Legal Consequences for the Execution of Foreclosed Collateral (AYDA), Both for the Ownership of Collateral and for the Bank

Abstract

As a sharia financial institution that carries out the intermediation function, Islamic banking has a risk of financing problems. This problematic financing does not only have an impact on the low income as a business institution, and ultimately results in the soundness of the bank. Settlement of problem financing is always sought in an efficient and effective way, with a minimum level of legal risk. This settlement effort is certainly inseparable from the provisions of the Islamic banking law, the the mortgages Act and the regulations of the financial services authority. One of the efforts to resolve the problematic financing allowed by the sharia banking law, and the regulation of the financial services authority is the Foreclosed Collateral (AYDA), even though this effort is contrary to the provisions of the mortgages Act. The problems in this thesis are four, namely first, the process of binding financing that is burdened with mortgagerights at PT. Bank Syariah Bukopin, Bukittinggi Branch. Secondly, the debt settlement process in financing encumbered with Foreclosed Collateral(AYDA) at PT. Bank Syariah Bukopin, Bukittinggi Branch. Third, concerning the legal consequences of the Foreclosed Collateral (AYDA), both for the ownership of collateral and for the Bank. Fourth, regarding the realization of the sale of Foreclosed Collateral (AYDA). This thesis research uses a sociological juridical research method, which moves from the existence of norm conflicts between laws and regulations related to efforts to resolve problematic financing by means of Foreclosed Collateral (AYDA), including its implementation at PT. Bank Syariah Bukopin, Bukittinggi Branch. The approach in legal sociology research, using the legislative approach and implementation practices, is carried out by reviewing and analyzing regulations regarding AYDA and implementation and the legal consequences of AYDA implementation. The results of the study indicate that the implementation of the AYDA is contrary to the mortgages Act and has legal risks in the form of null and void. For this reason, it is recommended that the implementation of the AYDA be avoided and steps taken to adjust the applicable provisions. This is to avoid not only legal risk for banks and customers as executors of existing regulations, but also to ensure the certainty and effectiveness of the laws that apply in the Republic of Indonesia.