Mortgage Refinancing System Creation - Instrumentation - Updated Standard Text

Original Language Title: SISTEMA DE REFINANCIACION HIPOTECARIA CREACION - INSTRUMENTACION - Texto actualizado de la norma

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HIPOTECARY REFINANCIATION SYSTEM Law 25,798 Creation. Trust. System Instrumentation. Effects. Mutuos Hipotecarios contracted prior to the validity of the Law of Convertibility. Complementary provisions. Watch. Sanctioned: November 5, 2003 promulgated: November 6, 2003

The Senate and Chamber of Deputies of the Argentine Nation assembled in Congress, etc. sanction with force of Law:

CHAPTER I - The Hypotective Refinancing System.

ARTICLE 1 Creation. Consider the HIPOTECARY REFINANCIATION SYSTEM which will aim at the implementation of the refinancing mechanisms provided for in this Act and its regulation.

ARTICLE 2 Eligible Mutuals. For the purposes of this law, it shall be understood as a mutually eligible mutual guarantee guaranteed with a real mortgage right that meets the following requirements:

(a) May the debtor be an undivided physical person or succession;

(b) That the fate of the mutual has been the acquisition, improvement, construction and/or expansion of housing, or the cancellation of mutual constituted originally for any of the aforementioned destinations;

(c) That such housing is unique and family.

The nature of the creditor does not constitute a requirement of eligibility, resulting in the inclusion of mutuals held with financial entities or non-financial creditors, without prejudice to article 26 of this law.

(Note Infoleg: By arts. 1 and 2° Act No. 26103 B.O. 15/6/2006 is extended from the expiration of the deadline set out in Act No. 26084 for the period of 180 working days the suspension of executions of sentences and evictions of single and family housing by eligible mutuals. Previous: Act No. 26.062 B.O. 4/11/2005 and Act No. 26084 B.O. 10/3/2006).

Article 3 Epoca de la Mora. The debtor of an eligible mutual shall have incurred a arrears between 1 January 2001 and 11 September 2003 and remain in that state from then until the date of entry into force of this law.

ARTICLE 4 Nature of the Mora. For the purposes of this Act, the default that empowers the creditor to attempt the executive way or, where appropriate, the procedures provided for in the special regime of extrajudicial executions authorized by Title V of Law No. 24,441 and its amendments shall be understood by default.

ARTICLE 5o A lot. The amount of the eligible mutual origin may not exceed CIEN MIL PESOS ($ 100,000), without prejudice to the provisions of the last paragraph of Article 16 of this Law.

ARTICLE 6 Optional System Character. Income to the Hypotective Refinancing System will be optional.

The power to exercise such an option shall apply only to the creditor party, where the creditor is a financial entity subject to the Act No. 21.526 and its amendments. In other cases, the option may be exercised by both the creditor and the debtor.

Regardless of the nature of the creditor, the time limit for exercising the said option shall be up to SESENTA (60) working days of the entry into force of the regulation of this law.

(Note Infoleg: By art. 2° of the Act No. 26.062 B.O. 4/11/2005 is granted a new time limit of 120 days to exercise the option of entering the Hypotective Refinancing System established in this article. Article 3 of the same rule states that the term shall begin to run the day after the publication of the law in the Official Gazette. Article 3 of the Act No. 26.084 B.O. 10/3/2006 extends for the term of 90 days from its expiration the period referred to in the previous rule, period that was extended from its expiry and for the period of 180 working days, by art. 3rd of the Act No. 26103 B.O. 15/6/2006).

(Note Infoleg: By art. 1 Decree No. 352/2004 B.O. 24/3/2004 is extended from its expiry, by SESENTA (60) working days the period established in the last paragraph of this article. Vigilance: from the day of his dictation.)

ARTICLE 7 Conditions of admissibility. The creditor that enters the Refinancing System established by this Act and is not subject to the Act No. 21.526 and its amendments shall submit the following documentation:

(a) A certificate of tax performance that proves that the funds given in mutual mortgage have been duly declared and the corresponding tax duly entered, as appropriate, in the terms of article 104 of Law No. 11.683 and its amendments.

In cases where the option is exercised by the debtor, it will not be necessary for this condition to be credited. The trustee is empowered to arbitrate the necessary means to determine the tax performance referred to and, where appropriate, to retain the payments to the creditor for the amounts to be determined by the tax authority.

