A sample statement of claim to the court for writing off the amount of remuneration and penalties
Attention! The Law and Law Law Company draws your attention to the fact that this document is basic and does not always meet the requirements of a specific situation. Our lawyers are ready to assist you in drafting any legal document that suits your situation. For more information, please contact lawyer Kenesbek Islam by phone.; +7 (708) 971-78-58; +7 (727) 971-78-58.
To the Medeu District Court of Almaty
The plaintiff: ___________________ IIN ______________ address: _________________
Proxy representative: Law and Law Law Company LLP
BIN 190240029071 Almaty, 50 Zhibek Zholy ave., office 202,
Business center Quarter info@zakonpravo.kz / www.zakonpravo.kz
+ 7 727 978 5755; +7 700 978 5755
Respondent: LLP "______________" BIN ______________ address: _________________
Statement of claim
about debiting the amount of remuneration and penalties
___ March 20__ of the year between LLP "______________" ( next is the Defendant) and __________________ ( hereinafter referred to as the Plaintiff) a Loan Agreement was signed No. ___________ ( hereinafter referred to as the Agreement), according to which the latter was granted a loan in the amount of 100,000 tenge, for a period of 30 days, with a remuneration of 1% per day.
A sample statement of claim to the court for writing off the amount of remuneration and penalties
The Defendant transferred an amount of 100,000 tenge to the Plaintiff's account, which is confirmed by the submitted payment order.In accordance with Part 1 of Article 715 of the Civil Code, under a loan agreement, one party (the lender) transfers, and in cases stipulated by the Civil Code or the agreement, undertakes to transfer ownership (economic management, operational management) to the other party (the borrower) money or things defined by generic characteristics., and the borrower undertakes to return the same amount of money or an equal number of items of the same kind and quality to the lender in a timely manner.Due to financial difficulties, the Plaintiff has not fulfilled its obligations to repay the loan item. As a result, the Defendant claims that the amount owed by the Plaintiff to him is 235,000 tenge, including the amount of the principal debt – 100,000 tenge, the amount of remuneration – 30,000 tenge, the amount of the fixed part of the penalty - 5,000 tenge, the amount of the penalty (fine) – 100,000 tenge.
The Defendant is currently demanding the immediate repayment of the entire amount owed.We would like to draw your attention to the fact that the Defendant's actions in this situation are unlawful for the following reasons:In accordance with paragraph 1 of Article 24 of the Law of the Republic of Kazakhstan "On Microfinance Organizations" (hereinafter – Law) legal entities that are not registered as microfinance organizations are not entitled to carry out business activities for the provision of microcredit.The defendant is not a microfinance organization, since according to paragraph 1 of Article 13 of the Law, the name of a microfinance organization must necessarily contain the words "microfinance organization". The register of microfinance organizations that have been registered is posted on the authorized body's Internet resource. It follows from the list posted on the website of the National Bank of the Republic of Kazakhstan that the Defendant did not register as a microfinance organization.
Also, the provision of a loan with payment of remuneration refers to banking operations, in accordance with Article 30 of the Law of the Republic of Kazakhstan "On Banks and Banking Activities", this type of activity is subject to licensing in accordance with the Rules for Licensing banking operations carried out by organizations engaged in certain types of banking operations, approved by the Resolution of the Board of the Agency of the Republic of Kazakhstan for Regulation and Supervision of the Financial Market and Financial Institutions. organizations dated June 25, 2007 No. 168.Thus, the Defendant does not belong to the organizations., which have the right to provide micro-loans and carry out certain types of banking operations.According to Part 2 of Article 718 of the Civil Code, the protection of the rights of borrowers of banks, organizations engaged in certain types of banking operations, microfinance organizations and credit partnerships is ensured by setting the maximum amount of the annual effective remuneration rate, including remuneration, all types of commissions and other payments charged by the lender in connection with the issuance and servicing of the loan, and calculated in accordance with determined by the legislation of the Republic of Kazakhstan.
At the same time, in accordance with paragraph 1 of Resolution No. 377 of the Board of the National Bank of the Republic of Kazakhstan dated December 24, 2012, the maximum annual effective interest rate (ERR) on bank loans, micro-loans, loans provided by second-tier banks, organizations engaged in certain types of banking operations, microfinance and micro-credit organizations and credit partnerships was approved, in particular the amount of 56%.Under such circumstances, considering that
The defendant provided the loan in the framework of business activities without registration, the demand for a refund of remuneration and penalties is unlawful. Thus, the Plaintiff must repay only the amount of the loan received in the amount of 100,000 tenge.By virtue of Part 2 of Article 13 of the Constitution of the Republic of Kazakhstan, everyone has the right to judicial protection of their rights and freedoms.In accordance with Part 1 of article.8 of the CPC RK, everyone has the right, in accordance with the procedure established by this Code, to apply to the court for protection of violated or disputed rights, freedoms or legitimate interests.
According to Part 1 of Article 14 of the International Covenant on Civil and Political Rights (done in New York on 12/16/1966 and ratified by the Law of the Republic of Kazakhstan dated 11/28/2005 No. 91), all persons are equal before the courts, everyone has the right, when determining his rights and obligations in any civil process, to a fair and public hearing by a competent, an independent and impartial court established by law.Based on the above,
I ask the Court:
Invalidate clause 2.1 of the Loan Agreement № ___________ from _________ of the year concluded between the LLP "______________" and gr. ___________________.
Invalidate clause 5.2 of the Loan Agreement № ___________ from _________ of the year concluded between the LLP "______________" and gr. ___________________.
Sincerely, General Director of Law Company Law and Law LLP" ________/ Kayshybekov M.E.
Attention!
Law and Law Law Law draws your attention to the fact that this document is basic and does not always meet the requirements of a particular situation. Our lawyers are ready to assist you in legal advice, drawing up any legal document suitable for your situation.
For more information, please contact a Lawyer / Attorney by phone: +7 (708) 971-78-58; +7 (700) 978 5755, +7 (700) 978 5085.
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