Article 36-1. The procedure for transferring debts for pre-trial recovery and settlement or assignment of the right (requirement) of the Law on Banks and Banking Activities in the Republic of Kazakhstan

  The footnote. The title of Article 36-1 is as amended by the Law of the Republic of Kazakhstan dated 06/19/2024 No. 97-VIII (effective sixty calendar days after the date of its first official publication).      1. Excluded by the Law of the Republic of Kazakhstan dated 06/19/2024 No. 97-VIII (effective sixty calendar days after the date of its first official publication).      2. Excluded by the Law of the Republic of Kazakhstan dated 07/02/2018 No. 168-VI (effective after ten calendar days from the date of its first official publication).      3. Excluded by the Law of the Republic of Kazakhstan dated 07/02/2018 No. 168-VI (effective after ten calendar days from the date of its first official publication).

     4. It is prohibited for a bank or an organization engaged in certain types of banking operations to assign rights (claims) under a bank loan agreement to a third party, with the exception of assignment of rights (claims) to the following persons:

     collection agency;

     The bank;

     organizations that perform certain types of banking operations;

     a subsidiary of the bank that acquires doubtful and uncollectible assets of the parent bank;

     organizations specializing in improving the quality of second-tier banks' loan portfolios;

     a special financial company established in accordance with the legislation of the Republic of Kazakhstan on project financing and securitization, in the case of a securitization transaction;

     a person who repurchases mortgage loans from individuals who are not related to entrepreneurial activities, one hundred percent of whose shares belong to the National Bank of the Republic of Kazakhstan;

     special fund for the development of private entrepreneurship – under a bank loan agreement concluded as part of a deal to finance private business entities by conditionally placing funds in banks and organizations engaged in certain types of banking operations;

     to another person – with respect to the rights (claims) under a bank loan agreement of an individual related to the conduct of business activities, under a bank loan agreement of a legal entity, if there are signs of impairment on these loans at the date of assignment in accordance with international financial reporting standards.

     The person specified in the tenth paragraph of the first part of this paragraph transfers to the trust management of the service company the received rights (claims) under the bank loan agreement in one of the following cases:

     the rights (claims) were obtained under a bank loan agreement of an individual related to the implementation of entrepreneurial activities;

     The rights (claims) were obtained under a bank loan agreement of a legal entity, the amount of debt for which does not exceed 16,500 times the monthly calculation index established by the law on the republican budget on the date of assignment.;

     if the person to whom the rights (claims) have been assigned under the bank loan agreement is a non-resident of the Republic of Kazakhstan.

     The rights (claims) under bank loan agreements may be transferred to the service company if the following conditions are met simultaneously:

     1) the amount of the authorized capital of the collection agency, the equity of the parent organization of the subsidiary of the bank, which acquires doubtful and hopeless assets of the parent bank, is not less than the minimum value established by the regulatory legal act of the authorized body;

     2) carrying out activities for three years from the date of:

     granting a bank or a bank holding company permission for the bank to establish a subsidiary that acquires questionable and uncollectible assets of the parent bank;

     inclusion of a collection agency in the register of collection agencies;

     3) as of the date of inclusion in the register of service companies, there are no outstanding and (or) effective supervisory response measures or limited impact measures applied by the authorized body and administrative penalties for administrative offenses provided for in Article 211-1 and part one of Article 227 of the Code of the Republic of Kazakhstan on Administrative Offenses.;

     4) the first head of the service company has no outstanding or outstanding criminal record;

     5) compliance of the service company with the requirements established by the authorized body.

     The requirements for the bank's subsidiaries acquiring doubtful and uncollectible assets of the parent bank, and collection agencies acting as service companies to which the rights (claims) under bank loan agreements can be transferred to trust management, are established by a regulatory legal act of the authorized body.

     The authorized body maintains and places on its Internet resource a register of service companies that comply with the requirements of the legislation of the Republic of Kazakhstan.

     The exclusion of a service company from the register of service companies is the basis for the termination of the contract of trust management of rights (claims).

     In case of transfer of rights (claims) under a bank loan agreement to the trust management of a service company, the person specified in paragraph ten of the first part of this paragraph shall exercise the rights of the creditor in respect of the right (claim) assigned to him under a bank loan agreement under a trust management agreement of rights (claims) concluded with the service company, or by assignments to persons specified in the first part of this paragraph.

     In case of termination of the contract of trust management of rights (claims) with a service company, the person specified in paragraph ten of the first part of this paragraph is obliged to conclude a contract of trust management of rights (claims) with another service company or assign the rights (claims) to the persons specified in the first part of this paragraph.

     The requirements of this paragraph do not apply to the following cases::

     1) assignment by the bank of rights (claims) to the National Bank of the Republic of Kazakhstan in order to fulfill obligations under the loan of last resort;

     2) transfer of rights (requirements) to the Export Credit Agency of Kazakhstan by way of subrogation in connection with insurance payments under voluntary insurance contracts in accordance with the legislation of the Republic of Kazakhstan.

