An example of a response to a claim for debt recovery
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To the Pavlodar City Court Judge _____________________
Republic of Kazakhstan, Pavlodar region, Pavlodar, _________________
from the Defendant: _____________________ IIN: __________________ city of Almaty, ___________________ + 7 ________________.
Proxy representative: Galymzhan Turlybekovich Sarzhanov
IIN: 850722301036. Almaty, Medeu district,050002, Zhibek Zholy ave., 50, office 202,
Business center Quarter. info@zakonpravo.kz / www.zakonpravo.kz + 7 (708) 578 57 58.
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to file a claim for debt recovery
Is there a civil case in your case? № ________________ from __.02.20__ of the year according to the claim of the LLP "_______________" ( further – the Plaintiff) to ____________________ ( hereinafter referred to as the Defendant) on the recovery of the amount owed under the Microcredit Agreement No. Ec___________________ dated __.05.20__ (hereinafter referred to as the Agreement).With the claim of the LLP "_____________________" We partially disagree on the following grounds.As the loan's credit history shows, due to financial difficulties, namely the loss of his job, the Defendant was forced to terminate his obligations under the Contract. But, despite financial difficulties, he did not refuse to fulfill his obligations, the Defendant repeatedly applied to the LLP. "_____________________" with a request for a postponement of the fulfillment of obligations under the Agreement, or the provision of any preferential conditions, in hoping to resolve the current situation in a pre-trial manner. However, the Plaintiff refused all requests. In fact, it turned out that after a difficult financial period for himself, during which the Defendant was unable to pay monthly dues on the microcredit, the Plaintiff placed the Defendant in bonded conditions, delaying the appeal to the court, accruing remuneration and increasing the amount of penalties.In accordance with Part 3 of Article 365 of the Civil Code of the Republic of Kazakhstan, the debtor is not considered overdue until the obligation cannot be fulfilled due to the delay of the creditor.In accordance with Part 1 of art. 359 of the Civil Code of the Republic of Kazakhstan, the debtor is responsible for non-fulfillment and (or) improper fulfillment of obligations in the presence of fault, unless otherwise provided by law or contract. The debtor is found innocent if he proves that he has taken all measures in his power to properly fulfill the obligation.Also, in accordance with paragraph 1 of Article 364 of the Civil Code of the Republic of Kazakhstan, if non-fulfillment or improper fulfillment of obligations occurred due to the fault of both
of the parties, the court accordingly reduces the amount of liability of the debtor.In the article "_____________________" dated __ February 20__, written by such prominent statesmen as: _____________________, former Chairman of the Supreme Court of the Republic of Kazakhstan and _____________________. judge of the Supreme Court of the Republic of Kazakhstan, it says that - QUOTE: " ... banks, microfinance and lending organizations do not submit timely demands to the court to recover from the borrower the amount owed on the principal debt, remuneration (interest), as a result of which the amounts of penalties (penalties) to be collected are deliberately increased, which ultimately leads to an increase in the amount of total debt and foreclosure on collateral property, the value of which is disproportionate to the loan received."We believe that the employees of the LLP "_____________________", They deliberately delayed going to court, in order to plunge the borrower into larger debts.The plaintiff refers to art. 272 of the Civil Code of the Republic of Kazakhstan, which states that the obligation must be performed properly in accordance with the terms of the obligation and the requirements of the law, and in the absence of such conditions and requirements - in accordance with business practices or other commonly imposed requirements.
However, the Plaintiff himself does not comply with the requirements of the legislation in full, which raises doubts about the conscientious fulfillment of obligations.359 of the Civil Code of the Republic of Kazakhstan, the debtor is responsible for non-fulfillment and (or) improper fulfillment of obligations in the presence of guilt, unless otherwise provided by law or contract. The debtor is found innocent if he proves that he has taken all measures in his power to properly fulfill the obligation.According to clause 3. art. 366 of the Civil Code of the Republic of Kazakhstan, according to a monetary obligation, the debtor is not obliged to pay remuneration (interest) for the time of the creditor's delay.According to Article 5 of the Civil Code of the Republic of Kazakhstan, in cases where the relations provided for in paragraphs 1 and 2 of Article 1 of this Code are not directly regulated by legislation or agreement of the parties and there are no customs applicable to them, the norms of civil legislation governing similar relations (analogy of the law) apply to such relations, since this does not contradict their essence. If it is impossible to use the analogy of law in these cases, the rights and obligations of the parties are determined based on the general principles and meaning of civil legislation and the requirements of good faith, reasonableness and fairness (analogy of law). Thus, according to art. 36 of the Law of the Republic of Kazakhstan "On Banks and Banking Activities in the Republic of Kazakhstan", If there is a delay in fulfilling obligations under a bank loan agreement, but no later than thirty calendar days from the date of its occurrence, the bank (an organization engaged in certain types of banking operations) is obliged to notify the borrower in the manner and within the time limits stipulated in the bank loan agreement, about: 1) the need to make payments under the bank loan agreement, indicating the amount of overdue debt; 2) the consequences of the borrower's failure to fulfill its obligations under the bank loan agreement.
