A successful case
Partial satisfaction recovery of the amount owed under the loan agreement
March 18, 2021 No.1942-21-2/55 Uzynagash village
On March 19, 2019, a loan agreement No. 265949002 was concluded between the plaintiff and the defendant, under the terms of which the borrower was granted a loan in the amount of 70,000 tenge, for a period of 10 days, with a repayment amount of 72,128 tenge and a maximum annual interest rate of 56% per annum was established.
On the same day, a service agreement was concluded between the plaintiff and defendant 2, according to which the contractor, on behalf of the customer, undertakes to provide scoring services, loan extensions and notifications to the customer in case of late payment of loan arrears.
Further, Fincap LLP ceded the rights of claim for repayment of the Defendant's loan debt in favor of gr. Zhagyparova Gulzhan Nurlankyzy., (Hereinafter Referred To As the Plaintiff). Thus, as of 02/24/2020, the Defendant's debt to the Plaintiff amounted to 87,022 tenge, of which: - The main debt is 70,000 tenge; - Remuneration 7,980 tenge; - penalty 9,042 tenge.
The court, having studied the materials provided by the parties, decided: To satisfy D.R.'s statement of claim. To invalidate the loan agreement No. 265949002 dated March 19, 2019, concluded between Fincap LLP and OTHERS. To invalidate the service agreement dated March 19, 2019, concluded between Capvia LLP and Rasul.
Partial satisfaction recovery of the amount owed under the loan agreement
Having disagreed with the court's decision to recover the amount of the debt, the defendant wrote to the court an Application for the cancellation of the court's decision taken in a simplified manner
According to Article 147 of the Civil Procedure Code of the Republic of Kazakhstan, the defendant has the right to file with the court that issued the decision in a simplified (written) procedure, an application for cancellation of this decision within five working days from the date of receipt of a copy of the court decision.
The application is filed if the defendant has not been properly notified of the receipt of the statement of claim and its consideration in a simplified (written) procedure and has not been able to provide feedback, as well as evidence that may affect the content of the decision.
An application for revocation of a decision shall be considered in accordance with the rules established by Chapter 21 of this Code, subject to the requirements provided for in part two of this Article. The decision may be appealed by the parties or appealed by the prosecutor on appeal after the deadline for filing an application for revocation of this decision has expired, and if the application has been filed, within one month after the court issued a ruling rejecting this application.
Motivating its claims before the court on December 23, 2020, the Zhambyl District Court of the Almaty region, chaired by Judge Kiekbaeva N.M., considered in simplified (written) proceedings the civil case No.1942-20-00-2/1278 on the claim of Zhagyparova Gulzhan Nurlankyzy (hereinafter referred to as the Plaintiff) to D.R.U. (hereinafter referred to as the Defendant) for the recovery of the amount arrears,
I DECIDED: To satisfy the claims of Zhagyparova Gulzhan Nurlankyzy to the Doctor of Agriculture for the recovery of the amount owed. To collect from the Doctor of Medical Sciences in favor of Zhagyparova Gulzhan Nurlankyzy the amount of debt in the amount of 70,000 tenge, the costs of paying for the assistance of a representative of 7,000 tenge and the payment of a state fee in the amount of 700 tenge.
In this court session, the defendant did not know, had never received notifications about upcoming court sessions, and was thus deprived of the opportunity to provide his reasoned objections.
I learned about the court's decision on December 28, 2020. Thus, I did not have the opportunity to get acquainted with the subject of the statement of claim, the nature and size of the plaintiff's claims and collect the necessary materials to protect my interests, since the decision of the Zhambyl District Court of the Almaty region affects the interests of the defendant.
In accordance with Part 3 of Article 146 of the Civil Procedure Code of the Republic of Kazakhstan, the Court notifies the parties, sets a deadline within fifteen working days for the defendant to submit a response (objection) to the statement of claim, accompanied by documents and evidence that substantiate it.
Partial satisfaction recovery of the amount owed under the loan agreement
According to Part 1 of Article 147 of the Civil Procedure Code of the Republic of Kazakhstan, copies of the court decision are sent to the parties using means of communication that record its receipt, or are issued no later than five working days from the date of the final decision.
It should be noted that the Defendant intends to implement a mediation agreement with the Bank, and based on this, an application was submitted to the Plaintiff for the conclusion of a mediation agreement.
On the basis of the above and in accordance with art. 147 of the CPC RK, They asked the Court:
To cancel the decision of the Zhambyl District Court of the Almaty region dated December 23, 2020 on the claim of Zhagyparova Gulzhan Nurlankyzy to Rasul to recover the amount of debt; To resume consideration of the case on the merits. In addition, Fincap LLP did not have the right to assign the Loan Agreement to gr. Zhagyparova Gulzhan Nurlankyzy.
The loan agreement concluded between the Plaintiff and the Defendant does not comply with the requirements of paragraph 1 of Article 725-1 of the Civil Code. Also, the amount of remuneration and penalties does not meet the requirements of art.725-1 of the Civil Code. As well as the provision of a loan with payment of remuneration refers to banking operations, this type of activity is subject to licensing.
Thus, LLP "..." actually carries out professional activities in the financial services market through online lending, but does not have an appropriate license and is not a proper subject of this activity.
In accordance with Article 4 of the Law of the Republic of Kazakhstan "On State Regulation, Control and Supervision of the Financial Market and Financial Organizations", persons who do not have an appropriate license issued in accordance with the legislation of the Republic of Kazakhstan are not allowed to carry out professional activities in the financial market.
It follows from the list posted on the website of the National Bank of the Republic of Kazakhstan that Fincap LLP was not registered as a microfinance organization. Meanwhile, persons not listed in clause 8, clause 2, Article 30 of the Law "On Banks and Banking Activities in the Republic of Kazakhstan", paragraph 53 of Appendix 1 of the Law "On Permits and Notifications", paragraph 7 of Article 1 of the Law "On Microfinance Organizations" are not entitled to carry out bank loan operations, as well as to provide micro-loans without obtaining the necessary permission.
It follows from the above that Fincap LLP does not belong to organizations that have the right to provide micro-loans and (or) carry out certain types of banking operations.
From the content of paragraph 3 of Article 715, citizens and legal entities are prohibited from attracting money in the form of loans from citizens as an entrepreneurial activity, and such agreements are void. Thus, the loan agreement concluded between Fincap LLP (Fincap) and under such circumstances, we consider the loan agreement to be invalid (void).
In accordance with Clause 3 of Article 157-1 of the Civil Code of the Republic of Kazakhstan, if the transaction is invalid, each party is obliged to return to the other everything received under the transaction, and if it is impossible to return in kind (including when the received is expressed in the use of property, work performed or services provided), reimburse the value of the returned property.
Partial satisfaction recovery of the amount owed under the loan agreement
By virtue of clause 1 of Article 382 of the Civil Code of the Republic of Kazakhstan, the terms of the contract are determined at the discretion of the parties, except in cases where the content of the relevant condition is prescribed by law. The court DECIDED: To partially satisfy the claim of Zhagyparova Gulzhan Nurlankyzy to the Doctor of Agriculture for the recovery of the amount owed.
To collect from the Doctor of Medical Sciences in favor of Zhagyparova Gulzhan Nurlankyz the amount of debt in the amount of 10,241 tenge, the costs of paying for the assistance of a representative in the amount of 1,024 (one thousand twenty-four) tenge and the costs of paying the state duty in the amount of 308 (three hundred eight) tenge. The rest should be rejected.
Thus, the amount of the principal debt owed to the plaintiff was refunded, taking into account the payment made.
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