Is it permissible for the wife to represent her husband in reclaiming the collateral, specifically the certificate of land use rights, from the bank?

Situation:

The certificate of land use rights, under the joint names of me and my husband, is currently mortgaged at the bank as collateral for our loan. Presently, my husband is detained for drug trafficking (and is likely facing a life sentence). I have settled the loan and paid off the entire debt to the bank. 

Now I have a question: If my husband is imprisoned, is it permissible for me to represent my husband in reclaiming the collateral, specifically the certificate of land use rights, from the bank? What documentation do I need to provide to the bank to facilitate the return of the land title to us? Your assistance is greatly appreciated.

FDVN’s Opinion:

Thank you for reaching out to FDVN Law Firm. In response to your inquiry, after reviewing relevant legal provisions, FDVN would like to provide the following advice:

If the credit agreement between you and the bank stipulates provisions regarding collateral in the form of mortgaged property, which either spouse can establish, execute, and terminate transactions. You may act on behalf of your husband to settle the entire debt with the bank and retrieve the certificate of land use rights.

If the contract does not specify or require the consent of both spouses when establishing, executing, and terminating transactions with the bank. Your husband can delegate authority to you to conduct transactions with the bank. Specifically, you can represent your husband in repaying the bank and retrieving the mortgaged certificate of land use rights through a power of attorney agreement as stipulated in Article 24, Clause 2 of the 2014 Law on Marriage and Family, which states:

“2. Husband and wife may authorize each other to establish, make or terminate transactions which, as prescribed by this Law, the Civil Code and other relevant laws, shall be agreed upon by both spouses.” 

Additionally, Article 44, Clause 2 of the Notarization Law 2014 specifies the notarization location for individuals serving a custodial sentence as follows:

“Notarization may be conducted outside the head office of a notarial practice organization if the notarization requester is old and weak and cannot move, is held in custody or in prison, is serving an imprisonment sentence, or has another plausible reason for being unable to come to the head office of the notarial practice organization.”

Based on this provision, if your husband is serving a custodial sentence and requires notarization for the power of attorney agreement, you can engage a notary practice organization to perform notarization at the location where your husband is temporarily detained.

The above is the legal advice from FDVN based on researching relevant legal provisions regarding your inquiry. We hope this advice will be beneficial to you.

Hoang Tran Ngoc Anh – FDVN Law Firm