Legal Protection For Third-Party Mortgage Owners in Bank Credit Disputes

Abstract

This study aims to analyze the legal certainty and legal consequences for third-party non-debtor mortgage owners, forms of legal protection, the boundary of BPSK authority, and effective dispute resolution mechanisms. The legal issue stems from banking actions that directly collected personal cash installments from a third-party guarantor following default and the death of the primary debtor. This resulted in the annulment of the BPSK award by the Ciamis District Court due to absolute incompetence without examining the merits of the case, creating a legal deadlock. This research employs normative legal research with statutory, case (Decision No. 15/Pdt.Sus-BPSK/2025/PN Cms), and conceptual approaches. The results show a strict separation between personal debt (schuld) and collateral liability (haftung), where a third-party non-debtor guarantor only bears limited in rem liability up to the collateral value. Personal in personam collection by the bank violates the privity of contract principle (Article 1340 Civil Code) and constitutes a Tort/Perbuatan Melawan Hukum (Article 1365 Civil Code). Preventive protection is mandated through standard clause oversight and transparency (OJK Regulation No. 6/2022). Represive protection is realized through the right to reject personal demands, benefit of excussion (Article 1831 Civil Code), restitution for undue payment (indebiti solutio - Article 1359 Civil Code), subrogation/recourse rights (Articles 1400 jo. 1840 Civil Code), and transparency of auction surplus. BPSK's handling of mortgage disputes is ultra vires and contradicts Supreme Court Circular (SEMA) No. 1/2017. To resolve the legal deadlock, the most effective legal protection mechanism for third parties is direct litigation in the District Court via a Tort Lawsuit (PMH) or Third-Party Resistance (Derdenverzet).