Application for review of the court's decision on newly discovered circumstances
To the Auezovsky district Court No. 2 of Almaty
to the judge .......................
Almaty, 050062, Kuanyshbayeva str., 44 A.
phone: +7 (727) 333-12-02
727-3260@sud.kz
gt: gr. ............................
IIN …………………
about. at the address: Almaty city, Auyezovsky
district, MKR. ............, D......
tel.: +7 7 ..........
Representative by proxy:
Sarzhanov Galymzhan Turlybekovich
IIN: 850722301036.
Almaty, Medeu district,050002, Zhibek Zholy ave.,
50 Business center Block, office No. 202.
sgt.kz@mail.ru,
tel.: 8 707 (708) 578 57 58 ( WhatsApp/Viber).
Plaintiff: ATF Bank Joint Stock Company
Kazakhstan, Almaty, Furmanova 100.
BIN: 930741000
statement
on the review of the court's decision on newly discovered circumstances
There was a civil case in the proceedings of the court No. 2 of the Auezovsky district of Almaty. №........... dated 12/18/2011... on the claim of ATF Bank JSC against gr. .........., on debt collection under a bank loan agreement and court costs. By the decision of the District Court No. 2 of the Auezovsky district of Almaty dated February 29, 201.. of the year in the civil case on the claim of ATF Bank JSC against gr. .........., The court satisfied the debt collection under the bank loan agreement and court costs in full and decided to collect from gr. ……...., the amount of debt under the bank loan agreement in the amount of 130,195,431.48 (one hundred and thirty million one hundred and ninety-five thousand four hundred and thirty-one) tenge (forty-eight) tiyn, to refund the state duty in the amount of 3,905,863 (three million nine hundred five thousand eight hundred sixty three) tenge.
This decision is subject to review due to newly discovered circumstances, namely: Between ATFBank JSC (hereinafter referred to as the Bank) and gr. .........., ( hereinafter referred to as the Borrower) a bank loan Agreement was concluded № ......... from November 15th 200... (hereinafter referred to as the Loan Agreement), according to which the Borrower was granted a bank loan in the amount of 400,000 (four hundred thousand) US dollars for the completion of construction, at 13.5% per annum, where the bank's remuneration is 533 787 US dollars, the principal debt is 400,000 US dollars, the total payment by November 15, 2021 was 933 787 dollars USA. The borrower faithfully fulfilled her obligations, as well as timely and fully fulfilled her obligations to pay principal and interest according to the established payment schedule, unfortunately, due to the global crisis, which the Leader of the Nation, President of the Republic of Kazakhstan Nursultan Nazarbayev, recognizes in his annual message to the People of Kazakhstan, and asks to be loyal in difficult times for the people..
Application for review of the court's decision on newly discovered circumstances
According to Article 68 of the Law of the Republic of Kazakhstan "On Housing Relations" gr. .........., It belongs to socially vulnerable segments of the population, since currently one woman without a spouse is raising three imperfectly summer children and mortgaged real estate is the only roof over her head for her imperfectly summer children. Due to the Borrower's inability to pay, the terms of the Loan Agreement for repayment of the principal debt and remuneration for the use of credit facilities were violated.
Despite all oral and written requests to the bank to provide any preferential opportunities to continue fulfilling debt obligations since 201.. years to 201.. For a year, the bank, knowing about the partial inability of the Borrower to pay, deliberately delayed going to COURT in order to plunge the Borrower into larger debts, thus preventing the fulfillment of contractual obligations to the best of its ability.
And only at the end of 201... the bank filed a lawsuit in court. Where, during the court session, it was found out, in accordance with the certificate of debt as of 10/29/2011..., the total debt of the borrower to ATF Bank JSC under the Loan Agreement is 700 728.91 USD, which is according to the exchange rate provided by the National Bank of the Republic of Kazakhstan. where $ 1 = 185.8 tenge, the amount in tenge is: 130,195,431.48 tenge. The official exchange rate of the US dollar as of the date of filing the claim is 04/29/2011..The amount is 185.8 tenge. The bank has also suspended remuneration accruals since 02/24/2011.. All fines and penalties have also been completely abolished.
Application for review of the court's decision on newly discovered circumstances
And the claim of ATF Bank JSC was satisfied and it was decided to recover from gr. .........., the amount of debt under the bank loan agreement in the amount of 130,195,431.48 tenge, and the refund of the amount of the state duty in the amount of 3,905,863 tenge. However, upon detailed examination of the documents, namely:
Bank loan Agreement No........ dated November 15, 200... and all additional agreements to the loan agreement.
