immediately notify the judgment execution bodies thereof;

b) In other cases, the commercial banks and debt management companies shall temporarily keep the differences and immediately notify such to the persons who have properties to be handled.

III. PROCEDURES FOR THE NOTARIZATION AND AUTHENTICATION OF DOCUMENTS ON PROPERTY SALE

1. In cases where commercial banks and debt management companies have directly sold security properties before the effective date of this Circular, the procedures for the notarization and authentication of documents on property sale shall be carried out as follows:

a) For the security properties belonging to cases which have been judged by courts in an effective judgment or ruling, at the request of commercial banks or debt management companies, the persons competent to make notarization and/or authentication shall base themselves on the court’s judgment or ruling and the documents on the property sale, purchase and transfer to effect the notarization or authentication of such documents;

b) For security properties, the transfer of which to commercial banks has not yet stated in the court’s judgment or ruling but for which there are enough legal dossiers, the persons competent to make notarization and/or authentication shall effect the notarization or authentication of the documents on the sale, purchase and transfer of such properties;

c) For security properties, the transfer of which to commercial banks has not yet stated in the court’s judgment or ruling and for which there are not enough legal dossiers or there are enough legal dossiers but they are on dispute being settled by competent State agencies, after the legal dossiers are completed or the disputes are settled, the persons competent to make notarization and/or authentication shall effect the notarization or authentication of the documents on the sale, purchase and transfer of such properties.

2. In cases where security properties have been directly sold on the market by commercial banks and debt management companies as from the effective date of this Circular, the notarization and/or authentication of the documents on the property sale, purchase and transfer shall comply with the provisions in Section II of this Circular.

3. In cases where security properties are auctioned by Property Auction Service Centers, the notarization and/or authentication procedures shall comply with the Regulation on Property Auction, issued together with the Government’s Decree No. 86/CP of December 18, 1996.

IV. PROCEDURES FOR HANDING OVER PROPERTIES TO COMMERCIAL BANKS UNDER COURTS’ JUDGMENTS OR RULINGS

1. When executing judgments, the judgment execution bodies shall have to strictly comply with current legislation and the declared judgments. In cases where the judgments are not clear, thus causing difficulties and troubles to the execution, the judgment execution bodies shall request the courts which have issued the judgments or rulings to make explanations thereon. If the judgment execution bodies disagree with courts’ explanations, they shall report such to the Ministry of Justice for consideration and settlement.

2. For the properties whether or not handed over by judgment execution bodies to commercial banks, but having not enough legal dossiers, the judgment execution bodies shall coordinate with commercial banks in proposing the provincial/municipal People’s Committees and competent State agencies to complete the legal dossiers and procedures for the commercial banks to sell the properties and retrieve their capital.

3. For land, assets affixed to land and other properties not yet handed over to commercial banks by judgment execution bodies due to existing difficulties and troubles (failure to determine boundary markers, land transgression, inadequate payment of compensation for ground clearance…), the judgment execution bodies shall coordinate with the commercial banks in proposing the provincial/municipal People’s Committees and competent State agencies to concentrate their efforts on removing such difficulties and troubles and completing the procedures so as to immediately hand over such properties to the commercial banks.

V. IMPLEMENTATION EFFECT

This Circular takes effect fifteen (15) days after its signing. In the course of implementation, if any troubles arise, the commercial banks, debt management companies, notary offices and judgment execution bodies shall report them to the State Bank and the Justice Ministry for timely explanation, supplementation and amendment. The supplementation and/or amendment of this Circular shall be decided by the State Bank Governor and the Minister of Justice.