(b) An affidavit granted by counsel and/or scribe with legal signature by the respective schools of the jurisdiction and/or certification of the secretariat of the court where the case is handled, which credits the legitimacy, subsistence and full legal effects of the mutual mortgage.

Invite the provinces to arbitrate the necessary means so that the affidavit referred to in this paragraph may be replaced by a record issued free of charge by the respective Property Registry and the means for the judge of the case to grant the waiver of the justice rate.

(c) An affidavit granted by national public accountant, signed by the respective professional councils, which credits the final amount of the credit.

The national executive branch shall arbitrate the necessary means so that the affidavit referred to in this paragraph may be supplemented by record issued free of charge by the General Assembly of the Nation (SIGEN).

(d) An affidavit granted by professional entitled to the effect by the regulation of science, art or profession, with legal signature by the respective collegiate entity, which credits the current valuation of the property.

In the event that the creditor party is subject to the law of Law No. 21.526 and its amendments shall report on subparagraphs (b), (c) and (d) preceding the Superintendence of Financial Institutions and Changes of the Central Bank of the Argentine Republic, supplementing the requirement of the professional signature by the appropriate intervention of the external auditor.

The Superintendence of Financial Institutions and Changes should report in a timely manner in the terms established by the regulation.

ARTICLE 8 Family group income. The debtor shall accompany an affidavit that credits the income of the family group.

Article 9 College of Comptroller. In all cases of articles 7 and 8 of this Act, the national executive branch, through the agencies that determine the regulation, may conduct any audits in order to verify the accuracy and consistency of the data contained in the respective declarations.

ARTICLE 10. Sanctions. The falsification or concealment of any data contained in the documentation set out in the preceding articles shall be subject to the perpetrators of criminal proceedings or other sanctions, provided for in special application regimes, which may correspond.

In addition, and with respect to the intervening professionals, the conduct shall be communicated to the respective collegiate entity.

ARTICLE 11. Instruments to subscribe. The executive branch shall determine the instruments to be signed by the debtors for the purposes of the subrogation provided for in article 16 (j), as well as the procedure for the implementation of the system established by this Act.

(Article replaced by Article 1 of the Act No. 25,908 B.O. 13/7/2004)

CHAPTER II - Trust

ARTICLE 12. Creation. Consider the FIDEICOMISO FOR HIPOTECARIAN REFINANCIATION, which shall be governed by this law and its regulation, resulting in subsidiary application of the provisions of Law No. 24,441 and its amendments.

ARTICLE 13. Object. The Trust is intended to implement the Refinancing System implemented by this law and its regulation.

ARTICLE 14. Organization. The national executive branch shall designate the trustee in a whole in accordance with the requirements of Act No. 24,441 and its amendments, and shall be entitled to determine the integration of the assets of the trustee.

ARTICLE 15. Delegation. Authorize the national executive branch to establish the participation in the present system of the FIDUCIARY FUND FOR THE RECONSTRUCTION OF COMPANIES, created by Decree No. 342 of 18 April 2000 and its amendments.

CHAPTER III - System Instrumentation

ARTICLE 16. System Instrumentation. For the purposes of the implementation of the system created by this law, the following mechanism will be followed:

(a) The trustee will consider the eligibility of the mutual respect for which the option provided for in article 6 has been exercised, and shall declare its admissibility or not within forty-five (45) days from the exercise of the option. In the event of the trust ' s silence at the end of the deadline, the mutual has been accepted into the system;

(b) Once the eligible mutual is declared admissible, the trustee shall sign with the debtor the instruments provided for in article 11, thereby improving the implementation of the system;

(c) In the event of pending a process of foreclosure against the debtor, by default in the performance of the eligible mutual, the accreditation in the file of the exercise of the option provided for in Article 6 shall not suspend the course of the proceedings, but shall limit the effects of the remate sentence to:

I. The determination of the origin or not of the executive judgment.

II. The final settlement of the required debt, including capital, interests and costs, for the purposes of item (g). Interests to apply may not exceed the average passive interest rate in pesos published by the Central Bank of the Argentine Republic, or the agreed rate, if any.

