Cancellation of a court decision and referral of a civil case under territorial jurisdiction
The Pavlodar City Court of the Pavlodar region had a civil case No. 5510-20-00-2/.., on the claim of DB Bank Home Credit JSC (hereinafter referred to as the Plaintiff, the bank) against M.D.V. (hereinafter referred to as the Defendant, the debtor) for the recovery of the amount owed under Bank Loan Agreements No. 3405712598 dated March 7, 2014. We partially disagree with the claim of DB Bank Home Credit JSC on the following grounds. As the credit history of the loan shows, due to financial difficulties, namely the temporary loss of work, the defendant was forced to temporarily terminate the fulfillment of obligations under the contract. But despite financial difficulties, he did not refuse to fulfill his obligations under the Bank Loan Agreement. The Defendant has repeatedly applied to the Bank with a request to grant a delay in fulfilling obligations under the Loan Agreement, or to provide any preferential terms, in the hope of resolving the current situation in a pre-trial manner. However, the bank refused all requests. In fact, it turned out that after a difficult financial period for himself, during which the defendant was unable to pay the monthly loan fees, the plaintiff placed the defendant in bonded conditions, delaying the appeal to the court, accruing remuneration. 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 Article 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.
Cancellation of a court decision and referral of a civil case under territorial jurisdiction
Also, in accordance with Part 1 of Article 364 of the Civil Code of the Republic of Kazakhstan, if non-fulfillment or improper fulfillment of an obligation occurred due to the fault of both parties, the court accordingly reduces the amount of liability of the debtor. In the article of the "Legal Gazette" dated February 17, 2011, written by such prominent statesmen as M. Alimbekov, former Chairman of the Supreme Court of the Republic of Kazakhstan and D. Tumabekov. 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 and remuneration to be collected are deliberately increased, which ultimately leads to an increase in the amount of total debt and foreclosure on collateral, the cost of which is disproportionate to the loan received." We believe that the Bank's employees 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. In support of the words according to art. 728 p. 6. of the Civil Code of the Republic of Kazakhstan. If the borrower violates the deadline set for repayment of the next part of the loan item and (or) payment of remuneration for more than forty calendar days. That is, according to this paragraph of the Civil Code of the Republic of Kazakhstan, the Plaintiff should have gone to court in June 2015, and not as in 2020, based on the above, we observe the creditor's guilt. According to art. 359 of the Civil Code of the Republic of Kazakhstan, the grounds for liability for breach of an obligation.
The debtor is responsible for non-fulfillment and (or) improper fulfillment of the obligation 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. According to clause 3. of Article 366 of the Civil Code of the Republic of Kazakhstan, 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 The application of civil legislation by analogy is stated In cases where the relations provided for in paragraphs 1 and 2 of Article 1 of the Civil Code of the Republic of Kazakhstan 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, Article 36 of the Law of the Republic of Kazakhstan "On Banks and Banking Activities in the Republic of Kazakhstan" and on Microfinance Organizations must be taken into account when a delay occurs in fulfilling an obligation under a bank loan agreement. The borrower must notify the borrower in the manner provided for in the bank loan agreement of the need to make payments under the bank loan agreement and the consequences of the borrower's failure to fulfill its obligations. 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 the Plaintiff and the Defendant conducted both oral and written correspondence, the Plaintiff intentionally delayed the deadline for filing a lawsuit, thereby artificially inflating the amount of remuneration due. The 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 courts and that everyone has the right to a fair trial in determining their civil rights and duties. and the public hearing of the case within a reasonable time by a competent, independent and impartial court established by law. Based on the above, we believe that the calculation of the amount owed by the defendant to the plaintiff should be carried out in accordance with the principles of good faith, reasonableness and fairness, therefore, it is necessary to take into account all the above circumstances. I would like to draw the judge's attention to the fact that the Bank Loan Agreement was concluded in Almaty, where the bank's Head Office is located and where the Defendant himself permanently resides, however, the Plaintiff, for selfish reasons, in order to make it difficult for the Defendant to participate in the trial, filed a Claim with the Pavlodar City Court based on the terms of the Loan Agreement, which provides for contractual jurisdiction at the Bank's choice (art. 32 of the CPC).
