Judgement No. 59/2017/DS-ST dated September 26, 2017 on a loan agreement dispute

PEOPLE’S COURT OF DA NANG CITY

JUDGEMENT NO. 59/2017/DS-ST DATED SEPTEMBER 26, 2017 ON A LOAN AGREEMENT DISPUTE

On September 26, 2017, the first instance trial was conducted at the office of People’s Court of Da Nang City to hear the case No. 10/2016/TLST-DS dated April 25, 2016 on the loan agreement dispute according to the Decision to Bring the Case to Trial No.  11A/2017/QDXXST-DS dated April 10, 2017 between litigants:

- Petitioners:

1. Mr. Tran Trong N.

2. Mrs. Pham Ngoc L.

Both residing in: Street H, Ward T, Ho Chi Minh City.

Authorized legal representative of petitioners: Mr. Huynh Hoai N, address: Street N, Ward H, District H, Da Nang City (Letter of Authorization dated December 3, 2015).

- Respondent:

1. Mrs. Ho Thi Kim K; residing in: Street O, Ward T, District H, Da Nang City.

2. Mr. Tran Ngoc K; address: Midcrown Dr, Windcrest, Texas (TX 78239), USA.

THE CASE

Representation of the petitioners Mr. Tran Trong N and Mrs. Pham Ngoc L:

- In 2011, the respondents Mr. Tran Ngoc K and Mrs. Ho Thi Kim K asked the petitioners Mr. Tran Trong N and Mrs. Pham Ngoc L to lend them money for business purpose; because Mr. K is Mr. N’s full older brother, Mr. N and Mrs. L agreed. Each loan would be transferred to the account opened at the bank and all the negotiation and transactions were not recorded by any document or paper.  After that, from September 7, 2011 to August 16, 2012, Mr. N and Mrs. L one after another# transferred money to the account No. 2000206250868 opened at the Bank N in Mrs. K’s name, totaling VND 19,205,336,000.

- From October 5, 2011 to June 7, 2012, Mr. Tran Ngoc K and Mrs. Ho Thi Kim K transferred money back to them to the account No. 1602205112771 opened at the Bank N in Mrs. L’s name, totaling VND 8,311,000,000.

- In early September 2012, the two parties mutually agreed to charge a monthly interest of 1%on the principal balance from early September 2012 until the debt is fully repaid.

- Then, because Mr. K and Mrs. K failed to repay on schedule as agreed, they continuously required them to repay a lump sum of the debt but Mr. K and Mrs. K only promised without repaying any sum of money. Thereafter, they learned that the Mr. K and Mrs. K’s son was preparing the paperwork to sponsor his parents to immigrate in USA. They filed a lawsuit against Mr. K and Mrs. K, requiring them to repay the remaining debt of VND 16,680,000,000, including VND 12,000,000,000 of principal and VND 4,680,000,000 of interest.

- At the first instance court hearing, the authorized legal representative of the petitioners withdraws the lawsuit as to the following matters with below grounds: There are insubstantial grounds to prove that Mr. Tran Ngoc K was involved in the loan with Mr. Tran Trong N and Mrs. Pham Ngoc L, the petitioners withdraw the request for joint liability of Mr. K; there are also insubstantial grounds to prove that is an interest-charged loan, the petitioners withdraw the request for an interest of VND 4,680,000,000; it is proved that Mrs. K paid Mr. N and Mrs. L VND 8,311,000,000, so Mr. N and Mrs. L request Mrs. K to repay the remaining principal of VND 10,894,336,000.

Representation of the respondent Mrs. Ho Thi Kim K:

- From September 2011 to August 2012, she and Mrs. Pham Ngoc L provided financial help to each other to do business; however, they do not sign any document or paper. Dealing# sum all transferred via her account and Mrs. L’s account opened at the bank; Mrs. L transferred money to her multiple times VND 12,000,000,000 in total; without interest.  After that, she repaid nearly fully this sum of money according to the vouchers certifying the money transfer back to Mrs. L’s account, she filed the photos of such vouchers with the Court; and she will provide the Court with accurate data later.

