Main tasks and practical skills:
A mortgage is used as security for the performance of a contract, especially a contract for a loan. Therefore, when resolving disputes over the contract, the Court may have to resolve issues concerning the mortgaged property as well.
- A mortgage transaction, which is also a contract, shall have to comply with legal provisions on contracts. A mortgage contract must be made in writing, either in a separate document or within a principal contract but the mortgage contract shall have independent effect and must comply with legal provisions on mortgage contracts.
- Noting the forms of mortgage contracts. Mortgaged property in the form of a house or land must be notarized or authenticated by a competent body. A body authorized to authenticate shall be authorized to register security transactions (Article 8 of Decree No. 08/2000/ND-CP). People’s Committees of wards, communes and townships in which immovable property is located shall carry out registration of security transactions in respect of land use rights, and immovable property attached to land where the security provider is a household or an individual (Point dd of Item 2 of Article 8 of Decree No. 08/2000/ND-CP).
- Registration of security transactions using land use rights is provided in Article 64 of Decree No. 181/2004/ND-CP. Pursuant to Item 3 of Article 64, the body carrying out registration of security transactions including the mortgage of land use rights shall be the land use right registration office. Therefore, registration of a mortgage of land use rights may be conducted either at the commune-level People’s Committee or at the above-mentioned office.
- Where the security property is provided as security for different loan obligations and realized in order to satisfy an obligation which has fallen due, the other obligations which have not yet fallen due shall also be deemed due and all secured parties shall be entitled to take part in the realization. (Article 34 of Decree No. 165/1999/ND-CP).
- When a dispute on entitlements to a mortgaged property arises (for instance, a dispute with a third party to the mortgage), the concerned parties may request the court to resolve the dispute on entitlements before dealing with the mortgage. .
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