Cancellation of the simplified court decision and reduction of the Plaintiff's claim
On June 07, 2017, the judge of the District Court No. 2 of Almaly district of Almaty, Beiseuova A.A., having considered civil case No. 2-14399/17 in simplified proceedings on the claim of Platinum Collection LLP against M.E.A. for debt recovery, the Court decided: Partially satisfy the claim of Platinum Collection LLP. The decision was made in favor of Platinum Collection LLP to recover from M. E.A., in favor of Platinum Collection LLP, debt in the amount of 4,036,640 tenge and court costs for the payment of state duty in the amount of 121,099 tenge, commission in the amount of 210 tenge and postage incurred in the amount of 380 tenge. The defendant did not participate in this court session, and he never received notifications about upcoming court sessions. The defendant learned about the court's decision from the bailiff on 22.01.2018 and on 23.11.2017 he received the court's Decision through the website of the Supreme Court of the Republic of Kazakhstan. Thus, the defendant did not have the opportunity to familiarize himself with the subject of the statement of claim, the nature and size of the Plaintiff's claims and to collect the necessary materials to protect his interests. In addition, the case pending before the Almaly District Court No. 2 in Almaty affects the interests of the defendant, and the decision in this case may affect the rights and obligations of the defendant. By the decision of the district court No. 2 of Almaly district of Almaty, they disagree, as the amount of the principal debt from the loan received has not been established and clarified by the court, the payments made by the defendants due to repayment of the loan have not been taken into account, the Demand for early repayment of the loan has not been received, as the defendant has not refused to fulfill its obligations under preferential terms and conditions to date The defendant intends to settle the case amicably through mediation, and the defendant has not received copies of the statement of claim., and in this regard, we intend to conduct a Financial and credit examination for the accrual of remuneration and principal, penalties and other circumstances.
Cancellation of the simplified court decision and reduction of the Plaintiff's claim
According to Article 147 of the Civil Procedure Code of the Republic of Kazakhstan, the Defendant has the right to file with the court that issued the decision in a simplified (written) procedure an application for cancellation of this decision within five working days from the date of receipt of a copy of the court decision. The application is filed if the defendant has not been properly notified of the receipt of the statement of claim and its consideration in a simplified (written) procedure and has not been able to provide feedback, as well as evidence that may affect the content of the decision. An application for revocation of a decision is considered in accordance with the rules established by Chapter 21 of this Code, taking into account the requirements provided for in part two of this Article. The decision may be appealed by the parties or appealed by the prosecutor on appeal after the deadline for filing an application for revocation of this decision has expired, and if the application has been filed, within one month after the court's ruling rejecting this application. By virtue of Article 13 of the Constitution of the Republic of Kazakhstan, everyone has the right to defend their violated or disputed rights, freedoms or legally protected interests. In accordance with Article 8 of the CPC, everyone has the right to apply to the court for protection of violated or disputed constitutional rights, freedoms or protected interests. In accordance with Article 15 of the Civil Procedure Code of the Republic of Kazakhstan, the parties choose their position, ways and means of defending it independently and independently of the court, other bodies and persons during civil proceedings. 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. 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. Based on the above, guided by Articles 264, 265, 147 of the CPC RK, the Court requested:
To cancel the decision of the District Court No. 2 of Almaly district of Almaty, dated June 07, 2017, on the claim of Platinum Collection LLP against the MEA for debt collection; To resume consideration of the case on the merits. On February 07, 2018, the District Court No. 2 of the Almaly district of Almaty, consisting of: the presiding judge Aitzhanova G.B., with the participation of the representative of the defendant Sarzhanov G.T., having considered in open court the statement of the representative of the defendant Sarzhanov G.T., on the cancellation of the court decision dated 06/07/2017 in the civil case on the claim of Platinum Collection LLP to M.E.A. about debt collection. Based on the above and guided by Articles 266, paragraph 1, Part 3, Articles 147, 265 of the CPC RK, the court O P R E D E L I L: Decision of the district court No. 2 of Almaly district of Almaty dated 07.06.2017 According to the claim of Platinum Collection LLP to the MEA for debt collection, it is necessary to cancel, resume and schedule a court hearing for 02/21/2018 at 10.20 a.m. Subsequently, we sent an Objection to the statement of claim for debt collection to the court, where we expressed our position that we partially disagree with the Claim of Almaty Collection Group LLP on the following grounds: in accordance with the Bank Loan Agreement for the Provision of Consumer credit dated 04/02/2013, concluded between Alliance Bank JSC and M.E.A., the latter was granted a bank loan in the amount of KZT 3,089,473.00 on 26.06.2015. The Bank, as the Assignor, has entered into a Factoring Agreement for No.1.2-14-2/547- 2015 with the Debtors Bureau LLP, according