Judgement No. 15/2018/DS-ST dated november 9, 2018 on a credit agreement

THE PEOPLE'S COURT OF QUANG BINH PROVINCE

JUDGEMENT NO. 15/2018/DS-ST DATED NOVEMBER 9, 2018 ON A CREDIT AGREEMENT

On November 9, 2018, at the civil court room in the head office of the People’s Court of Quang Binh province, a first instance trial was conducted to hear the civil case No.  01/2018/TLSTS dated January 10, 2018 on the credit agreement dispute according to the Decision to Bring the Case to Trial No. 251/2018/QD-ST dated March 3, 2018, between:

- Petitioner: the Bank B - Address: Tower B1, street V, district H, Hanoi. Legal representative: Mr. Phan Duc T - Director General  of Bank V Vietnam.

Authorized representative: Mr. Nguyen Phuc M, position: Head of Risk Management Office - Bank B Vietnam - Branch Q (according to the Decision No. 464/QD-B.Q dated March 1, 2018 of the Director of Bank B Vietnam, Branch Q). Present;

- Respondent: Mrs. Vo Thi Thanh T, born in 1979

Registered permanent residence before emigration: S2, ward D, city H1, Quang Binh province, currently residing abroad. Absent.

FINDING THAT

Representation of the petitioner, Bank B Vietnam, in the lawsuit petition dated November 21, 2017 and voluntary statement dated January 26, 2018: On January 20, 2016, Mrs. Vo Thi Thanh T signed the credit agreement No. 01/2016/537455/HD with transaction office D1, Bank B Vietnam - Quang Binh Branch (hereinafter referred to as B Quang Binh) to take out a loan of VND 58,000,000 (in words: fifty eight million dong), with loan maturity: 40 months, with personal consumption purpose; lending interest rate: variable under the credit agreement No. 01/2016/537455/HD.

Mrs. Vo Thi Thanh T (a clerk working for Quang Binh Preventive Medical Center) secured her debt repayment by her monthly income and bonuses paid by the employer. Loan application letter of Mrs. Vo Thi Thanh T bears the certification of her monthly income paid by Quang Binh Preventive Medical Center . Total loan amount which Mrs. Vo Thi Thanh T received from B Quang Binh was VND 58,000,000 according to the statement of drawdown dated January 20, 2016. During the credit agreement period, Mrs. Vo Thi Thanh T failed to abide by the terms and conditions in the credit agreement signed with B Quang Binh and incurred overdue debt with total of principal, interest and fees, provisionally calculated until August 14, 2017 is: VND 53,986,309 (including principal of VND 47,467,878, interest due: VND 6,087,970 and overdue interest: VND 430,461).

All this sum of Mrs. Vo Thi Thanh T is currently deemed as bad debt, which is subject matter in Resolution No. 42/2017/QH14 of the National Assembly dated June 21, 2017 on pilot settlement of bad debts of credit institutions. B Quang Binh sent a notice of overdue debt to Mrs. Vo Thi Thanh T but she was absent from her place of residence. According to the Official Dispatch No. 834/CTA-PA72 (D1) dated August 23, 2017 of Police of Quang Binh province, on June 7, 2016, Mrs. Vo Thi Thanh T emigrated abroad through Noi Bai international airport and there is no information about immigration.

In order to collect the debt, Bank B requests the People’s Court of Quang Binh province to force Mrs. Vo Thi Thanh T to repay B Quang Binh VND 53,986,309 and interest and fine accrued under the credit agreement concluded between Mrs. Vo Thi Thanh T and B Quang Binh until the debt is fully repaid.

With respect to the respondent, Mrs. Vo Thi Thanh T: After the case was accepted, the People’s Court of Quang Binh province sent the notice of acceptance to Mrs. Vo Thi Thanh T and duly served subpoenas, notice of meeting opening, reconciliation meetings, decision to bring the case to trial to Mrs. Vo Thi Thanh T at her address of S2, ward D, city H1, Quang Binh province, but she was absent so they were not received. On January 10, 2018, the court conducted verification of place of residence of Mrs. Vo Thi Thanh T and the local government provided information that she no longer resided there. The court put up court's papers at the registered permanent residence of Mrs. Vo Thi Thanh T before her emigration, which is S2, ward D and at the People’s Committee of ward D, and at the head office of the People’s Court of Quang Binh province as prescribed in Article 173, 177, 179 of the Civil Procedure Code. Therefore, the respondent Mrs. Vo Thi Thanh T gives no opinion.