     4-1. Assignment of rights (claims) under a bank loan agreement, for which there are signs of impairment at the date of assignment in accordance with international financial reporting standards, is carried out by a bank, an organization engaged in certain types of banking operations, subject to the following conditions:

     1) the person in whose favor the rights (claims) are assigned under a bank loan agreement is determined based on the results of auctions in respect of these rights (claims) conducted by a bank, an organization engaged in certain types of banking operations, on an electronic trading platform for the sale of banking and microfinance assets, with the exception of:

     the persons specified in paragraphs seven, eight and (or) nine of the first part of paragraph 4 of this Article, and the Development Bank of Kazakhstan;

     assignment of rights (claims) carried out within the framework of the measures provided for in Articles 61-10, 61-11 and 61-12 of this Law;

     2) assignment of rights (claims) under a bank loan agreement is carried out in compliance with the restrictions and rules established in paragraph 4 of this Article.

     The requirements set out in the first part of this paragraph apply to subsidiaries of banks that acquire doubtful and uncollectible assets of the parent bank.

     IZPI's note!

     Paragraph 4-2 was suspended until 05/01/2026 by the Law of the Republic of Kazakhstan dated 06/19/2024 No. 97-VIII and during the suspension period this paragraph is valid as follows.

4-2. It is prohibited for a bank or an organization engaged in certain types of banking operations to assign rights (claims) under a bank loan agreement to an individual who is not related to business activities to a collection agency.

     5. A bank or an organization engaged in certain types of banking operations may not assign a right (claim) under a bank loan agreement without the consent of the borrower, unless otherwise provided by the laws of the Republic of Kazakhstan or a bank loan agreement.

     5-1. A bank or an organization engaged in certain types of banking operations may not assign the right (claim) under a bank loan agreement secured by a pledge of property to the persons specified in paragraph one of paragraph 4 of this article without an assessment of the value of the property conducted by an appraiser during the last six months prior to the assignment of the right (claim) in accordance with The Law of the Republic of Kazakhstan "On valuation activities in the Republic of Kazakhstan".

     6. Assignment of rights (claims) under a bank loan agreement in respect of one borrower to several persons is not allowed, except in cases when these rights (claims) are the subject of a securitization transaction.

     7. When concluding a contract for the assignment of rights (claims) under a bank loan agreement (hereinafter referred to as the assignment agreement), a bank or an organization engaged in certain types of banking operations must:

     1) prior to the conclusion of the assignment agreement, notify the borrower, an individual under a bank loan agreement not related to business activities, of the planned assignment of the creditor's rights (claims) under the specified bank loan agreement to a third party, as well as of the processing (transfer) of the borrower's personal data in connection with such assignment in the manner provided for in the bank loan agreement, as well as through informatization facilities;

     2) notify the borrower (or his authorized representative) of the transfer of rights (claims) under the bank loan agreement to a third party in the manner provided for in the bank loan agreement, as well as through information technology facilities, within thirty calendar days from the date of conclusion of the assignment agreement, indicating the need for further payments under the bank loan agreement to a third party (name, location and bank details of the person to whom the rights (claims) have been assigned under the bank loan agreement, or in the case of transfer of rights (claims) under a bank loan agreement to a trust management service company), the amount of transferred rights (claims) under a bank loan agreement, the amount and structure of debt under a bank loan agreement (principal, remuneration, commissions, penalty (fine, fine) and other amounts payable;

     3) transfer the following documents to the person to whom the rights (claims) have been assigned under the bank loan agreement, or to the service company (in the case of transfer of rights (claims) under the bank loan agreement to the service company's trust management):

     bank loan agreement;

     the pledge agreement and the title documents for the collateral (if the fulfillment of obligations under the bank loan agreement is secured by collateral);

     a surety or guarantee agreement (if the fulfillment of obligations under a bank loan agreement is secured by a surety or guarantee);

     calculations of the borrower's debt as of the date of assignment of rights (claims);

     claim correspondence with the borrower (if any);

     the constituent documents of the borrower – a legal entity, a copy of the identity document of the borrower – an individual;

     documents confirming repayment of debt by the borrower;

     documents on the sale of mortgaged property (if available);

     other documents in accordance with the assignment agreement.

     In case of assignment of all rights (claims) to the borrower, the bank or an organization engaged in certain types of banking operations shall transfer to the person to whom the right (claim) has been assigned under the bank loan agreement all the original documents they have, and in case of transfer of rights (claims) under the bank loan agreement to the trust management of the service company, the originals of the specified documents. the documents are transferred to the service company.

     For the loss of the originals of the title documents for the property that secures the fulfillment of obligations under the bank loan agreement, the bank (an organization engaged in certain types of banking operations), the person to whom the rights (claims) have been assigned under the bank loan agreement, and the service company are liable in accordance with the laws of the Republic of Kazakhstan.

     In case of assignment of part of the rights (claims) to the borrower, the bank or the organization performing certain types of banking operations has the right to keep the original documents certifying such rights (claims) and transfer notarized copies of these documents to the person to whom the right (claim) has been partially assigned under the bank loan agreement, and in case of transfer of part of the rights (requirements) under the bank loan agreement, notarized copies of the specified documents are transferred to the service company's trust management.;

     4) after the conclusion of the assignment agreement, transfer the money received to repay the debt under the bank loan agreement to the bank account of the person to whom the rights (claims) under the bank loan agreement have been assigned, providing a transcript of payments in the context of each borrower.

     8. A person to whom the right (claim) of a bank has been assigned, or an organization engaged in certain types of banking operations, is prohibited from assigning such a right (claim) under a bank loan agreement without observing the conditions stipulated in this article.

The Law of the Republic of Kazakhstan dated August 31, 1995 No. 2444.

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