Cancellation of the executive order on collection of utility bills from a Legal entity

On June 22, 2020, the notary of Almaty, Yerubayeva B.O., executed executive inscription No. 521 on recovery from ...... E.M. in favor of KSP (K) "Aur Home" debt for a period of 25 months in the amount of 87,221 tenge, as well as expenses for executing an executive inscription in the amount of 4,167 tenge. 2 On July 1, 2020, the applicant initiated an appeal to the notary of Almaty, Yerubayeva B.O., objecting to the executive inscription and demanding its cancellation. By the decree of the notary of Almaty Yerubayeva B.O. dated July 7, 2020, the objection of ....... E.M. to the specified executive inscription was refused. As a legal justification for the decision taken by the notary of Almaty, Yerubayeva B.O., a reference was made to the lack of appropriate legal grounds for its cancellation. The applicant ....... E.M. appealed to the court against the actions of the notary of Almaty Yerubayeva B.O. The stated claims are motivated by the fact that the notary did not take into account the fact of the existence of a controversial situation, whereas the executive inscription can only be made according to indisputable requirements.

Cancellation of the executive order on collection of utility bills from a Legal entity

In March 2019, the applicant received a pre-trial claim from the KSP (K) "Aur Home" demanding to pay the amount of debt in the amount of 30 54 tenge for 5 months. The applicant does not know on the basis of which documents and in what order the debt was calculated. In response to oral questions about reporting and the possibility of participating in general meetings, the Chairman of the PCB stated that the applicant had nothing to do with the condominium building. Draws the court's attention to the fact that it has not concluded any agreements with the KSP (K) "Aur Home". In addition, the applicant requested a number of documents from the KSP (K) "Aur Home": minutes of general meetings, the charter and other documents that have not yet been submitted. All these arguments were given by the applicant in the relevant objection to the executive inscription. In this regard, requests: - To recognize as illegal the actions of the notary of Almaty Yerubayeva B.O. on the refusal to issue a resolution on the cancellation of the executive inscription; - To cancel the executive inscription of the notary of Almaty Yerubayeva B.O. dated June 22, 2020. From the response to the complaint provided by the notary of Almaty Yerubayeva B.O. there should be disagreement with the stated requirements. Thus, the executive inscription was issued after examining all the necessary documents: the voting sheets of apartment owners, the protocol of consent, extracts from the protocol, the act of acceptance and transfer of the house, the calculation of the shares of each owner, the constituent documents, the calculation of debt. The relevant executive inscription has been sent to the debtor at the registration address in accordance with the procedure established by law.

It also draws the court's attention to the fact that the applicant's omission of the deadline is caused by reasons that are not valid. The applicant's representative, G.T. Sarzhanov, during the court session, fully supported the stated claims on the grounds set out in the complaint and asked them to be satisfied in full. The representative of the notary of Almaty Yerubayeva B.O. – Dzhulamanova A.S. and the notary Yerubayeva B.O. during the consideration of the case, the stated claims were not recognized, they asked to be denied due to their groundlessness and lack of evidence. The representative of the third party of the KSP (K) "Aur Home" did not appear at the court hearing, despite proper notification of the day, time and place of consideration of the present civil case. The court decided to consider the case without the participation of a duly notified and failed to appear third party. The applicant's representative, G.T. Sarzhanov, filed a motion during the consideration of the case to restore the time limit for appealing the actions of the Almaty notary, B.O. Yerubayeva. Also, the applicant's representative, G.T. Sarzhanov. A petition has been filed to recover the notary's expenses for paying for the representative's services in the amount of 70,000 tenge.

Cancellation of the executive order on collection of utility bills from a Legal entity