Compliance with the final judgement may only be continued if the trustee does not consider the mutual admissible, which must be notified to the relevant court. In the event that the non-admissibility of the mutual has not been notified within ten (10) days after the period established in point (a), the judge shall consider the mutual acceptance and order the trustee to sign the instruments that perfect the implementation of the system;

(d) In the event that the exercise of the option provided for in Article 6 is subsequent to the date on which the judgement of remate has been signed, and prior to the date of the auction, the performance of the judgement is suspended until the trustee notifies the non-admissibility of the mutual as set out in the previous point;

(e) If a foreclosure process is pending, by default in the performance of the eligible mutual, conducted in accordance with Title V of Law 24.441, the debtor may credit the exercise of the option at any stage of the proceedings, and the judge shall order the interim suspension of the release or the auction until the trustee notifies the non-admissibility of the mutual as set out in item c);

(f) Accredited in the file the improvement of the implementation of the system, the trustee will proceed to make the payments according to the following point, without prejudice to the rights of the creditor according to point k. The judge shall have the completion of the proceedings and the filing of the proceedings upon the termination of the eligible mutual debtor;

(g) The trustee will proceed to update the eligible mutuals, for which purpose it will cancel the unpaid arrears from the arrears to the date of such payment, plus the interest settled in accordance with item (c) II. For the purposes of payment, the trustee may issue financial instruments in accordance with applicable rules.

In addition, the trustee shall cancel the expenses and fees determined by the award of auction pursuant to item (c);

(h) The trustee, in respect of the creditor, will henceforth observe the original conditions of the mutual, without prejudice to the applicable rules in the area of updating coefficient and interest rate;

(i) The trustee shall restructure the aggressions in accordance with the terms set forth in article 17 of this law;

(j) The payments made by the trustee to the creditor shall have all the effects of the legal subrogation, transferring all the rights, actions and guarantees of the creditor to the trustee, both against the principal debtor and its co-deputies. The provisions of the Civil Code regarding subrogation shall be supplemented;

(k) The creditor party shall maintain the royal right to mortgage for the portion not yet replaced by the trustee in accordance with this article;

(l) The debtor shall proceed to cancel its obligation by payment to the trustee in accordance with the provisions set out in subparagraph (i) of this article, being freed from such obligations.

The only releasing payments of the debtor will be those made to the trustee, so the real mortgage right will remain to the full satisfaction of the amount owed.

In no case shall the payments made by the trustee to the creditor exceed the current market value of the property subject to the security right, as reported in accordance with article 7 (d) of this law.

(Article replaced by Article 2 of the Act No. 25,908 B.O. 13/7/2004)

(Note Infoleg: By art. 1 Decree No. 1342/2004 B.O. 4/10/2004 is established for the purposes of the provisions of subparagraph (a) and the last paragraph of subparagraph (c), both of this Article, which shall be considered as a single date from which the time limits established to consider admissibility in the Hypotecrian Refinancing System shall begin, on the day the time limit for the exercise of the option of entry to the said System, as provided for in the last paragraph of Article 6).

ARTICLE 17. Refinancing. The national executive branch shall establish the conditions for the cancellation of mutuals eligible to the trustee, in accordance with the following general guidelines:

(a) In all cases, the debtor shall be granted a period of grace of UN (1) year, which is extended from the validity of the regulation of this law.

Without prejudice to the above, if the severity of the socio-economic situation of the debtor so determined, additional time limits may be granted as an exception.

If it is the grace period or, if any, the additional time limits, the debtor shall begin, without exception, to cancel the debt with the trustee;

(b) Monthly, equal and consecutive fixed fee;

(c) Minimum value of the quota equivalent to a percentage of the eligible mutual;

(d) Quota compatible with the income of the family group and with the updated value of the property as reported in accordance with article 7 (d) of this Act;

(e) Interest rate and updating coefficient applicable in accordance with current regulations.

CHAPTER IV - Effects

ARTICLE 18. Very personal nature of refinancing. Prior to the transmission of the real mortgage right seat, the remaining refinancing balance must be cancelled to the trustee.

ARTICLE 19. Absolute zero. An absolute nullity is any convention between creditor and debtor that extends or generates new obligations to the latter in relation to the eligible mutual subject of refinancing.

ARTICLE 20. Novation absence. The alterations in respect of the time, place or manner of compliance that are subject to the primitive obligation as a result of the application of the provisions contained in this Act shall be regarded as modifying only the obligation, but not as extinction or as novation.

ARTICLE 21. Effects of non-compliance. The only non-compliance of the debtor party of THREE (3) consecutive or CINCO quotas (5) emerging alternate quotas of this Refinancing System shall be entitled to the execution of the mortgage.

