A statement of claim to the court for declaring the micro loan agreement with the MKO MFO invalid and void
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To the Medeu District Court of Almaty, Almaty, Nusupbekov St./Turgenskaya, 34
Phone: +7 727 2333 13 13 From the Plaintiff: xxxxxxxxxxxx IIN xxxxxxxxxxxx
Almaty, xxxxxxxxxxxx street
Representative by proxy: Law Company Zakon i Pravo LLP
BIN 190240029071 Almaty, 79 Abylai Khan ave., office 304.
info@zakonpravo.kz / www.zakonpravo.kz + 7 727 978 5755; +7 700 978 57 55.
Defendant: Fincap LLP Fincap BIN xxxxxxxx
Almaty, 17/1 Al-Farabi Ave., Nurly Tau Business Center, block 5B, 12th floor, office 18.
210 Dostyk Street, Medeu district, Almaty. Defendant: Capvia LLP Capvia BIN xxxxxxxxxxxx
Almaty, 17/1 Al-Farabi Ave., Nurly Tau Business Center, block 5B, 12th floor, office 18.
Almaty city, Medeu district, Dostyk, 210. Almaty, Medeu district,
210 Dostyk Avenue, Office 2nd Block, 12th Floor
Statement of claim
on invalidation of the loan agreement
The plaintiff is a creative person: he draws, sews and does needlework, in fact, this is a small business on Instagram. Her clients often write to the Plaintiff asking about her works, respectively, the Plaintiff is used to when her IIN or bank account number is requested for payment for her goods. On October 15, 2019, a potential client wrote to the Plaintiff in the Whatsapp messenger, becoming interested in her product. The correspondence was standard, and at the end of the dialogue, the client began requesting the Plaintiff's IBAN account number to make a payment. The Plaintiff unknowingly wrote the IBAN account number, since the client claimed that he would pay by transfer from another bank account. Thus, after some time, the amount of 60,000 tenge was credited to the Plaintiff's account. Although the cost of the product was 13,000 tenge. After that, the potential client wrote via WhatsApp messenger, claiming that he had dropped 60,000 tenge by mistake and asked to transfer this amount to his account, but did not provide the account number for the transfer.
Further, the plaintiff, for her own persuasion, called the client requesting confirmation of the transfer made by him - an electronic check. However, after the Plaintiff's request to confirm the transfer, the potential client hung up the phone and blocked the Plaintiff's phone number. After the actions committed by the potential client, the plaintiff suspected that he was a fraudster. Later, the Plaintiff contacted Kaspi Bank to find out where this amount came from. Kaspi Bank provided the following response: that this amount was received from the account of the National Bank. Next, the Plaintiff contacted the People's Bank, where she received the following response: since the Plaintiff is not a customer of Halyk Bank, for confidentiality reasons, the Bank's employees were not allowed to provide information on the transfer, namely from which account the transfer was made and the account holder. Due to the refusal by the People's Bank and the inability to find out where and by whom the transfer was made, the Plaintiff stopped trying to find the sender of the money.
A statement of claim to the court for declaring the micro loan agreement with the MKO MFO invalid and void
On October 12, 2020, the Plaintiff received a warning notice from a Private bailiff in Almaty xxxxxx about appearing before a private bailiff, and also during a telephone conversation He informed that on the basis of Executive Inscription No. 107942 dated 08/20/2020 and Executive Inscription No. 137629 dated 08/25/2020 issued by a private notary xxxxxxxxxx from the Notary Chamber of the Karaganda region enforcement proceedings were initiated No.8941/20-75-4576 and no. 6874/20-75-4576 , where the Recoverers were Capvia LLP and Fincap LLP. As soon as the plaintiff found out that a loan agreement had been drawn up for her, she immediately applied to the State Department of the Medeu district of Almaty and wrote a statement on the fact of fraud, as evidenced by the Notification Coupon (stub) No. 207517035018295. To date, an investigation is underway and this case has been attached to other similar cases in the DP of the city of Almaty No. 207500031000513 dated April 03, 2020 under paragraph 4, part 2, art. 190 of the Criminal Code of the Republic of Kazakhstan. After that, the Plaintiff, perplexed, turned to Capvia LLP and Fincap LLP to clarify the loan agreement, which she did not know existed, and hoped that this Agreement was formed due to a system error. But the employees of these organizations confirmed that the Contract is not the result of any mistake, but is valid.
The Plaintiff was provided with the Contract in an electronic version via the Whatsapp messenger. To my great surprise, it turned out that on October 15, 2019, an online Loan Agreement was signed between xxxxxxxxxxxx and Fincap LLP, No. 277729001 (hereinafter referred to as the Agreement), according to which the Plaintiff was granted an online loan in the amount of 60,000 (sixty thousand) tenge, for a period of 30 (thirty) calendar days. According to clause 1.3 of the Agreement, the interest rate for using the loan is 0 tenge per day. At the same time, the annual effective remuneration rate is 0.00%. The total amount of remuneration for the entire term of the loan is 3420.00 (three thousand four hundred twenty) tenge. Also on October 15, 2019, gr,xxxx and Capvia LLP signed an Offer for the conclusion of a service agreement, under which the Customer undertakes to pay remuneration to the contractor in accordance with the procedure and on the terms stipulated in the Service Agreement. In accordance with clause 2.3 of the Contract for the provision of services for the loan extension service if it is impossible to pay the loan on time.
A statement of claim to the court for declaring the micro loan agreement with the MKO MFO invalid and void
The Contract specifies the mobile phone number xxxxxxxx, however, the number specified in the Contract is not the Plaintiff's phone number. Also, the e-mail - xxxxxx does not belong to the Plaintiff. The Plaintiff had not previously applied to the Defendant for a loan, and also had not been registered on the Defendant's official Internet resource. The phone number registered with the Plaintiff and used by the Plaintiff is xxxxxxxxxx According to art. 716. of the Civil Code of the Republic of Kazakhstan, the loan agreement must be concluded in a form consistent with the rules of Articles 151 - 152 of this Code. In addition, a loan agreement is recognized as concluded in proper written form also if there is a bond, a receipt from the borrower or another document certifying the transfer of a certain amount or a certain number of things to him by the lender. The plaintiff is ready to refund the amount that was transferred due to fraudulent actions of a potential client in the amount of 60,000 tenge.
Since receiving the contract, the Plaintiff has repeatedly negotiated with the Defendant's managers for the repayment of the amount received under online loan agreements, but the Defendant has presented the amount with penalties and remuneration due. 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 to the lender in a timely manner. or an equal number of items of the same kind and quality. 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 728 of the Civil Code of the Republic of Kazakhstan, when concluding a loan agreement, the lender is a bank or other legal entity licensed by an authorized state body to provide loans in cash.
A statement of claim to the court for declaring the micro loan agreement with the MKO MFO invalid and void
According to paragraph 5 of Article 1 of the Law of the Republic of Kazakhstan "On Microfinance Organizations", a microcredit is money provided by a microfinance organization to a borrower in the national currency of the Republic of Kazakhstan in the amount and in accordance with the procedure established by this Law, on the terms of payment, urgency and repayment. In accordance with paragraph 1 of Article 24 of the Law of the Republic of Kazakhstan "On Microfinance Organizations" (hereinafter referred to as the Law), legal entities that are not registered as microfinance organizations are not entitled to carry out business activities to provide micro–loans. 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.
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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