to which the Bank fully ceded its right of claim under the Bank Loan Agreement (hereinafter DBZ) to the defendant in favor of the Debtors Bureau LLP. Further, the Bureau for Work with Debtors LLP, the Bank and the Special Financial Company KOR-INVEST LLP concluded an Additional Agreement No.1.2-14-2/547-2015/2 dated 07/23/2015 to the Factoring Agreement, according to which the rights and obligations of the Assignee were assigned in favor of the LLP "Special Financial Company "KOR-INVEST" under the Factoring Agreement. In turn, LLP "Special Financial Company "KOR-INVEST" concluded a Trust Management Agreement No.049/022-1 dated 02.12.2015 with LLP "Platinum Collection", according to which LLP "Platinum Collection" in the interests of LLP "Special Financial Company "KOR-INVEST" carries out actions to collect Debtors' debts on A factoring agreement on assigned claims against Debtors under Bank Loan Agreements. At the time of assignment of the claim, the defendant's debt amounted to 4,226,946.00 tenge, of which: the principal debt – 3,043,469.00 tenge, remuneration – 972,026.00 tenge, commission – 0 tenge, penalty – 211,451.00 tenge As the credit history of the loan shows, the defendant due to financial difficulties, namely temporary loss He was forced to pay for the work incompletely and repeatedly contacted Platinum Collection LLP verbally and in shifts due to financial difficulties, – for the possibility of continuing to fulfill their obligations in monthly payments of 25,000 tenge or granting a deferral of obligations under the Loan Agreement or giving some preferential opportunities, as well as attempts to resolve the current situation in a pre-trial manner peacefully. However, Platinum Collection LLP simply ignored all attempts. However, the Defendant did not stop fulfilling his obligations to the best of his ability, and as of 11.01.2018, the Defendant had paid 315,000 tenge, as evidenced by the receipts in the appendix. In fact, it turned out that after a difficult financial period for himself, during which the defendant was unable to pay the loan fees, the plaintiff placed the defendant in bonded conditions, under 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.
Cancellation of the simplified court decision and reduction of the Plaintiff's claim
Being a decent and responsible person, the Defendant has never refused to fulfill his debt obligations to Platinum Collection LLP and has always been open to constructive dialogues. However, Platinum Collection LLP 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." In an article in 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 (penalties) to be collected are deliberately increased, which ultimately leads to an increase in the amount of total debt and foreclosure on collateral property, the value of which is disproportionate to the loan received." We believe that the employees of Platinum Collection 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 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, although he does not fulfill obligations in full and to the terms of the contract, which raises doubts on 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 2016, and not as in 2017, based on the above, we observe the creditor's guilt.
Cancellation of the simplified court decision and reduction of the Plaintiff's claim
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. In terms of accrued penalties, we 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 of Banking Activity, which 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 Almaty Collection Group LLP and the defendant, the plaintiff intentionally delayed the deadline for filing a lawsuit, thereby artificially inflating 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 eliminate them. reduction. 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 amount of the Defendant's debt should be calculated 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, I ask the Court to take into account the difficult financial situation of the defendant and the unreasonable inaction of Platinum Collection LLP for a long time, which led to an excessive increase in the amount of penalties and remuneration, and to make a decision in accordance with the principles of good faith, reasonableness and fairness.,
THEY ASKED THE COURT: In terms of accrued penalties, KZT 211,451.00 should be changed by reducing to 10% since the amount of the penalty (penalty) in the claim is excessively large; In terms of collecting the Principal Debt, taking into account the amounts paid, it should be changed with a decrease from KZT 3,043,469 to 2,728,469. On March 07, 2018, the District Court No. 2 of Almaly district of Almaty, consisting of the presiding judge Aitzhanova G.B., with the participation of the representative of the plaintiff of Platinum Collection LLP, Agiev N.A., by proxy dated 01/03/2018, the representative of the defendant M.E.A.- Sarzhanova G.T. by a power of attorney dated 07.02.2018, having considered in open court a civil case on the claim of the Limited Liability Partnership "Platinum Collection" to M.E.A. for debt collection, Based on the above and guided by Articles 223-226 of the Civil Procedure Code of the Republic of Kazakhstan, the court DECIDED: The claims of the Limited Liability Partnership "Platinum Collection" to M.E.A. E. A. on debt collection – partially satisfy. Collect from M.E.A. in favor of the Limited Liability Partnership "Platinum Collection" the amount of debt in the amount of 3,921,640 (three million nine hundred twenty one thousand sixty forty) tenge, the state fee in the amount of 117,649 (one hundred seventeen thousand six hundred forty nine) tenge, commission in the amount of 210 (two hundred ten) and postage incurred in the amount of 190 (one hundred and ninety) tenge. To dismiss the rest of the claim.
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