2018.8.22
Frank Sun
The Kaohsiung Branch Court of the Taiwan High Court rendered the 107-Shang-Yi-184 Civil Decision of August 22 , 2018 (hereinafter, the “Decision”), holding that whether an asset management company acquires the assets of a bank for low prices with or without profits does not affect its legal status where it may exercise rights over the non-performing loans received from the bank.
According to the facts underlying this Decision, the Appellee filed a complaint alleging the following: Individual A, who is not a party to this lawsuit, had invited the Appellant to be the joint borrowers for a loan taken from Bank B, who is not a party to this lawsuit. Individual A failed to repay the loan, which was contractually deemed mature in its entirety. Bank B assigned the loan to the Appellee and posted an announcement in a newspaper in lieu of a claim assignment notice. The Appellee then requested the Appellant to pay the above principal, interest and default penalty based on the legal relationship of a consumption loan, joint loan and claim assignment. The original trial court rendered a decision in favor of the Appellee. Dissatisfied, the Appellant appealed on the ground that Bank B’s claim had not been assigned, and that the Appellee had promised not to claim from the original borrowers when obtaining Bank B’s assets via competitive bidding.
According to the Decision, the Appellee was an asset management company that targets the acquisition of non-performing loans. It’s receipt of Bank B’s assignment of non-performing loans (including the above loan) may be communicated by way of a public announcement in lieu of a claim assignment notice in accordance with Article 15, Paragraph 1 , Subparagraph 1 of the Financial Institutions Merger Law, to which Article 18, Paragraph 13 of the same law applies, and Article 297 of the Civil Code does not apply. The fact that the Appellee published an announcement that it had acquired non-performing loans from Bank B gave effect to the claim assignment legally vis-a-vis the Appellant. Therefore, the Appellee certainly could contractually and legally exercise the claim against the Appellant. As for whether the Appellee acquired the assets from Bank B with or without profits, this does not affect the legal status where the Appellee may exercise its claim over the above loan, and the amount which the Appellee could request Individual A to repay also has no relevance to the price for which such claim was assigned. Therefore, the Appellant’s appeal was dismissed.