- Because his husband Mr. Tran Ngoc K has lived abroad, he could not appear in the court following the summon sent by the Court. However, the aforesaid transaction was only entered into by her and Mrs. L, Mr. K did not know about this dealing. So, she thinks that Mr. K is not involved in; and she will take responsibility to Mrs. L and repay in full the debt to Mrs. L.

During the process of settling the case, the respondent Mr. Tran Ngoc K did not provide the court with any written response, and did not show up at the court trial.

At the court hearing today, considering the compliance with procedural law by the Judge, Trial Panel, court reporter and procedural participants during the settlement process from the time when the case was accepted until the deliberation of the Trial Panel, the Procurator determines that they have complied with laws and regulations on civil procedures and requests the Trial Panel to apply Article 466, Article 468, and Article 688 of the Civil Code in Viet Nam; Article 91, Article 147 and Article 244 of the Civil Procedure Code in Viet Nam; the Ordinance on court fees and charges in Viet Nam to accept the request for settlement of loan agreement dispute filed by Mr. Tran Trong N and Mrs. Pham Ngoc L against Mrs. Ho Thi Kim K.

According to documents and evidence assessed and the adversarial process at the court hearing, after the representative of the People’s Procuracy expresses the opinions, the Trial Panel considers that:

JUDGEMENT OF THE COURT

[1] The petitioners Mr. Tran Trong N and Mrs. Pham Ngoc L, Vietnamese citizens, address: Street H, Ward T, Ho Chi Minh City and the respondents determined according to the lawsuit petition, including Mr. Tran Ngoc K, Vietnamese nationality, address: Midcrown Dr, Windcrest, Texas (TX 78239), USA and Mrs. Ho Thi Kim K; address: Street O, Ward T, District H, Da Nang City, so the civil case falls under jurisdiction of the People’s Court of Da Nang City as prescribed in Articles 37, Article 40 of the Civil Procedure Code.

[2] After the case acceptance, on December 16, 2016, the Court served the court papers to the overseas respondent Mr. Tran Ngoc K and required the competent authority of USA to take evidence abroad according to the method prescribed in the international treaty to which the Socialist Republic of Vietnam is a signatory in accordance with Point a Clause 1 Article 474 and Clause 1 Article 475 of the Civil Procedure Code. After that, however, the Court did not receive any notice of the service of process result as well as deposition or evidence of the overseas litigant Mr. Tran Ngoc K. On April  25 2017 when the court hearing was held, Mr. K also did not appear and filed the Court with any request for trial in absentia, thus, the Court delayed the court trial and requested the Ministry of Justice in writing to notify Mr. K of such service of process and court papers and take evidence abroad. Subsequently, the Ministry of Justice issued documents No. 1735/BTP-PLQT dated May 12, 2017 and 2751/BTP-PLQT dated September 7, 2017 regarding judicial assistance performance progress and sent them to Department of Consular affiliated to Ministry of Foreign Affairs, but the Ministry of Justice still did not receive any response. Therefore, the Court decides to conduct the court hearing in absence of the overseas litigant Mr. K as prescribed in Point c Clause 5 Article 477 of the Civil Procedure Code.

[3] At the court hearing, the authorized legal representative of the petitioners withdraws the request for joint liability against Mr. Tran Ngoc K; upholds the request against Mrs. Ho Thi Kim K. Considering that this is the decision and discretion right of the litigant and fits for Mrs. K’s wish that she will bear the sole responsibility to the petitioners, not involving in Mr. K as prescribed in Article 5 of the Civil Procedure Code, it should be accepted.

[4] At the court hearing, the authorized legal representative of the petitioners withdraws the request for interest of VND 4,680,000,000. Considering that the petitioners’ voluntary withdrawal of partial request conforms to Article 244 of the Civil Procedure Code, it is advisable to accept it to suspend the trial of such a request.

[5] In addition, at the court hearing, the authorized legal representative changes the amount of principal from VND 12,000,000,000 to VND 10,894,336,000 because they can determine the correct amount repaid by Mrs. K to Mr. N and Mrs. L of VND 8,311,000,000, the remaining principal is VND 10,894,336,000. Deeming that this change of request conforms to Article 244 of the Civil Procedure Code and would be advantageous to the respondent, it should be accepted.