ARTICLE 22. Special privilege. The trustee shall have special privilege for up to the concurrence of the amounts he would have paid in subrogation to the original creditor.

CHAPTER V - Of the Mortuos Hipotecarios contracted prior to the validity of the Law of Convertibility.

ARTICLE 23. Restructuring unit. A Restructuring Unit shall be established for the purpose of the analysis and proposal for the restructuring of the totality of the mutual mortgages agreed between the awardees and the former National Mortgage Bank, as set out in article 2 of the present Act and concluded prior to the validity of the convertibility of the austral provided for in Act No. 23.928, in accordance with the guidelines set out in the regulation for which the present period shall not govern.

The Restructuring Unit in the fulfilment of its object shall interpret the application of the public emergency policy set in social, economic, administrative, financial and would change as stated by Law No. 25,561, its amendments, supplements, extensions and clarifications, including this law, its amendments and extensions.

The aforementioned Unit shall operate within the Ministry of Economy and Production, and shall be composed of UN (1) representative of the precited Ministry to exercise the Presidency, UN (1) representative of the Ministry of Justice and Human Rights, UN (1) representative of the Honorable Chamber of Deputies of the Nation, UN (1) representative of the Honorable House of Senators of the Nation, UN (1) representative of the Hipotecario Sociedad Anónima and UN (1) representative of the National Deuters Associations.

Members of the Unit shall exercise their functions as "ad honorem".

He'll run his own operating rules. As long as it does not, the Chamber of Deputies of the Nation will be governed in the articles on the functioning of the permanent commissions.

At the time of issuance of the Unit, it should consider: the mutual origin; the applied interests and penalties of any kind; the expiry clauses of the deadlines; anatocism; payments, payments to account and all other forms thereof, and other circumstances that are relevant to the determination of the mandated restructuring.

The Restructuring Unit will evaluate each of the original mutuals mentioned in this article, its novices and/or restructurings, produced by legal norms or by agreement of parties.

It will determine an updated state of debt in each contract, based on indexes that will be applied homogeneously on the loan and on each share of capital, from the day of the original contract to the date of sanction of this law.

The same procedure will apply to the payment of interest to determine the payment in homogeneous currency.

The indexes of evolution of the salary and of the construction published by the INDEC will be used.

The debt thus recalculated that best holds the debtor position, will be compared to the amount claimed by the creditor entity for the sole purpose of determining its reasonableness.

Assessed to be all cases, and when a party agreement is not reached, the Restructuring Unit will elevate to the National Congress a definitive proposal that may include removals, payment of quotas or subsidies.

As long as the Restructuring Unit is not issued with respect to the established provisions, the mutual mortgages involved cannot be executed and the delay will not accrue compensatory or punitive interests, or expenses incurred by the debtor, as the present is declared in public order.

In the event of the transfer of any of the credits obtained by this law, they shall continue to be affected by the conditions established by this law.

This affectation must be faithfully communicated to the eventual assignee.

(Article replaced by Article 1 of the Act No. 26.177 B.O. 13/12/2006). (Note Infoleg: by art. 1 Act No. 26.262 B.O. 13/6/2007 is extended by the period of NOVENTA (90) working days, from its expiry the period referred to in Article 1 of the Act No. 26.177.)

CHAPTER VI - Complementary provisions

ARTICLE 24. The provisions of this Act do not preclude the powers granted to the creditor to agree directly with its debtor, in accordance with article 11 of Act No. 25.561.

ARTICLE 25. The national executive branch, through the Ministry of Economy and Production, shall be the Authority for the Application of this Law, having the authority to issue regulatory, complementary and clarification rules.

ARTICLE 26. Invite the Provinces and the Autonomous City of Buenos Aires to adhere to this System, dictating for its purposes the relevant regulatory bodies to similarly resolve the situations they maintain with their respective provincial housing institutes or the Municipal Housing Commission, as appropriate.

ARTICLE 27. This law will begin to govern from the day after its publication in the Official Gazette.

ARTICLE 28. Contact the Executive.

IN THE SESSION OF THE ARGENTINE CONGRESS, IN GOOD AIRES, TO THE DIASS OF THE MONTH OF NOVEMBER OF THE YEAR DOS MIL TRES.

_

EDUARDO O. CHANGE. . JOSE L. GIOJA. . Carlos G. Freytes. . Juan Estrada.