FORECLOSURE AND ENFORCEMENT OF DEFICIENCY JUDGEMENT

Abstract

The legal provisions related to the mortgage contract under the Civil and commercial Code have recently been amended corresponding to a current economic background and dynamic society. The amendment was made with a significant objective to protect the mortgager who assigns his property to creditor, called the mortgagee, as security for the performance of an obligation following the intendment of law. The amendment of the mortgage law was observed that the foreclosure and enforcement of deficiency judgement were principally focused. For the foreclosure, the mortgage law has addressed a definite form of notification by inscribing a fixed period of sixty days for the period of prescription. Thus, the mortgagee is required by the law to send a written notice to the mortgager to perform his obligation agreed under the mortgage contract. If the mortgagee is considered as a third party, the period of prescription for sending a written notification is fifteen days but the law requires mortgagee to send a written notification after notifying the debtor. In addition, it is interesting to observed that the law, for the first time, allows the mortgagor to commence the process of public auction to enforce the mortgaged property without having to file a proceeding in court. In case of the enforcement of deficiency judgement, the mortgage law prohibited mortgagee and third-party mortgager from making any legal clause in a mortgage contract to allow third-party mortgager to be responsible for d deficiency by voiding such legal clause. In practice, problems have subsequently aroused. Consequently, the author intends to analyze the legal provisions of the mortgage law especially on the foreclosure and enforcement of deficiency judgement under the Civil and Commercial Code, address some problems found after the law has been in force as well as proposes some suggestions to the mortgage law pertaining to the foreclosure and enforcement of deficiency judgement.