Application for cancellation of the executive inscription issued by a notary
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Saryarkinsky district Court, Nur-Sultan, Nur-Sultan, 010000, Zheltoksan street 43,
Applicant: Full name AND ______ address: ___________ tel.: ________
Defendant: Private notary Nurlybayeva Zhanna Abaevna License
No. 19014570 dated July 09, 2019 address: Nur-Sultan city, Saryarka district,
Republic Ave., 54, 603.
Notary Chamber of the city of Nur-Sultan, Nur-Sultan, Aiteke bi str. 14 np 8 Manhattan residential complex.
Phone: +77172608409, 608410 notpalata_astana@mail.ru The third person: LLP "______" BIN ___________
Statement
on the cancellation of the executive order
dd/mm/year from a private bailiff of the executive district of the Almaty region, I received an executive inscription no. ___, which was issued by a notary Nurlybayeva Zhanna Abaevnoy dd/mm/year. When studying the executive inscription, I found out that the notary had established the amount owed 109,348 tenge to LLP "____", BIN _________, in the amount of 105,250 tenge, and the costs incurred by the recoverer for making an executive inscription in the amount of 3,788 tenge, as well as the costs of sending notification letters on making an executive inscription of 310 tenge. The total amount to be recovered is 109,348 tenge. dd/mm/year FULL name (hereinafter referred to as the Applicant) he sent an Objection to the Executive Inscription by registered letter to the Notary through Kazpost JSC, which brought to the attention of the Notary his disagreement with the Executive Inscription dated November 7, 2019, objected to his arguments based on the absence of legal and legitimate grounds for filing claims for debt collection in favor of _____ LLP, the Applicant asks the Notary to cancel the Executive Inscription.
However, as it turned out later, another organization is located at the Notary's specified address because The notary has ceased its activity. The notary does not accept the obviousness of the disputed situation according to the stated requirements of the LLP "__________" not convinced by the Applicant's opinion, she issued an Executive Inscription and we consider the action to indicate that the Notary exceeded his authority and is illegal, since in accordance with the provisions of Article 92-1 of the Law of the Republic of Kazakhstan "On Notaries":
the executive inscription may be executed by a notary only according to the indisputable requirements;
the execution of an executive inscription is carried out upon the debtor's admission of guilt in an unfulfilled obligation, the notary's confirmation of the fact of guilt in an unfulfilled obligation, if the contract does not provide for another recovery mechanism.
In addition, according to the provision of paragraph 1 of Article 92-8 of the Law of the Republic of Kazakhstan "On Notaries", in case of receiving an objection to the stated requirement, the notary must issue a resolution on the cancellation of the executive inscription no later than three working days from the date of receipt of the objection to the stated requirement. Dear Court, in substantiation and confirmation of the Applicant's position on the Executive Inscription, we present the following arguments: In my case, the claim of 109,348 (one hundred nine thousand three hundred forty-eight) tenge is not indisputable, since I do not agree with the established amount of debt. I also did not receive a pre-trial claim, and I did not recognize the non-fulfillment of the obligation.
I have not received a copy of the notary's executive order. This violated the requirements of Articles 92-6 of the Law, since according to paragraph 1 of Article 92-6 of the Law, after making an executive inscription, the notary sends a copy of it to the debtor with a notification of delivery no later than the next business day. And in turn, the Debtor has the right, within ten working days from the date of receipt of a copy of the executive inscription, to send objections to the stated claim in writing with notification to the notary who executed the executive inscription. Dear Court, we are firmly convinced that the Notary, acting in the legal legislative field, should not have issued an Executive Order, since the stated claim to recover the amount owed from the Applicant is not indisputable.
Accordingly, the Notary, guided by art. 48, had to refuse to perform a notarial act because the commission of such an act is contrary to the law and the transaction does not comply with the requirements of the law, Actions Notaries, in addition to the above, contradict the basic provisions of the Civil Code of the Republic of Kazakhstan (general part), as set out in Articles 2, 7, and 8, according to which:
Civil legislation is based on the recognition of the equality of participants in the relations regulated by it; citizens and legal entities are free to establish their rights and obligations on the basis of a contract and to determine any of its terms that do not contradict the law.