Personal account statement no.KZ.............., for the period from 01.11.200.. to 08.02.201.. year.
Data about the subject of credit histories obtained from the First Credit Bureau LLP.
To the Bank Loan Agreement No....... dated November 15, 200... the following was drawn up: Supplementary Agreement No. 1 of this agreement does not exist Supplementary Agreement No. 2 dated July 15, 200... to the bank loan agreement (the word Appendix No. 2 is changed to Appendix No. 3) Supplementary Agreement No. 3 dated July 17 April 200..to the bank loan agreement (the repayment date changes on the 25th starting from April 27, 200..year, granting a grace period from April 27, 200... to June 25, 200..., with a monthly payment of 500 US dollars to repay the accrued remuneration.
Amendment of clause 5.3.1 to cancel the fine penalty for the period from March 26, 200 ... to April 13, 200 ...". The agreement was signed by the Borrower gr. .........., in the presence of an employee of the gr bank. .........., there is an entry about this in the contract. Subject of the agreement: The Lender provides the Borrower with a bank loan in the amount of USD 400,000, for a period of 180 months from November 2006 to November 15, 2021, for the completion of construction. Remuneration is calculated at the rate of 13.5% per annum for the amount of current debt; Chapter 3 "Loan terms" according to the DBZ Clause3.2 The remuneration accrual period starts from the day following the day the bank loan is issued from the loan account to the Borrower's current account.
Application for review of the court's decision on newly discovered circumstances
Clause 3.3. When calculating remuneration for a bank loan, 30 days a month and 360 days a year are taken into account, the repayment date is taken as a full working day Clause 3.1. "A bank loan is provided by transferring money from the Borrower's loan account to the Borrower's current account" Clause 5.2.2. pay a commission to the Lender in the amount of: "For the disbursement/transfer of cash credited to the Borrower's current account in the amount of 1% of the loan amount;" 400,000 US dollars were issued for the completion of the construction according to the contract.
In fact: $176,010 was withdrawn in cash; $194,100 was deposited; A total of $370,110 was used by the borrower; $29,890 from the loan was written off by the bank: Including: - $4,000 for transfer from the loan account to the current account; - 2,400 USD for the loan; -20 520.66 USD for 4.5 months of remuneration; - repayment of the loan of 2,973 USD in 4 months. (The data was taken from the personal account KZ54826A1USDD3003287(429117196/001) issued by the bank to the borrower).
The Certificate of accrued, repaid and overdue amounts of remuneration and principal debt provided by the Bank from April 17, 2009 to October 27, 2014 accrues remuneration in the amount of 14.5% per annum on the amount of current debt. In violation of Section 4 of the Rights of the parties to clause 4.1. The Lender has the right, subparagraph 4.1.5 of the Agreement "To change the terms of this Agreement, including the amount and procedure for calculating remuneration, discount (discount). Penalties, payment schedule, including changes in repayment dates by agreement of the Parties."
Although neither the contract nor the amendments to the contract specify a change in the interest rate of remuneration, in violation of the contract and Regulatory documents of the Republic of Kazakhstan. Whereas, in accordance with Article 383 of the Civil Code of the Republic of Kazakhstan, the contract must comply with the rules binding on the parties, established by law (mandatory norms) in force at the time of its conclusion or amendment. The requirements for the form and content of a bank loan agreement are defined directly in the norms of the Civil Code of the Republic of Kazakhstan, the Law on Banks and Banking Activities, the Law on Mortgages, and the rules of the authorized state agency for Lending (Department of Financial Supervision of the National Bank of the Republic of Kazakhstan).
Application for review of the court's decision on newly discovered circumstances
Clarifications Agencies of the Republic of Kazakhstan for Regulation and Supervision of the Financial Market and Financial Organizations regarding amendments and additions introduced by the Law of the Republic of Kazakhstan "On Amendments and Additions to Certain Legislative Acts of the Republic of Kazakhstan on the stability of the financial system" in Article 39 of the Law of the Republic of Kazakhstan "On Banks and Banking Activities in the Republic of Kazakhstan" on the application of remuneration rates (July 22, 200.. year).
Prior to the entry into force of paragraph 1-1 of Article 39 of the Law of the Republic of Kazakhstan "On Banks and Banking Activities in the Republic of Kazakhstan" (hereinafter referred to as the Law on Banks) to raise interest rates without agreement with the client, provided that the banks' right to raise rates was stipulated in the contract? According to the wording of paragraph 1 of Article 39 of the Law on Banks, remuneration and commission rates, as well as tariffs for the provision of banking services, are set by banks and organizations engaged in certain types of banking operations independently.
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