Cancellation of a court decision and referral of a civil case under territorial jurisdiction
In refuting these arguments, we believe the Plaintiff should be based on specific clauses of the contract, and not on the article of the CPC, which also provides for filing a Statement of Claim at the place of conclusion of the contract. Whereas Article 6 of the Civil Code stipulates that the norms of civil legislation should be interpreted in accordance with the literal meaning of their verbal expression. If there are possible different understandings of the words used in the text of legislative norms, preference is given to an understanding that meets the provisions of the Constitution of the Republic of Kazakhstan and the basic principles of civil legislation set out in this chapter. The Bank Loan Agreement signed by the parties No. 3405712598 dated March 7, 2014 does not provide for contractual jurisdiction in the Pavlodar City Court and or at the choice of the Plaintiff, as evidenced by the Agreement itself. Most likely, the Plaintiff bases his arguments on the Banking Service Agreement Version-2, where on page 107, in article 2, the responsibility of the parties. Exclusion of liability, clause 10., is provided In case of late repayment of debt, the Bank has the right to: collect a legal penalty; collect the amount of debt from any bank accounts of the Client in a non-acceptance manner, subject to the restrictions established by the legislation of the Republic of Kazakhstan; recover the amount of debt in court in court at the location of the Bank or its branch - at the discretion of the Bank; transfer the debt for pre-trial collection and settlement to collection agencies and or entrust the collection of the amount owed to third parties with the provision of information and documents to collection agencies and third parties for the execution of the Bank's instructions, block the credit card and or reduce, cancel the amount of the available credit limit with the suspension or termination of credit on the credit card without notifying the Client, as well as commit any other actions in accordance with the legislation of the Republic of Kazakhstan. Dear Court, thus, we consider the Plaintiff to be misleading you, whereas Article 32 of the CPC RK, "Contractual jurisdiction", provides that the Parties may, by agreement among themselves, change the territorial jurisdiction for this case, including in cases pending before the court, at the stage of preparing the case However, there is no reservation in this article that the Plaintiff has the right to independently choose the jurisdiction in the case, and we believe that a specific court of first instance of urban or district significance should have been stipulated.
In this article, it is necessary to pay attention to "The parties may, by agreement between themselves, change the territorial jurisdiction." Based on the principle of Good Faith, reasonableness and fairness, it would be advisable to file a lawsuit in the courts of Almaty and or at least the Almaty region, and not 3,000 km away in Pavlodar. Article 8 of the Civil Code of the Republic of Kazakhstan. It is stipulated that the exercise of civil rights should not violate the rights and legally protected interests of other subjects of law, Citizens and legal entities should 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. Actions of citizens and legal entities aimed at harming another person, abuse of the right in other forms, as well as the exercise of the right in contradiction with its purpose are not allowed – in this case, we observe a violation of our rights where the Plaintiff is applying jurisdiction of his own choice. For the purpose of a comprehensive, complete and objective consideration of the said civil case, the court will be provided with evidence that may affect the content of the decision, accordingly, it is necessary to consider this civil case in a generally established judicial procedure.