According to Article 92-1 of the Law of the Republic of Kazakhstan "On Notary" (hereinafter – the Law) In order to recover money or claim other movable property from the debtor, the notary makes an executive inscription on the document establishing the debt, or issues an appropriate resolution. An executive inscription may be made on a copy of the document establishing the debt, provided that its original is presented, in which the appropriate mark is made. On the basis of an executive inscription or a corresponding resolution, debt collection is carried out for the following indisputable requirements: - on debt collection from owners of premises (apartments) who evade participation in mandatory expenses for the maintenance of the common property of the condominium facility, approved by the Law of the Republic of Kazakhstan "On Housing Relations", with the exception of claims for recovery of additional expenses; Penalties (penalties) and interest, if any, are collected on the basis of an executive inscription, with the exception of bank loans, upon written recognition by the debtor of an unfulfilled obligation. The execution of an executive inscription is carried out upon the debtor's admission of guilt in an unfulfilled obligation, confirmation by a notary of the fact of guilt in an unfulfilled obligation, unless the contract provides for another mechanism for collecting penalties (penalties), interest. In this case, it follows from the contents of the executive inscription dated June 22, 2020, that the last one with ........ E.M. the amount of debt in the amount of 87,221 tenge for 25 months, as well as the costs of executing the executive inscription in the amount of 4,167 tenge, was recovered in favor of the recoverer. From the content of the application of the recoverer of the KSP (K) "Aur Home" for the issuance of an executive inscription, it follows that the amount of debt requested for collection consists of: housing maintenance costs in the amount of 75,221 tenge, the cost of replacing cold water pipes – 12,000 tenge. At the same time, the costs of replacing cold water pipes are not mandatory expenses for the maintenance of the common property of the condominium facility, approved by the Law of the Republic of Kazakhstan "On Housing Relations", therefore, the collection of the specified amount on the basis and executive inscription, taking into account the lack of recognition of the amount of debt ........ E.M., is not allowed.

In addition, these claims are not indisputable, since the notary's party has not provided evidence indicating that the recoverer has provided evidence of recognition of ....... e.M. the amount of the debt. In accordance with the contents of the Methodological Recommendations for the execution of the executive inscription, approved by the decision of the Board of the Republican Notary Chamber dated March 9, 2016 No. 3 (hereinafter referred to as the Methodological Recommendations), when submitting an application, the recoverer provides the documents that are the basis for the execution of the executive inscription, as well as the calculation of debt. The debt calculation provided on behalf of a legal entity is signed by the first head and the chief accountant (if any). On the basis of these documents, the notary verifies the indisputability of the debtor's debt or other liability to the recoverer, and the amount of debt due to the stated claim. According to subclause 5, clause 8 of the Methodological Recommendations for making an executive inscription on debt collection under the obligation to collect debts from the owner of premises (apartments) that evade participation in mandatory maintenance costs for the common property of a condominium facility, approved by the Law of the Republic of Kazakhstan "On Housing Relations", are provided: a certified copy of the service agreement (if the recoverer management company); copies of 5 documents on setting tariffs, determining penalties (minutes, extract from the decision of the general meeting of the KSK); a document on the calculation of the amount owed (a copy of the personal account with the calculation of the amount owed certified by the recoverer or an extract from the personal account certified by the recoverer) for payment for services, penalties for late payment of such payment. The specified document must contain information about the time of payment of the debt, the date on which the obligation to make payment arose, and a written notice (notice) sent to the debtor about the amount of the debt and the deadline for its repayment. In this case, during the consideration of this civil case, no evidence was presented indicating the indisputability of the relevant claims for recovery ........ E.M. in favor of the KSP (K) "Aur Home" the amount owed, which excludes the existence of legal grounds for collecting the amount by making an executive inscription. In accordance with paragraph 2 of Article 48 of the Law of the Republic of Kazakhstan "On Notaries" (hereinafter referred to as the Law), if a person who has applied for a notarial act is refused, the notary shall hand over a reasoned written decision indicating the reasons for the refusal within ten calendar days from the date of the person's request for a notarial act.

 According to the provisions of Article 92-8 of the Law, the notary issues a resolution on the cancellation of the executive inscription or the corresponding resolution no later than three working days from the date of receipt of the objection to the stated claim. The decision to revoke the executive inscription or the corresponding resolution is not subject to challenge. If the notary's decree has not revoked the executed executive inscription or the corresponding resolution on the debtor's objection, their challenge is carried out in court. In accordance with part 1 of Article 364 of the Civil Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the CPC), an interested person who considers a notarial act performed or refusal to perform a notarial act to be incorrect has the right to file a complaint about this with the court at the location of the notary or an official authorized to perform notarial acts. The applicant's representative, G.T. Sarzhanov, filed a motion during the consideration of the case to restore the time limit for appealing the actions of the Almaty notary, B.O. Yerubayeva. This petition is motivated by the fact that on July 14, 2020, a corresponding complaint against the notary's actions was sent to the Bostandyk District Court of Almaty and returned by the 6th court ruling of July 21, 2020. The legal basis for the return of the complaint was the fact that the applicant had not paid the state fee. The complaint was sent to the court again after the payment of the state fee in the amount prescribed by law.

