Cancellation of a simplified court decision and reduction of debt collection
There is a civil case in your proceedings No.1942-21-00-2/.. dated 12/31/2020 on the claim of Zhagyparova Gulzhan Nurlankyzy (hereinafter referred to as the Plaintiff) against ...... Rasul ....... (hereinafter referred to as the Defendant) about debt collection. On December 23, 2020, the Zhambyl District Court of the Almaty region, chaired by Judge Kiekbaeva N.M., having considered the civil case No.1942-20-00-2/..... in simplified (written) proceedings on the Plaintiff's claim to the Defendant for debt recovery, DECIDED: The claims of Zhagyparova Gulzhan Nurlankyzy to ........ Rasulu .......... to collect the amount owed- to satisfy. To collect from ...... Rasul ...... in favor of Zhagyparova Gulzhan Nurlankyz the amount of debt in the amount of 70,000 tenge, the costs of paying for the assistance of a representative of 7,000 tenge and the payment of a state fee in the amount of 700 tenge. Having disagreed with the court's decision, the Defendant filed an Application for the cancellation of the court's decision, adopted in a simplified manner. Subsequently, on February 11, 2021, the Zhambyl District Court of the Almaty region, composed of the presiding judge N.M. Kiyokbaev, having considered the defendant's application for the cancellation of the decision considered in a simplified procedure, on the claim of Zhagyparova Gulzhan Nurlankyzy to......Rasul.... on debt collection, Determined: To cancel the decision of the Zhambyl District Court of the Almaty region dated December 23, 2020 in the civil case on the claim Zhagyparova Gulzhan Nurlankyzy to ...... Rasulu .......... about debt collection.
Cancellation of a simplified court decision and reduction of debt collection
On March 19, 2019, the plaintiff and the defendant entered into a loan agreement No. 265949002, under the terms of which the borrower was granted a loan in the amount of 70,000 tenge, for a period of 10 days, with a repayment amount of 72,128 tenge and a maximum annual interest rate of 56% per annum. On the same day, a service agreement was concluded between the plaintiff and defendant 2, according to which the contractor, on behalf of the customer, undertakes to provide scoring services, loan extensions and notifications to the customer in case of late payment of loan arrears. Further, Fincap LLP ceded the rights of claim for repayment of the Defendant's loan debt in favor of gr. Zhagyparova Gulzhan Nurlankyzy., (Hereinafter Referred To As the Plaintiff). Thus, as of 02/24/2020, the defendant's debt to the plaintiff amounted to 87,022 tenge, of which: - The main debt is 70,000 tenge; - Remuneration 7,980 tenge; - penalty 9,042 tenge. On the basis of the above, the Plaintiff asks the Court to satisfy the claims. We did not agree with the Plaintiff's claims for the following reasons: The Defendant, having disagreed with the terms of the Loan Agreement, filed a Claim with the Medeu District Court of Almaty with the following requirements:
To invalidate the loan agreement No. 265949002 dated March 19, 2019, concluded between Fincap LLP and .......... Rasulom;
To invalidate the service agreement dated March 19, 2019, concluded between Capvia LLP and ............ Rasul.
The court, having studied the materials provided by the parties, decided: Statement of Claim .......... Rasula - to satisfy. To invalidate the loan agreement No. 265949002 dated March 19, 2019, concluded between Fincap LLP and .......... Rasul. To invalidate the service agreement dated March 19, 2019, concluded between Capvia LLP and ............ Rasul. Thus, the Decision of the Medeu District Court of Almaty dated November 01, 2019 in a Civil case №7517-19-00-2/........., It has entered into legal force and has not been appealed by Fincap LLP. In addition, Fincap LLP did not have the right to assign the Loan Agreement to gr. Zhagyparova Gulzhan Nurlankyzy. In accordance with Article 21 of the Civil Procedure Code of the Republic of Kazakhstan, judicial acts that have entered into force are mandatory for all state bodies, local governments, legal entities, officials, citizens and are subject to execution throughout the territory of the Republic of Kazakhstan. Failure to execute judicial acts, as well as other manifestations of contempt of court, entail liability provided for by law. According to clauses 5, 1, art. 152 of the Civil Procedure Code of the Republic of Kazakhstan, the judge returns the statement of claim if the statement is signed by a person who does not have the authority to sign it or present it, respectively, we consider gr. Zhagyparova Gulzhan Nurlankyz in this civil case is being investigated in the Zhambyl District Court of the Almaty region by Judge Kiekbayeva N.M., does not have the authority to file a Claim, so the Court must return the statement of claim. In addition, in accordance with art. 151, The judge refuses to accept the statement of claim if there is a court decision that has entered into legal force or a court ruling on the termination of proceedings on the grounds provided for in this Code, issued in a dispute between the same parties, on the same subject and on the same grounds. In addition, we disagree regarding the accrual of penalties (penalties) and remuneration from the Plaintiff, which are not included in any framework of the current legislation of the Republic of Kazakhstan.