Opinion of the representative of the People’s Procuracy in the court hearing: The Judge and Trial Panel have complied with regulations of the Civil Procedure Code. Request the Trial Panel to apply Clause 3 Article 474; Clause 5 Article 477 of the Civil Procedure Code to accept the lawsuit petition of the petitioner, Joint Stock Commercial Bank for Investment and Development of Vietnam (BIDV), to repay the bank: VND 61,457,807; Mrs. Vo Thi Thanh T has to pay the court fee as per the law.

JUDGEMENT OF THE COURT

 [1] With reference to jurisdiction:

According to the lawsuit petition dated November 21, 2017 of the petitioner, Bank B Vietnam: On January 20, 2016, Mrs. Vo Thi Thanh T, born in 1979 - registered permanent residence: S2, ward D, city H1, Quang Binh province concluded the credit agreement No. 01/2016/537455/HD with the Bank to take out a loan. During the credit agreement period, Mrs. Thuy failed to abide by the terms and conditions and emigrated abroad with unknown address. According to the Official Dispatch No. 834/CTA-PA72 (D1) dated August 23, 2017 of Police of Quang Binh province, on June 7, 2016, Mrs. Vo Thi Thanh T emigrated abroad through Noi Bai international airport with the passport No. B893567 and there is no information about immigration. So, Mrs. Vo Thi Thanh T has currently not presented in Vietnam. In order to collect the debt, the Bank filed a lawsuit claiming Mrs. Vo Thi Thanh T to repay her debt. Pursuant to Clause 3 Article 26; Clause 3 Article 35 of the Civil Procedure Code 2015; Point a Clause 2 Article 6 of Resolution No. 04/2017/NQ-HDTP dated May 5, 2017 of the Council of Judges of the Supreme People’s Court, the People’s Court of Quang Binh province accepted the case within its jurisdiction.

 [2] With reference to court procedures: After accepting the case, the People’s Court of Quang Binh province duly served court’s papers as prescribed in Article 474, 476 of the Civil Procedure Code, in specific: the notice of case acceptance based on the petitioner, Bank B Vietnam, and documents related to the case settlement, notices of meeting opening, reconciliation meeting to Mrs. T, but since she has resided abroad without detailed address, the court failed to serve these papers to Mrs. T in person. The court put up these papers at her registered permanent residence according to the address mentioned in the credit agreement: S2, ward D, city H1, Quang Binh province, at the head office of the People’s Court of Quang Binh province, and post on website of VOVworld of Voice of Vietnam from May 17 to 19, 2018.

On October 10, 2018, the People’s Court of Quang Binh province opened a court hearing, the respondent Mrs. Vo Thi Thanh T was absent. So, pursuant to Article 227, Article 233, Article 235, Article 476, the court adjourned the hearing.

At today’s court hearing, November 9, 2018, Mrs. Vo Thi Thanh T is still absent. Pursuant to Article 476; Point b Clause 5 Article 477 of the Civil Procedure Code, the court conducts the trial.

 [3] With reference to content:

On January 20, 2016, Mrs. Vo Thi Thanh T signed the credit agreement No. 01/2016/537455/HD with transaction office D1, Bank B Vietnam - Quang Binh Branch (hereinafter referred to as B Quang Binh) to take out a loan of VND 58,000,000, loan maturity: 40 months, consumption purpose; lending interest rate: variable under the agreement. At the borrowing time, Mrs. Vo Thi Thanh T is a clerk of Quang Binh Preventive Medical Center ). So, she secured her debt repayment by her monthly income and bonuses paid by the employer, which is certified in the loan application letter. On January 20, 2016, Mrs. Vo Thi Thanh T withdrew the loan from B Quang Binh of VND 58,000,000 to the account No. 531.82000 401790 as mentioned in the statement of drawdown/credit agreement signed by Mrs. Vo Thi Thanh T (case file p. 09). So, the credit agreement No. 01/2016/537455/HD was concluded with format and content in accordance with laws and regulations and was executed since January 20, 2016.