Cancellation of a court decision and referral of a civil case under territorial jurisdiction
Based on the above, I ask the Court to take into account the difficult financial situation of the Defendant and the unreasonable inaction of DB Bank Home Credit JSC for a long time, which led to an excessive increase in remuneration, and to make a decision in accordance with the principles of good faith, reasonableness and fairness. THEY ASKED THE COURT: To partially satisfy the claim of DB JSC "Bank Home Credit" to M.D.V. for the recovery of the amount owed under Bank loan Agreements, and to amend the accrued remuneration with a reduction to 10% of the principal amount; To send civil case No. 5510-20-00-2/.., according to the claim of DB Bank Home Credit JSC against M.D. V. for recovery of the amount owed under Bank Loan Agreements No. 3405712598 dated March 7, 2014 – under the jurisdiction of the courts of Almaty; To consider this civil case in a generally established judicial procedure; In addition, we sent a Petition to the court for the transfer of the case under the jurisdiction since we consider jurisdiction to have been violated in this civil case, we would like to draw the judge's attention to the fact that the Bank Loan Agreement was concluded in Almaty, where the bank's Head Office is located and where the Defendant himself permanently resides, however, the Plaintiff, for selfish reasons, in order to make it difficult for the Defendant to participate in the trial, filed a Claim with the Pavlodar City Court based on the terms of the Loan Agreement, which provides for contractual jurisdiction at the Bank's choice (art. 32 of the CPC). In refuting these arguments, we believe the Plaintiff should be based on specific clauses of the contract, and not on the article of the CPC, which also provides for filing a Statement of Claim at the place of conclusion of the contract. Whereas Article 6 of the Civil Code stipulates that the norms of civil legislation should be interpreted in accordance with the literal meaning of their verbal expression. If there are possible different understandings of the words used in the text of legislative norms, preference is given to an understanding that meets the provisions of the Constitution of the Republic of Kazakhstan and the basic principles of civil legislation set out in this chapter. The Bank Loan Agreement signed by the parties No. 3405712598 dated March 7, 2014 does not provide for contractual jurisdiction in the Pavlodar City Court and or at the choice of the Plaintiff, as evidenced by the Agreement itself. Most likely, the Plaintiff bases his arguments on the Banking Service Agreement Version-2, where on page 107, in Article 2, the Liability of the parties. Exclusion of liability, paragraph 10., is provided In case of late repayment of debt, the Bank has the right to: collect a legal penalty; collect the amount owed from any bank accounts of the Client without acceptance, subject to the restrictions established by the legislation of the Republic of Kazakhstan; collect the amount owed in court in court at the location of the Bank or its branch - at the discretion of the Bank; transfer the debt for pre-trial collection and settlement to collection agencies and or entrust the collection of the amount owed to third parties with the provision of information and documents to collection agencies and third parties for the execution of the Bank's instructions, block the credit card and or reduce, cancel the amount of the available credit limit with the suspension or termination of credit on the credit card without notifying the Client, as well as commit any other actions in accordance with the legislation of the Republic of Kazakhstan.
Cancellation of a court decision and referral of a civil case under territorial jurisdiction
Dear Court, thus, we consider the Plaintiff to be misleading you, whereas Article 32 of the Civil Procedure Code of the Republic of Kazakhstan, "Contractual jurisdiction", provides that the Parties may, by agreement among themselves, change the territorial jurisdiction for this case, including in cases pending before the court, at the stage of preparing the case However, there is no reservation in this article that the Plaintiff has the right to independently choose the jurisdiction in the case, and we believe that a specific court of first instance of urban or district significance should have been stipulated. In this article, it is necessary to pay attention to "The parties may, by agreement between themselves, change the territorial jurisdiction." Based on the principle of Good Faith, reasonableness and fairness, it would be advisable to file a lawsuit in the courts of Almaty and or at least the Almaty region, and not 3,000 km away in Pavlodar. Article 8 of the Civil Code of the Republic of Kazakhstan. It is stipulated that the exercise of civil rights should not violate the rights and legally protected interests of other subjects of law, Citizens and legal entities should 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. Actions of citizens and legal entities aimed at harming another person, abuse of the right in other forms, as well as the exercise of the right in contradiction with its purpose are not allowed – in this case, we observe a violation of our rights where the Plaintiff is applying jurisdiction of his own choice. Based on the above, as well as in accordance with art. 32 of the CPC RK. They asked the court: Civil case No. 5510-20-00-2/...., according to the claim of DB JSC "Bank Home Credit" to M.D.V. for recovery of the amount of debt under the Bank Loan Agreement No. 3405712598 dated March 7, 2014, to redirect the jurisdiction to the Medeu District Court of Almaty. On March 03, 2020, the Pavlodar City Court of the Pavlodar region, consisting of the presiding judge B.M. Zhamanbayev, with the secretary of the court session, A. E. Nurilla, considered the civil case at the court session AND DETERMINED: The civil case on the claim of DB JSC "Home Credit and Finance Bank" to M.D.V. for debt collection should be transferred to the Medeu District Court. the city of Almaty.
#Lawyer #Lawyer #Legal service #Defense Company #Law Firm #Civil #Criminal #Administrative #Arbitration cases disputes #Almaty #Kazakhstan
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.
Attorney at Law Almaty Lawyer Legal Services Legal Advice Civil Criminal Administrative Cases Disputes Protection Arbitration Law Firm Kazakhstan Law Office Court Cases
