Cancellation of the court decision | Application of the limitation period | Recognition of the loan agreement as null and void

In the court proceedings, there was a civil case No. 7517-17-00-2/29748 dated 16.11.2017, on the claim of the LLP "Special Financial Company Finance" against the TOI for debt collection under a bank loan agreement, they disagree with this claim on the following grounds: From the documents submitted by the plaintiff, it follows that on 26.09.2006 Alliance Bank JSC (now ForteBank JSC) and T.O.I. (hereinafter referred to as the Defendant) concluded a bank loan agreement No. 1417-EK-986489/2006, according to which the Defendant was granted a loan in the amount of 516,758 tenge, for a period of 36 months, with payment of remuneration for the use of the loan according to the payment schedule. 07/29/2011, in accordance with the factoring agreement No. 5.5.-16-31/934-2011 The rights of claim under this bank loan agreement were assigned to Spektr-Collect LLP, which was later renamed SPECTRUM Finance LLP, based on supplementary agreement no.5.516-3-1/934-2011/1 dated 26.09.2011. On 24.10.2011, SPECTRUM Finance LLP, under the securitization assignment agreement, ceded the right of claim under the Special Financial Company Finance LLP agreement (hereinafter referred to as the Plaintiff), specifically notes that the Defendant violated its obligations, did not repay the loan, resulting in a debt that, as of On 06.06.2017, it amounts to 1,235,731.60 tenge, of which the principal debt is 392,737 tenge, remuneration is 634,628 tenge, and penalty is 208,366.60 tenge. As the credit history of the defendant's loan shows, due to financial difficulties, namely the temporary loss of work, she was forced to stop paying and repeatedly, due to financial difficulties, verbally and in shifts applied to Special Financial Company Finance LLP, and fulfilled her debt obligations to the best of her ability, which the plaintiff's representative will confirm during the court session.

However, Special Financial Company Finance LLP simply ignored all attempts. In fact, it turned out that after a difficult financial period for himself, during which the defendant was unable to pay, the plaintiff placed the defendant in bonded conditions, according to which almost the entire amount of money paid by the Borrower would go to penalties, and any other newly received payments would go there as well. Being a decent and responsible person, the defendant has never refused to fulfill his debt obligations to Special Financial Company Financial LLP and has always been open to constructive dialogues. However, the LLP "Special Financial Company "Finance" itself has not undertaken any constructive dialogue to resolve the current situation. 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 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." 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 obligations occurred due to the fault of both parties, the court accordingly reduces the amount of liability of the debtor."

Cancellation of the court decision | Application of the limitation period | Recognition of the loan agreement as null and void Replacement of the court decision | Application of the limitation period | Recognition of the loan agreement as null and void

We believe that the employees of Special Financial Company Finance LLP deliberately delayed going to COURT in order to plunge the Borrower into larger debts. Thus, the Plaintiff refers to art. 272 of the Civil Code of the Republic of Kazakhstan, the obligation must be fulfilled 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, although he does not fulfill the obligations in full and on the terms of the contract, which raises doubts about the good faith performance of the obligation. 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 2014, and not as in 2017, 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. 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 (analogy of the law) apply to such relations, insofar as 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. Regarding the accrued penalties, they disagree because this amount of penalty is excessively large compared to the creditor's losses whereas according to art. 35 of the Law on Banks and Banking Activity states "The amount of the penalty (fine, penalty fee) for violating the obligation to repay the loan amount and (or) pay remuneration under a bank loan agreement concluded with an individual may not exceed 0.5 percent of the overdue payment amount for each day of delay, after ninety days of delay. ninety days of delay may not exceed 0.03 percent of the overdue payment amount for each day of delay, but not more than ten percent of the loan amount for each year of the bank loan agreement." 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 file a lawsuit to recover the amount of the debt. However, despite the fact that both oral and written correspondence was conducted between Special Financial Company Financial LLP and the defendant, the plaintiff intentionally delayed the deadline for filing a lawsuit, thereby artificially overestimating the amount of the penalty due. According to art . 297 of the Civil Code of the Republic of Kazakhstan if the penalty payable is excessively large in comparison with the creditor's losses, the court has the right to reduce the penalty, taking into account the degree of fulfillment of obligations by the debtor and the debtor's interests that deserve attention, the court reduces the debtor's liability if the creditor intentionally or negligently contributed to an increase in the amount of losses caused by non-performance or improper performance, or did not take reasonable measures to reduction.

Cancellation of the court decision | Application of the limitation period| Recognition of the loan agreement as null and void

Dear Court, according to the Cancellation of the court's decision | Application of the limitation period | Recognition of the loan agreement as null and void by the Plaintiff's materials and the Certificate we received from the First Credit Bureau is indicated in accordance with the factoring agreement No. 5.5.-16-31/934-2011 The rights of claim under this bank loan agreement were assigned to Spektr-Collect LLP, which subsequently, it was renamed into SPEKTR Finance LLP, based on additional agreement no.5.516-3-1/934-2011/1 dated 26.09.2011. On 24.10.2011, SPECTRUM Finance LLP, under the securitization assignment agreement, ceded the right of claim under the Special Financial Company Finance LLP agreement, taking into account the date of assignment of the right of claim dated 24.10.2011 and the date of filing the Lawsuit, more than 3 years have passed and we consider the Plaintiff to have missed the general statute of limitations - This is the period of time during which a claim may be satisfied that has arisen from violations of a person's right or a legally protected interest, and the statute of limitations and the procedure for calculating them are provided for by law and cannot be changed by agreement of the parties in accordance with art. 177 of the Civil Code of the Republic of Kazakhstan. Provided for in Article 178 of the Civil Code of the Republic of Kazakhstan, paragraph 1. The specified General limitation period is set at three years. Also according to Art. 179.  The claim for the protection of the violated right is accepted for consideration by the court regardless of the expiration of the limitation period, and the limitation period is applied by the court only upon the application of the party to the dispute made before the court's decision. The expiration of the limitation period before the filing of a claim is the basis for the court's decision to dismiss the claim. 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. Cancellation of the court decision | Application of the limitation period | Recognition of the loan agreement as null and void Based on the above, we believe that the calculation of the amount of the Defendant's debt 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. Based on the above, we ask the Court to take into account the difficult financial situation of the defendant and the unreasonable inaction of Special Financial Company Finance LLP for a long time, which led to an excessive increase in penalties, and to make a decision in accordance with the principles of good faith, reasonableness and fairness. They asked the COURT to refuse to satisfy the Claim of the LLP "Special Financial Company Finance" to the T.O.I. for debt collection under the bank loan agreement by applying the statute of limitations. Recognition of the loan agreement as null and void

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