During the execution, Mrs. Vo Thi Thanh T failed to abide by its terms and conditions and incurred overdue debt since September 26, 2016 (according to the statement of B Quang Binh). At the borrowing time, Mrs. Vo Thi Thanh T secured her debt repayment by her monthly income and bonuses paid by Quang Binh Preventive Medical Center . However, according to the Decision No. 241/QD-YTDP dated July 12, 2016 of Quang Binh Preventive Medical Center  on disciplinary action against Mrs. Vo Thi Thanh T, since July 1, 2016, Mrs. Vo Thi Thanh T has no longer been a public employee of Quang Binh Preventive Medical Center  and she emigrated abroad without any notice to Bank B Vietnam.

Her failure to repay the debt as agreed in the credit agreement No. 01/2016/537455/HD and her secured income no longer exists, thus, she defaulted on her loan. According to the lawsuit petition and opinions of Mr. Nguyen Phuc M, the petitioner’s authorized representative, requesting the court to force Mrs. Vo Thi Thanh T to fully repay the debt to Bank B Vietnam, the Trial Panel considers that it is grounded to require Mrs. Vo Thi Thanh T to repay Bank B Vietnam, until November 9, 2018, the amount of: VND 61,475,807, including the principal of VND 47,467,878, interest of VND 14,007,929. 

 [3] With reference to court fee:

Pursuant to Article 147 of the Civil Procedure Code; Clause 2 Article 26 of the National Assembly Standing Committee's Resolution No. 326/2016/UBTVQH14 dated December 30, 2016 on court fees and charges, and exemption, reduction, collection, transfer, management and use thereof: Compel Mrs. Vo Thi Thanh T to pay VND 3,073,790 of first instance civil court fee

Since the petitioner, Bank B Vietnam, is not obliged to pay the court fee, it is refunded VND 1,350,000 of the paid court fee advance according to the receipt No. AA/2017/0004502 dated January 3, 2018 at Department of Civil Judgment Enforcement of Quang Binh province.

Pursuant to documents and evidence mentioned above;

HEREBY DECIDES

Pursuant to Point a Clause 3 Article 26; Point c Clause 1 Article 37; Article 464; Article 476 of the Civil Procedure Code; Article 280; Article 281; Article 282; Article 351; Article 463, Article 466; Article 468 of the Civil Code; Article 26 of the National Assembly Standing Committee's Resolution No. 326/2016/UBTVQH14 dated December 30, 2016 on court fees and charges, and exemption, reduction, collection, transfer, management and use thereof, hereby judges:

1. Accept the lawsuit petition of Bank B Vietnam (BIDV) to compel Mrs. Vo Thi Thanh T to repay B Quang Binh, until November 9, 2018, the amount of: VND 61,475,807, including VND 47,467,878 of principal and VND 14,007,929 of interest.

2. Regarding court fee:  Compel Mrs. Vo Thi Thanh T to pay VND 3,073,790 of first instance civil court fee.

Refund Bank B Vietnam VND 1,350,000 of the paid court fee advance according to the receipt No. AA/2017/0004502 dated January 3, 2018 at Department of Civil Judgment Enforcement of Quang Binh province.

Following the first instance pronouncement date (November 10, 2018) to the date on which Mrs. Vo Thi Thanh T fully repays the debt, she is obliged to pay the interest on the principal according to the interest rate under the credit agreement No. 01/2016/537455/HD between transaction office D1, Bank B Vietnam - Quang Binh Branch.

In case the judgment or court decision is enforced as per regulations in Article 2 of the Law on enforcements of civil judgments, the judgment creditor and judgment debtor are lawfully allowed to reach an agreement on judgment enforcement, request judgment enforcement, be subject to voluntary execution or coercive judgment enforcement in compliance with regulations in Article 6, 7 and 9 of the Law on enforcement of civil judgments, and the effective period of judgment enforcement shall comply within provisions in Article 30 of the Law on enforcement of civil judgments.

Since the petitioner, Bank B Vietnam, is present at the court hearing, it is entitled to appeal this judgment within 15 days from the first instance pronouncement date.

Since Mrs. Vo Thi Thanh T is absent at the court hearing, she is entitled to appeal this judgment within 1 month from the date on which the judgment is duly posted up.