Cancellation of the executive order on collection of utility bills from a Legal entity

In accordance with part 4 of Article 364 of the CPC, a complaint is filed with the court within ten days, calculated from the day when the applicant became aware of the notarial act performed or the refusal to perform the notarial act. According to parts 2,4 of Article 126 of the CPC, the time limits established by this Code may be restored by the court if they are missed for reasons recognized by the court as valid. In this case, it is established that the time limit for appealing against notarial acts is ....... E.M. It was missed as a result of the court's return of a previously filed complaint and the elimination of circumstances preventing the complaint from being accepted by the court. These circumstances attest to the validity of the reasons for the applicant's omission of the deadline for appealing notarial actions and the existence of legal grounds for its restoration. Thus, the totality of the circumstances of the case established by the court gives the court grounds to believe that the stated claims are subject to satisfaction in terms of the cancellation of the executive inscription, since the latter was committed in violation of the requirements of current legislation. In addition, among other things, the applicant's party filed a claim to declare illegal the actions of the notary of Almaty Yerubayeva B.O. in refusing to issue a resolution on the cancellation of the executive inscription. These requirements are not subject to satisfaction, as they are overly stated. In this case, the restoration of violated rights ...... E.M. was carried out by issuing a decision to cancel the executive inscription. In this regard, the complaint of ........ E.M. is subject to partial satisfaction. By virtue of Article 109 of the Civil Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the CPC), the court awards the party in whose favor the decision was made, on the other hand, all court costs incurred in the case. If the claim is partially satisfied, the costs are awarded to the plaintiff in proportion to the amount of the claims satisfied by the court.

In this regard, the defendant is charged in favor of the plaintiff the court costs of paying the state fee, in proportion to the satisfied part of the claim, as well as postage and the cost of paying the bank's commission. 7 At the same time, according to part 8 of Article 108 of the CPC, among other things, the costs associated with the proceedings include the costs of paying for the assistance of a representative. By virtue of part 1 of Article 113 of the CPC, the party in whose favor the decision was made, the court awards compensation to the other party for the expenses incurred by it to pay for the assistance of a representative (several representatives) who participated in the process and who is not in an employment relationship with this party, who participated in the process, in the amount of the expenses actually incurred by the party. In this case, taking into account the circumstances of the case, the degree of its complexity, and the criterion of fairness, the court considers it necessary to reduce the amount of expenses for paying for the assistance of a representative to be recovered from the defendant in favor of the plaintiff to 7,000 tenge. Guided by Articles 223-226 of the CPC, the court DECIDED: The complaint ........ Evgenia Mikhailovna – partially satisfy. To cancel the executive inscription made by the notary Yerubayeva Bagdagul Omiralievna dated June 22, 2020 on the recovery from ....... Evgeniya Mikhailovna owed 87,221 (eighty-seven thousand two hundred and twenty-one) tenge in favor of the KSP (K) "Aur Home" and expenses for the execution of the executive inscription in the amount of 4,167 (four thousand one hundred and sixty-seven) tenge. To collect from the notary Yerubayeva Bagdagul Omiralievna in favor of ........... Evgeniya Mikhailovna's expenses for the assistance of a representative in the amount of 7,000 (seven thousand) tenge and expenses for the payment of state duty in the amount of 835 (eight hundred and thirty-five) tenge.

To dismiss the rest of the complaint. An appeal may be filed against the decision, a petition filed by the prosecutor in compliance with the requirements of Articles 403-404 of the Civil Procedure Code of the Republic of Kazakhstan to the Almaty City Court through the Bostandyk District Court of Almaty within one month from the date of the final decision, and by persons who did not participate in the trial from the date of sending them a copy of the decision. Disagreeing with the court's decision, the party filed an appeal against the court's decision and on December 2, 2020, the Judicial Board for Civil Cases of the Almaty City Court, consisting of: presiding judge Ramazanov A.E., judges Merekenova L.T., Kudekova L.S. with the participation of the applicant ........ E.M., a representative of the defendant – Dzhulamanova A.S., having considered a civil complaint case in open court using mobile videoconferencing ...... Evgeniya Mikhailovna to the notary G. Almaty Yerubayeva Bagdagul Omiralievna on appeal of notarial actions, cancellation of the executive inscription, received on the defendant's appeal against the decision of the Bostandyk District Court of Almaty dated August 26, 2020, Note: The decision of the Bostandyk District Court of Almaty dated August 26, 2020 in this case to leave unchanged, the appeal of the notary of Almaty Yerubayeva B.O. - without satisfaction.

#Lawyer #Lawyer #Legal service #Legal advice #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