As part of the accrued fines (penalties), this amount is excessively large compared to the losses of the Creditor. Whereas, according to paragraph 1, art. 725-1 of the Civil Code of the Republic of Kazakhstan, a loan agreement concluded with an individual borrower has the following features: 5) the annual effective interest rate under the loan agreement may not exceed one hundred percent, including in the event of a change in the repayment period of the loan; 6) the amount of the penalty (fine, penalty) for violating the obligation to repay the loan amount and (or) pay remuneration under the loan agreement may not exceed 0.5 percent of the amount of the outstanding obligation for each day of delay, but not more than ten percent of the amount of the loan issued per year; 7) all payments of the borrower under the loan agreement, including the amount of remuneration, penalties (fines, penalties), commissions and other payments stipulated in the loan agreement, with the exception of the loan item, in aggregate may not exceed the amount of the loan issued for the entire period of the loan agreement; By virtue of paragraph 2 of art. 725-1 of the Civil Code of the Republic of Kazakhstan if a loan agreement concluded with an individual borrower that does not comply with the requirements of paragraph 1 of Article 725-1 of the Civil Code of the Republic of Kazakhstan is void. 382 of the Civil Code of the Republic of Kazakhstan, the terms of the contract are determined at the discretion of the parties, except in cases where the content of the relevant condition is prescribed by law. The loan agreement concluded between the Plaintiff and the Defendant does not comply with the requirements of paragraph 1 of Article 725-1 of the Civil Code. Also, the amount of remuneration and penalties does not meet the requirements of art.725-1 of the Civil Code. As well as the provision of a loan with payment of remuneration refers to banking operations, this type of activity is subject to licensing. Thus, Credit 24 LLP actually carries out professional activities in the financial services market through online lending, but does not have an appropriate license and is not a proper subject of this activity. In accordance with Article 4 of the Law of the Republic of Kazakhstan "On State Regulation, Control and Supervision of the Financial Market and Financial Organizations", persons who do not have an appropriate license issued in accordance with the legislation of the Republic of Kazakhstan are not allowed to carry out professional activities in the financial market. According to paragraph 1 of Article 13, paragraph 5 of Article 14 of the Law "On Microfinance Organizations", the name of a microfinance organization must necessarily contain the words "microfinance organization".
The register of microfinance organizations that have been registered is posted on the authorized body's Internet resource. It follows from the list posted on the website of the National Bank of the Republic of Kazakhstan that Fincap LLP was not registered as a microfinance organization. Meanwhile, persons not listed in clause 8, clause 2, Article 30 of the Law "On Banks and Banking Activities in the Republic of Kazakhstan", paragraph 53 of Appendix 1 of the Law "On Permits and Notifications", paragraph 7 of art. 1 of the Law "On Microfinance Organizations", is not entitled to carry out bank loan operations, as well as to provide micro-loans without obtaining the necessary permission. It follows from the above that Fincap LLP does not belong to organizations that have the right to provide micro-loans and (or) carry out certain types of banking operations. From the content of paragraph 3 of Article 715, citizens and legal entities are prohibited from attracting money in the form of loans from citizens as an entrepreneurial activity, and such agreements are void. Thus, the loan agreement concluded between Fincap LLP (Fincap) and under such circumstances, we consider the loan agreement to be invalid (void). In accordance with Clause 3 of Article 157-1 of the Civil Code of the Republic of Kazakhstan, if the transaction is invalid, each party is obliged to return to the other everything received under the transaction, and if it is impossible to return in kind (including when the received is expressed in the use of property, work performed or services provided), reimburse the value of the returned property. By virtue of clause 1 of Article 382 of the Civil Code of the Republic of Kazakhstan, the terms of the contract are determined at the discretion of the parties, except in cases where the content of the relevant condition is prescribed by law. According to clause 1 of 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. By virtue of clause 1 of Article 159 of the Civil Code, a transaction made without obtaining the necessary permission is void. It follows from Clauses 2 and 3 of Articles 157-1 of the Civil Code that an invalid transaction does not entail legal consequences, except for those related to its invalidity. In case of invalidity of the transaction, each of the parties is obliged to return to the other everything received under the transaction. According to Article 5. 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 this Code 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 apply to such relations, since this does not contradict their essence (analogy of the law). 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.
Cancellation of a simplified court decision and reduction of debt collection
In accordance with clause 4 of art.36-1 of the Law "On Banks and Banking Activities in the Republic of Kazakhstan", a bank, an organization engaged in certain types of banking operations, is prohibited from assigning 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; - bank; - organizations that perform certain types of banking operations; - a subsidiary of the bank acquiring doubtful and uncollectible assets of the parent bank; - an organization specializing in improving the quality of credit portfolios of second-tier banks; - a special financial company established in accordance with the legislation of the Republic of Kazakhstan on project financing and securitization, during the securitization transaction. Since Fincap LLP performed certain types of banking operations without having a license, they accordingly had no right to assign the right of claim to an individual gr. Zhagyparova Gulzhan Nurlankyzy. By virtue of Part 2 of Article 13 of the Constitution of the Republic of Kazakhstan, everyone has the right to judicial protection of their rights and freedoms. Based on the above and in accordance with Articles 715, 725 of the Civil Procedure Code of the Republic of Kazakhstan, the Court was asked to: Dismiss the claims of the Plaintiff, Zhagyparova Gulzhan Nurlankyzy, against the Defendant.... Rasul............................. On March 18, 2021, the Zhambyl District Court of the Almaty region, consisting of: the presiding judge, Kiekbaeva N.M., having considered in open court, using audio-video recording and the WhatsApp mobile application, a civil case, guided by articles 223-226 of the CPC, the court DECIDED: The statement of claim by Zhagyparova Gulzhan Nurlankyzy to ....... Rasula ........ about debt collection - partially satisfied. Collect from ....... Rasul ...... in favor of Zhagyparova Gulzhan Nurlankyz, the amount of debt in the amount of 10,241 (ten thousand two hundred and forty-one) tenge, the costs of paying for the assistance of a representative in the amount of 1,024 (one thousand twenty-four) tenge and the costs of paying the state fee in the amount of 308 (three hundred and eight) tenge. The rest should be rejected.
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