Complaint about the notary's actions in refusing to issue a resolution on the cancellation of the executive inscription

Attention! The Law and Law Law Company draws your attention to the fact that this document is basic and does not always meet the requirements of a specific situation. Our lawyers are ready to assist you in drafting any legal document that suits your situation. For more information, please contact lawyer Kenesbek Islam by phone; +7 (708) 971-78-58; +7 (727) 971-78-58.

District Court no.2 Auezovsky district of Almaty

From the applicant: .............. IIN ................. Almaty, md.-..................., Tynybayeva St. No. 34

Proxy representative: Law and Law Law Company LLP, represented by

CEO Galymzhan Turlybekovich Sarzhanov BIN 190240029071

79 Abylai Khan Ave., office 304, Almaty.

info@zakonpravo.kz / www.zakonpravo.kz + 7 727 978 5755; +7 708 578 5758;

The person whose actions are being appealed:

Notary Public ............. License № ................ dated September 02, 2014, Almaty,

 md. Zhetysu-1, 48A building, office. 25. +7 705 877 00 13.

Complaint about the notary's actions in refusing to issue a resolution on the cancellation of the executive inscription

February 17th 2020 ................... (hereinafter referred to as the applicant) received from a private bailiff by e–mail executive order No. 130 (hereinafter referred to as the executive order), which was issued by notary Zhantoleuova Assel Sydyhanovna (hereinafter referred to as the notary) on January 20, 2020. When studying the executive inscription, we found out that the Notary had established the amount of debt. ..................... before ................... IIN ............, in the amount of 3,773,000 (three million seven hundred and seventy-three thousand) tenge, and the costs incurred by the recoverer for the execution of the executive inscription in the amount of 8,872 (eight thousand eight hundred and seventy-two) tenge, of which the state fee in the amount of 1,326 tenge, for legal and technical services 7,546 tenge, the total amount to be recovered in the amount of 3 781 872 (three million seven hundred eighty one thousand eight hundred seventy two) tenge.

Complaint about the notary's actions in refusing to issue a resolution on the cancellation of the executive inscription

We do not agree with the executive order, for the following reasons: 1.In accordance with paragraph 2 of art.92-1 of the Law of the Republic of Kazakhstan "On Notaries" (hereinafter referred to as the Law), debt collection is carried out on the basis of an executive inscription or a corresponding resolution for the following indisputable requirements: 2) on the fulfillment of an obligation based on a written transaction, the due date of which has come and non-fulfillment of the obligation is recognized by the debtor, including in response to a claim sent to the recoverer in the pre-trial settlement of the dispute. In our case, the requirement is ................. IIN .............. it is not indisputable, since we do not agree with the established amount of debt. Also gr. ................, The pre-trial claim was not received, and she did not recognize the non-fulfillment of the obligation as payments were being made. 2. The applicant has not received a copy of the executive inscription from the notary. This violated the requirements of Articles 92-6 of the Law, since according to paragraph 1 of Article 92-6 of the Law, after making an executive inscription, the notary sends a copy of it to the debtor with a notification of delivery no later than the next business day.

And in turn, the debtor has the right, within ten working days from the date of receipt of a copy of the executive inscription, to send objections to the stated claim in writing with notification to the notary who executed the executive inscription. 3. The notary has not established or clarified the amount of debt from the loan received.   The payments made by gr were also not taken into account.. ................ on account of repayment of the loan, where is the gr itself. ...................., and her daughter................. payments were made to repay the amount of debt in the amount of: 17,000 tenge on 08/31/2019; 183,000 tenge on 09/15/2019; 11,000 tenge on 17.09.2019; 25,000 tenge on 25.11.2019. as confirmed by us, copies of the receipt and other supporting documents are attached to this Complaint. In total, 236,000 tenge was transferred to repay the debt. Thus, the notary violated the requirements of paragraph 3 of art.92-1 of the Law.

Complaint about the notary's actions in refusing to issue a resolution on the cancellation of the executive inscription

4. According to paragraph 3 of art.92-1 of the Law, penalties (penalties) and interest, if any, are not collected on the basis of an executive inscription. By virtue of clauses 2 of Articles 92-6 of the Law, the debtor has the right, within ten working days from the date of receipt of a copy of the executive inscription or the relevant resolution, to send objections to the stated claim in writing with notification to the notary who executed the executive inscription or issued the relevant resolution. According to paragraph 3 of Articles 92-6 of the Law, the debtor's objection must contain the reasons for disagreement with the stated claim. In this regard, on February 24, 2020, we deliberately submitted an objection to the executive inscription to the Notary. In accordance with paragraph 1 of Articles 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.

According to paragraph 1 of Articles 92-6 of the Law, after making an executive inscription or issuing a corresponding resolution, the notary, no later than the next business day, hands over or sends a copy of them to the debtor at the e-mail address or at the debtor's known place of residence (location) or registration using means of communication that ensure the recording of delivery. In turn, the Notary sent a response to our objection only on February 28, 2020 by e-mail, since the Notary's decision was made on February 26, 2020, the Notary was supposed to send a response to our objection on February 27, 2020, in this regard, the Notary's actions violated paragraphs 1, art.92-6 of the Law "On Notary Office". And also in his resolution No. 7, the Notary indicates that the writ of execution was properly sent to the Applicant at his last place of residence by registered mail with a notification of its delivery and, in connection with this, the applicant allegedly missed the deadline for filing an objection to the writ of execution. These arguments of the notary do not correspond to reality, since the Applicant received the executive inscription only on February 17, 2020 from a private bailiff.

Accordingly, we immediately sent an objection to the Notary's executive inscription in accordance with the law "On Notaries". The Notary also refers in his reply to paragraph 3, Articles 92-6 of the Law stating that the Applicant's objection must contain the reasons for disagreement with the stated requirement. The reasons for our disagreement were set out in detail in the objection, with references to the norms of legislation. However, the notary unlawfully refused to issue a resolution on the cancellation of the executive inscription.

Complaint about the notary's actions in refusing to issue a resolution on the cancellation of the executive inscription

Thus, the notary's actions to refuse to issue a resolution on the cancellation of the executive inscription are illegal. In accordance with Articles 92-8, 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. Based on the above and guided by Articles 92-8 of the Law "On Notaries"

I ask the Court:

1. To recognize the actions of a notary as illegal .................... upon refusal to issue a resolution on the cancellation of the executive inscription No. 130 dated January 20, 2020 2. Assign to the notary ................ obligations to eliminate violated rights ……………………

With respect,

General Director of Law Company Law and Law LLP Sarzhanov G.T. 02/29/2020

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