Appeal against the decision of the CSI | Challenging the amount of payment for the activities of the CSI | Complaint against the actions of the CSI

On April 02, 2019, the Medeu District Court of Almaty considered in open court the civil case on the application: KKK his representative Sarzhanov G.T. in relation to the Private bailiff of Almaty TT.S. with the requirements: 1. To recognize as illegal the actions of a private bailiff TT.S. on the issuance of a resolution dated 12.02.2019 on the approval of the amount of payment for the activities of a private bailiff. Thus, the applicant KK.K. appealed to the court with the above complaint, arguing that the private bailiff TT.S. Enforcement proceedings No. 47-18-A-382 dated 26.02.2018 were initiated. on recovery from KK.K., BA.B., O.K. jointly and severally in favor of JSC "Bank Center Credit" the amount of debt in the amount of 41,844,491 tenge. As part of the enforcement proceedings, all movable and immovable assets of debtors, as well as funds held in second-tier banks, were seized. On 02/06/2019, the enforcement proceedings were terminated due to the court's approval of an agreement on the settlement of a dispute (conflict) through mediation by the parties to the enforcement proceedings during the execution of the court decision. 12.02.2019 A private bailiff issued a resolution approving the amounts of payment for the enforcement actions performed, according to which the amount of 2,092,225 tenge was approved. The debtor considers the actions of the bailiff to make the said decision illegal, as they were committed in violation of the norms of current legislation. At the court hearing, the applicant's representative, Sarzhanov G.T., supported the arguments of the complaint and asked the court to satisfy the complaint. Private bailiff TT.S. At the hearing, he did not recognize the arguments of the complaint, and asked to dismiss the complaint for the reasons stated in the response. A third party who does not make independent claims on the subject of the dispute is the recoverer of Bank Center Credit JSC - RF. I left the consideration of the complaint to the discretion of the court. The court, having heard the explanations of the participants in the process, having studied the case materials, the materials of the enforcement proceedings, came to the following conclusion. It follows from the content of article 72 of the Civil Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the CPC) that each party must prove the circumstances to which it refers as the grounds for its claims and objections. According to part 2 of Article 224 of the CPC, the court bases its decision only on the evidence that was examined at the court session.

Appeal against the decision of the CSI | Challenging the amount of payment for the activities of the CSI | Complaint against the actions of the CSI

Everyone has the right, in accordance with the procedure established by this Code, to apply to the court for protection of violated or disputed constitutional rights, freedoms or legally protected interests. State bodies, legal entities or citizens have the right to apply to the court for the protection of the rights and legally protected interests of other persons or an indefinite circle of persons in cases provided for by law (Part 1 of Article 8 of the CPC). In accordance with art . 250 of the CPC, a complaint may be filed against the actions (inaction) of the bailiff to execute enforcement documents, including challenging tenders, during enforcement proceedings or against the refusal to commit such actions by the recoverer or debtor. The complaint is filed with the district (city) court of the territorial area served by the bailiff or at the place of registration of a private bailiff within ten working days from the date of the action (refusal to perform the action) or from the day when the recoverer or debtor, who was not notified of the time and place of the action by the bailiff, became aware of it. The complaint is filed at the place where the enforcement actions were performed if the territorial area served by the bailiff or the place of registration of a private bailiff are located in the same locality as the place where the enforcement actions were performed. A preliminary appeal to higher authorities and to a higher official in the order of subordination does not prevent the filing of a complaint to the court. It follows from the case file that the decision of the district court No. 2 of Almaly district of Almaty dated 02/15/2017 the claims of Bank Center Credit JSC were satisfied, it was decided: to collect in solidarity with KK.K., BA.B., OA.K. in favor of Bank Center Credit JSC, the amount of debt in the amount of 40,625,720 tenge was collected, in a shared manner the amount of the state fee in the amount of 1,218,772 tenge.

