Complaint against the notary's actions to the Court, the Prosecutor's Office, the Department of Justice on the refusal to issue a resolution on the cancellation of the executive inscription
On February 17, 2020, the CMA (hereinafter referred to as the applicant) received from a private bailiff by e–mail executive order No. 130 (hereinafter referred to as executive order), which was issued by notary Asel Sydyhanovna Zhantoleuova (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 owed by the CMA to the CX IIN...., in the amount of 3,773,000 (three million seven hundred 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 seventy-two) tenge, of which of these, the state fee is 1,326 tenge, for legal and technical services 7,546 tenge, the total amount to be collected is 3,781,872 (three million seven hundred eighty-one thousand eight hundred seventy-two) tenge. Subsequently, we filed an Objection to the executive inscription within the time limits prescribed by law, but the Notary, without paying attention to all our arguments, refused to cancel the Executive Inscription by her resolution No. 7. Subsequently, we filed a Complaint against the notary's actions to the Court, the Prosecutor's Office, and the Department of Justice for refusing to issue a resolution to revoke the executive inscription. We did not agree with the executive order, for the following reasons:
In accordance with paragraph 2 of Articles 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 the 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.
Complaint against the notary's actions to the Court, the Prosecutor's Office, the Department of Justice on the refusal to issue a resolution on the cancellation of the executive inscription
In our case, the requirement is CX IIN.... it is not indisputable, since we do not agree with the established amount of debt. Also, gr. Sh.M.A., the Pre-trial claim was not received, and she did not recognize the non-fulfillment of the obligation since payments were made.
The applicant did not receive 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.
The notary has not established or clarified the amount of debt from the loan received. Also, the payments made by gr. Sh.M.A. to repay the loan were not taken into account, where gr.Sh.M.A. herself and her daughter Sh.Zh. made payments to repay the amount owed in the amount of:
17,000 tenge on 08/31/2019;
183,000 tenge in 15.09.2019;
11,000 tenge 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.
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.
Complaint against the notary's actions to the Court, the Prosecutor's Office, the Department of Justice on the refusal to issue a resolution on the cancellation of the executive inscription
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. 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", the Court, the Prosecutor's Office, and the Department of Justice were asked to: Recognize as illegal the actions of notary Zhantoleuova Assel Sydyhanovna in refusing to issue a decree on the cancellation of the executive inscription No. 130 dated January 20, 2020; Assign duties to notary Zhantoleuova Assel Sydyhanovna to eliminate violated SHMA rights. As a result of Complaints about the notary's actions to the Court, the Prosecutor's Office, and the Department of Justice regarding the refusal to issue a resolution on the cancellation of the executive inscription, the Notary, realizing her mistake, independently canceled her wound enforcement inscription by her Resolution No. 9.
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