Regarding the accrued remuneration for the use of a loan (microcredit) in the amount of 44,340 tenge, we disagree on the following grounds.As follows from the specified debt calculation, the amount of remuneration was calculated by the plaintiff for the period from __.05.20__ to __.05.20__, at the rate of 0.15% per day of the principal amount, whereas according to clause 1.5 of the contract, the term of the microcredit is determined to __.11.20__, after which the accrual of remuneration is not allowed, since, by virtue of art.718 of the Civil Code, remuneration under the loan agreement is paid for the use of the loan. At the same time, the remuneration payment period runs within the term of the microcredit agreement, and remuneration for the amount of the microcredit expires simultaneously with the expiration of the term of the microcredit. From the above, it follows that after the expiration of the loan (micro-loan), remuneration was accrued unlawfully, and therefore, the claim in this part should be partially satisfied by collecting remuneration within the terms of the micro-loan and in accordance with the payment schedule to the Agreement in the amount of 6593.36 tenge.We do not agree with the accrued penalty, since this amount of penalty is excessively large compared to the creditor's losses, whereas according to art. 35 of the Law "On Banks and Banking Activities", the amount of the penalty (fine, penalty) for violating the obligation to repay the loan amount and (or) pay remuneration under a bank loan agreement concluded with an individual may not exceed 0.5 percent of the overdue payment amount for each day of delay, after ninety days of delay. ninety days of delay may not exceed 0.03 percent of the overdue payment amount for each day of delay, but not more than ten percent of the loan amount for each year of the bank loan agreement. As we see P. 6.3 The Agreement contradicts the legislation of the Republic of Kazakhstan. Thus, the amount of accrued interest on this microcredit should not exceed 4,000 (four thousand) tenge for each year of the Agreement.Also, in the demand for early fulfillment of obligations, we do not agree with the above unreasonable amounts. In addition, after 40 days, the plaintiff already had the right to apply to the court with a claim for recovery of the debt. However, despite the fact that between the LLP "_____________________" Both oral and written correspondence was conducted by the Defendant, and the Plaintiff intentionally delayed the deadline for filing a lawsuit, thereby artificially inflating the amount.
the penalty due.According to art . 297 of the Civil Code of the Republic of Kazakhstan, if the amount of penalty payable is excessively large in comparison with the creditor's losses, the court has the right to reduce the penalty, taking into account the degree of fulfillment of obligations by the debtor and the debtor's interests that deserve attention, the court reduces the debtor's liability if the creditor intentionally or negligently contributed to an increase in the amount of losses caused by non-performance or improper performance, or did not take reasonable measures to reduce them.Universal Declaration of Human Rights (articles 7, 8 and 10), The International Covenant on Civil and Political Rights (article 14) and the Convention for the Protection of Human Rights and Fundamental Freedoms (article 6) establish that everyone is equal before the law and the court, and that everyone has the right to a fair and public hearing within a reasonable time by a competent, independent and impartial tribunal in determining their civil rights and obligations., created on the basis of the law.Based on the above, we believe that the amount of the Defendant's debt to the Plaintiff should be calculated in accordance with the principles of good faith, reasonableness and fairness., Therefore, it is necessary to take into account all the above circumstances.Based on the above, I ask the Court to take into account the difficult financial situation of the Defendant and the unreasonable inaction of the LLP "_____________________" for a long time, which led to an excessive increase in the amount of the penalty, and to make a decision in accordance with the principles of good faith, reasonableness and justice.
I ASK THE COURT:
The claim of the LLP "_____________________" to _____________________ on the recovery of the amount owed under the Contract – partially satisfy;
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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