Upon the entry into force of the court's decision, a writ of execution was issued and sent for enforcement. By virtue of paragraph 1 of Article 37 of the Law of the Republic of Kazakhstan "On Enforcement Proceedings and the Status of Bailiffs" (hereinafter referred to as the Law), the bailiff initiates enforcement proceedings on the basis of an enforcement document at the request of the claimant. On 27.02.2018, the private bailiff of the executive district of Almaty Tulebaev T.S. initiated enforcement proceedings No.47/18-75-382 . During the execution of the court's decision, the parties to the enforcement proceedings concluded an agreement on the settlement of the dispute (conflict) through mediation and by the ruling of the District Court No. 2 of Almaly district of Almaty dated 22.01.2019, the said agreement was approved by the court. On 02/06/2019, a private bailiff issued a decision to terminate the enforcement proceedings, in connection with the conclusion of a mediation agreement by the parties to the enforcement proceedings. Next, 12.02.2019 the bailiff issued a resolution approving the amount of payment for the activities of a private bailiff, according to which the amount of payment for the activities of a private bailiff was approved in the amount of 2,092,225 tenge, which is subject to recovery jointly with KK.K., BA.B., OA.K. The applicant does not agree with this resolution, considers it unjustified and subject to cancellation, since it does not comply with the norms of current legislation and violates his rights and legitimate interests. These arguments of the applicant are justified on the following grounds. By virtue of paragraph 1 of Article 118 of the Law of the Republic of Kazakhstan "On Enforcement Proceedings and the Status of Bailiffs" (hereinafter referred to as the Law), payment for the activities of a private bailiff is made from funds recovered from the debtor and is set at three to twenty-five percent, depending on the category of cases and the amount of the penalty, with the establishment of maximum amounts not exceeding more than ten thousand monthly calculations. According to non-property enforcement documents, the payment for the activities of a private bailiff is set in monthly calculation indices. At the same time, paragraph 2 of Article 118 of the Law stipulates that payment for the activities of a private bailiff is made only in the case of full or partial execution of the enforcement document. If the enforcement document of a property nature, the agreement on the amount of payment for the activities of the Civil Protection Agency, is partially executed, then only a part of the payment for its activities is paid to the private bailiff, in proportion to the amount recovered or the value of the property. In addition, P. 17 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan "On the application by courts of certain norms of legislation on enforcement proceedings" clarified that full enforcement should be understood as the execution of a writ of execution in full during its stay in the proceedings of the bailiff. Based on this, the actions of the bailiff to take measures to ensure the execution of the enforcement document specified in article 32 of the Law, as well as the measures taken to sell the described and seized property, to foreclose on the debtor's wages and other income, on property held by other persons, should be considered as measures of full enforcement. In this case, the study of the enforcement proceedings materials showed that the private bailiff had not carried out full or partial enforcement of the court until the termination of the enforcement proceedings in connection with the approval of the mediation agreement pursuant to the above-mentioned court decision, and no funds had been recovered in favor of the recoverer. In this regard, the requirement of the bailiff to approve the amount of payment for the bailiff's activities in the amount of 2,092,225 tenge is inconsistent with the above-mentioned norm of the current legislation. Thus, the actions of a private bailiff in issuing the contested decision contradict the norms of current legislation.

In accordance with paragraph 3 of Article 250 of the Civil Procedure Code of the Republic of Kazakhstan, the court, having recognized the complaint as justified, decides to recognize the actions (inaction) of the bailiff as illegal and obliges him to eliminate the violation in full or restore the violated rights, freedoms or legitimate interests of the recoverer or debtor in another way. In these circumstances, the court considered that KK.K.'s complaint against the actions of the private bailiff TT.S. should be satisfied. 223-226,250 of the Civil Procedure Code of the Republic of Kazakhstan, the court DECIDED: The complaint of the KKK against the actions of a private bailiff of the executive district of Almaty TT.S. on the recognition of illegal actions of a private bailiff TT.S. on the issuance of a resolution dated 12.02.2019. to approve the amount of payment for the activities of a private bailiff – to satisfy. To recognize the actions of a private bailiff of the executive district of Almaty TT.S. according to the resolution of 12.02.2019 on the approval of the amount of payment for the activities of a private bailiff in the amount of 2,092,225 tenge, illegal. Having disagreed with the decision of the court of first instance, CHSI appealed to the court of appeal and further to the Court of Cassation, which left the Decisions of the court of first instance unchanged, recognizing it as legitimate and justified.

 

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