Civil rights and obligations arise, change and terminate from the grounds provided for by the legislation of the Republic of Kazakhstan, as well as from the actions of citizens and legal entities, which, although not provided for by it, but by virtue of the general principles and meaning of civil legislation give rise to civil rights and obligations.
Citizens and legal entities must act in good faith, reasonably and fairly in exercising their rights, observing the requirements contained in the legislation, the moral principles of society, and entrepreneurs - also the rules of business ethics. This obligation cannot be excluded or limited by the contract. Good faith, reasonableness and fairness of the actions of participants in civil law relations are assumed.
Accordingly, based on the above arguments, we consider the requirements Zaymer LLP does not have indisputable claims against the Applicant, whereas clause 2, Article 92-1 of the Law stipulates that an executive order is issued to collect debts for indisputable claims, which directly contradicts the actions of the Notary. The law clearly stipulates that the execution of an executive inscription is carried out upon the debtor's admission of guilt in an unfulfilled obligation, and the notary's confirmation of the fact of guilt in an unfulfilled obligation, unless the contract provides for another recovery mechanism. In addition, article 92-2. The Law "Conditions of execution of the executive inscription" stipulates An executive inscription is executed if the submitted documents confirm the indisputability of the debtor's debt or other liability to the recoverer; In the Methodological Recommendations for the execution of the executive inscription Approved by the decision of the Board of the Republican Notary Chamber No. 3 dated March 9, 2016, it is stipulated that when submitting an application, the recoverer submits documents that are the basis for making an executive inscription, as well as the calculation of the debt. The debt calculation submitted on behalf of a legal entity is signed by the first head and the chief accountant (if any). On the basis of these documents, the notary verifies the indisputability of the debt or other liability of the debtor to the recoverer, the amount of debt due to the stated claim.
In violation of these rules, the Notary issued an executive order only on the basis of an Application. According to paragraph 1 of Article 109 of the CPC RK, the party in whose favor the decision was made, the court awards, on the other hand, all court costs incurred in the case. In accordance with paragraph 1 of Article 113 of the Civil Procedure Code of the Republic of Kazakhstan, at the request of the party in whose favor the decision was made, the court awards, on the other hand, the costs incurred by her to pay for the assistance of a representative (several representatives) who participated in the process and is not in an employment relationship with this party, in the amount of the costs actually incurred by the party. For property claims, the total amount of these expenses should not exceed ten percent of the satisfied part of the claim. paragraph 2, art. 92-8. The Law In the event that the notary's decree has not revoked the executed executive inscription or the corresponding resolution on the debtor's objection, their challenge is carried out in court. In accordance with article 610. The Code of the Republic of Kazakhstan on Taxes and Other Mandatory Payments in
The budget (Tax Code) from applications (complaints) submitted to the court in cases of special proceedings, state duty is levied on complaints of unlawful actions (inaction) and decisions of state bodies and their officials infringing on the rights of individuals - 0.5 MCI. According to article 25. Law - Complaints about notarial acts or refusal to perform them are considered by the courts in accordance with the norms of civil procedure legislation. Article 364. The CPC of the Republic of Kazakhstan stipulates that an interested person who considers a notarial act to be incorrect or a refusal to perform a notarial act has the right to file a complaint about this with the court at the location of the notary or an official authorized to perform notarial acts. The complaint is filed with the court within ten days, calculated from the day when the applicant became aware of the notarial act performed or the refusal to perform the notarial act. Based on the above, in accordance with Articles 9 of the Civil Code of the Republic of Kazakhstan, Articles 148, 364-367 of the CPC of the Republic of Kazakhstan, I request the court:
Cancel the Notary's executive order Nurlybayeva Zhanna Abayevna from dd/mm/year;
Collect from a Notary Nurlybayeva Zhanna In favor of the Applicant, the full name of the costs of paying the state fee, taking into account the bank's commission in the amount of 1,389 tenge.
Yours sincerely,, _________________/ FULL NAME "___" _____________20__ the year.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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