Complaint against the court's decision to recover the amount owed under the bank loan agreement
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To the Appellate Judicial Board of the Karaganda Regional Court of Karaganda,
100,000 ave. Bukhar-Zhyrau 37.
from: __________ IIN __________ Address: Almaty, ___________________
Proxy representative: Galymzhan Turlybekovich Sarzhanov
IIN: 850722301036. Almaty, Medeu district,050002, Zhibek Zholy ave.,
50 Business center Block, office No.202. info@zakonpravo.kz phone: 8 707 (708) 578 57 58
THE APPEAL
on the decision of the Zhezkazgan City Court of the Karaganda region dated May 31, 201_goda. May 31, 201_year
Zhezkazgan City Court of the Karaganda region, composed of the presiding judge _______________ under the secretary _______________ having considered in open court the civil case on the claim of the joint-stock company (hereinafter - JSC) "__________" to _______________ about collecting the amount owed under the bank loan agreement, I decided to satisfy it.Collect from __________ in favor of the joint-stock company "__________" the amount of the principal debt is 2,284,214 tenge, remuneration is 174,123.44 tenge, the amount of the state duty paid – 73,750 tenge, a total of 2,458,338 (two million four hundred and fifty-eight thousand three hundred and thirty-eight) tenge.We consider the decision of the court of first instance to be illegal, unjustified and subject to change on the following grounds: August 29, 2007 on the basis of a bank loan agreement №_______________ JSC "____________" provided by _______________ a loan in the amount of KZT 3,024,100 for the purchase of real estate, for a period of 180 months, including remuneration in the amount of 15.5%. April 19, 20__ between JSC "____________"_______________ and _______________ Additional Agreement No. 1 to the Agreement has been concluded (under the state mortgage loan refinancing program) according to which _______________ ( the borrower) and _______________ ( the co-borrower) jointly represent one party, while all the rights and obligations of the borrower relate to to the borrower and the co-borrower equally.
The refinanced debt as of the date of conclusion of the Supplementary Agreement No. 1 amounted to 2,932,091 tenge. December 29, 20__ between JSC "____________",_______________ and _______________ Additional agreement No. 2 has been concluded, according to which the loan term has been extended to 188 months. February 09, 201_ to the Bank Loan Agreement №_______________ An additional agreement has been concluded. As a guarantee of proper fulfillment of obligations under the concluded Bank Loan Agreement, in accordance with the relevant real estate pledge agreement no. DZ bank loan №_______________ dated August 29, 20__ (Supplementary Agreement No. 1 dated April 19, 2009. Additional Agreement No. 2 dated December 29, 20__) real estate is pledged: 2-room apartment, total area of 40.60 sq. m, including residential 27.50 sq. m, located at the address Karaganda region Zhezkazgan Seifullina str., 34 sq. 75).
According to the calculation of the debt, as of the time of filing the Claim, the amount of debt amounted to 2,458,337.44 tenge (principal debt 2,284,214 tenge, remuneration 174,123.44 tenge) and the refund of state duty in the amount of 73,750 tenge.In view of the global crisis that has come, which is reported in the annual messages to the people of the Republic of Kazakhstan by the Leader of the Nation, President of the Republic of Kazakhstan Nursultan Nazarbayev, who every time calls on everyone to be loyal in difficult times for the people. However, due to Financial difficulties, the defendants were unable to fulfill their contractual obligations to the bank, and the defendants did not refuse to fulfill their obligations and always asked for preferential opportunities to fulfill their obligations in monthly payments, as evidenced by numerous letters to the bank and the responses received.
Whereas, according to paragraph 2 of Article 35 of the Law of the Republic of Kazakhstan "On Banks and Banking Activities in the Republic of Kazakhstan", the amount of the penalty (fine, penalty) for violating the obligation to repay the loan amount and 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., but not more than ten percent of the loan amount for each year of the bank loan agreement.According to Article 36 of the Law of the Republic of Kazakhstan "On Banks and Banking Activities in the Republic of Kazakhstan", upon the occurrence of a delay in fulfilling an obligation under a bank loan agreement, the bank is obliged to 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.
If the requirements are not satisfied, the bank has the right to apply debt collection measures provided for by Law to the borrower.However, the Bank did not take any debt collection measures and refused all our Written requests to continue fulfilling our obligations. Thus, they were not given the opportunity to fulfill their obligations.Also, only the actual amount of the Bank's remuneration, which was formed before 201_, is subject to collection of the amount of the Bank's remuneration. Because the last payment was made in 201_. Thus, the bank proves that the Bank recognized the fact of a violation on the part of the bank, whereas the Plaintiff, after 40 days, 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 the Bank and the defendant, the plaintiff intentionally delayed the deadline for filing a lawsuit, thereby artificially inflating the amount of remuneration and penalties due.
Why did the plaintiff, knowing about the current situation under this Loan Agreement already in 201_, not suspend the accrual of penalties and remuneration, but applied to the court for debt collection only in 201_?According to Article 224 of the CPC, the court's decision must be lawful and justified.A decision is lawful when it is made in compliance with the norms of procedural law and in full compliance with the norms of substantive law applicable to this legal relationship, or is based on the application, if necessary, of a law governing a similar relationship., or it proceeds from the general principles and meaning of civil legislation and the requirements of good faith, reasonableness and fairness.A decision is considered justified if it reflects facts relevant to the case, confirmed by evidence examined by the court that meet the requirements of the law on their relevance, admissibility and reliability, or are well-known circumstances that do not need to be proven and are collectively sufficient to resolve the dispute.The court's decision was made in case of non-compliance with the above requirements.According to article 427 p. 4, the CPC substantive law norms are considered violated or improperly applied if the court applied a law that is not applicable, misinterpreted the law.
Complaint against the court's decision to recover the amount owed under the bank loan agreement When resolving the dispute, the court did not apply the applicable rules of substantive law, which led to an incorrect resolution of the case and an illegal decision.In satisfying the claim, the court reasoned its conclusions with reference to Articles 223, 260-264 of the CPC RK.However, the court did not apply Articles 297, 722, 728 of the Civil Code of the Republic of Kazakhstan, applicable substantive law norms.So, in accordance with paragraph 3 of art. 722 of the Civil Code of the Republic of Kazakhstan if the contract provides for the return of the loan item in parts (in installments), then if the borrower violates the deadline set for the return of the next part of the loan item, the lender has the right to demand early repayment of the entire remaining part of the loan item along with the remuneration due.The paragraph of this article of the law states that if the contract provides for the payment of remuneration on a loan in advance of the repayment period of the loan itself, then in case of violation of the deadline set for the payment of remuneration, The lender has the right to demand from the borrower the early repayment of the loan item along with the remuneration due.
In accordance with Article 728 of the Civil Code of the Republic of Kazakhstan, the provisions of paragraphs 3 and 4 of Article 722 of this Code apply to a bank loan agreement if the borrower violates the deadline set for repayment of the next part of the loan and (or) payment of remuneration for more than forty calendar days.In addition, the court based the decision on the plaintiff's arguments about the defendant's debt, which were not supported by evidence. At the same time, the court did not find out what exactly is the basis for the claim to recover from the defendant an amount almost equal to the amount of the loan provided. The court did not require the plaintiff to calculate, decipher the amount of the claim, and did not investigate the validity of the claims.According to Article 68 of the Law of the Republic of Kazakhstan "On Housing Relations", Borrowers belong to socially vulnerable segments of the population.
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.
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