[6] Considering the petitioners’ request compelling Mrs. Ho Thi Kim to discharge the debt repayment liability: During the lawsuit settlement, the petitioners, by original invoices and proof and documents certified by the Bank N, may prove that from September 7, 2011 to August 16, 2012Mrs. Pham Ngoc L transferred money 20 times to the account No. 2000206250868 opened at the Bank N in Mrs. Ho Thi Kim K’s name, totaling VND 19,205,336,000; conversely, from October 5, 2011 to June 7, 2012, Mrs. Ho Thi Kim K transferred money back to Mrs. L and Mr. N 5 times to the account No. 1602205112771 opened at the Bank N in Mrs. Pham Ngoc L’s name, totaling VND 8,311,000,000. Accordingly, Mrs. K has not repaid Mr. N and Mrs. L VND 10,894,336,000, Mr. N and Mrs. L’s request of repayment of such amount against Mrs. L conforms to Article 466 of the Civil Code, it should be accepted.

[7] During the lawsuit settlement, Mrs. Ho Thi Kim K claims that she only borrowed Mrs. Pham Ngoc L a total amount of VND 12,000,000,000 and has repaid nearly fully this amount, but she failed to provide evidence for such statement, so it cannot be accepted as prescribed in Article 91 of the Civil Procedure Code.

[8] Mrs. Ho Thi Kim K has to pay first instance civil court fee determined according to the amount to be repaid to Mr. N and Mrs. L as prescribed in Article 147 of the Civil Procedure Code and Clause 2 Article 27 of the Ordinance of Court Fees and Charges.

Based on the above-mentioned facts and matters,

HEREBY DECIDES

Pursuant to Article 466, Article 468 and Article 6888 of the Civil Code, Article 5, Article 37, Article 40, Article 91, Article 147, Article 244, Article 474, Article 475, Article 477 of the Civil Procedure Code, Ordinance of court fees and charges

to accept the request for settlement of loan agreement dispute filed by Mr. Tran Trong N and Mrs. Pham Ngoc L against Mrs. Ho Thi Kim K.

Judges:

1. Mrs. Ho Thi Kim K is compelled to repay Mr. Tran Trong N and Mrs. Pham Ngoc L a sum of VND 10,894,336,000 (Ten billion, eight hundred ninety four million, three hundred thirty six thousand dong).

From the date on which the judgment creditor makes a request for judgment enforcement until the repayment is made fully, every month, the judgment debtor must also incur the interest rate on the late repayment according to the interest rate agreed upon by the two parties but not exceeding the interest rate prescribed in Clause 1 Article 468 of the Civil Code; if there is no agreement on interest rate, Clause 2 Article 468 of the Civil Code shall apply.

2. The trial of the request for interest of VND 4,680,000,000 (Four billion, six hundred, eighty million dong is suspended) made by Mr. Tran Trong N and Mrs. Pham Ngoc L against Mrs. Ho Thi Kim K.

3. With reference to court fees:

Mrs. Ho Thi Kim K has to pay the first instance civil court fee of VND 118,894,336 (One hundred eighteen million, eighty ninety four thousand, three hundred thirty six dong).

Mr. Tran Trong N and Mrs. Pham Ngoc L do not have to pay the first instance civil court fee; refund Mr. N and Mrs. L VND 62,300,000 (Sixty two million, three hundred thousand dong) of the paid advance according to the receipt No. 004970 dated December 10, 2015 of Department of Civil Judgment Enforcement of Hai Chau District, Da Nang City.

4. In case the judgment or court decision is enforced as per regulations in Article 2 of the Law on Enforcements of Civil Judgments in Viet Nam, 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, 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.

5. With reference to right to appeal: The authorized legal representative of petitioners Mr. Huynh Hoai Nam and the petitioner Mr. Tran Trong N and Mrs. Pham Ngoc L have the right to appeal the Judgment within 15 days from the date of pronouncement of the Judgment; the respondent Mrs. Ho Thi Kim K not present at court has the right to appeal the Judgment within 15 days from the date on which the Judgment is served properly in accordance with the law.