Debt collection, finding the unpaid balance of loans received from the bank during the period of marriage as joint debt
The court incorrectly applied the material law in the civil case of weapons. N. in his statement of claim, the defendant asked S. to recover in his favor the balance of 2,709,440 tenge of unpaid loans received twice from the Kyzylorda branch of BTA Bank JSC during the period of marriage as a common debt, that is, 1,490,192 tenge. The statement of claim was dismissed by the decision of the Kyzylorda City Court of August 29, 2013, which was left unchanged by the decision of the judicial board for civil and administrative cases of the Kyzylorda Regional Court of October 30, 2013. By the decision of the Judicial Board of Cassation of this court dated February 11, 2014, the decision of the court and the decision of the Judicial Board of Appeal were left unchanged. In his appeal, N. disagreed with the judicial acts adopted in the case, asked to cancel them and make a new decision on the satisfaction of the claim. The supervisory judicial board heard the explanation in support of the appeal of the plaintiff N. in the case, the prosecutor's conclusion that the judicial acts are subject to cancellation and the case is subject to fresh consideration by the court of Appeal, checked the case documents and concluded that the disputed judicial acts are subject to cancellation on the following grounds. In accordance with Part 3 of Article 387 of the code of Civil Procedure of the Republic of Kazakhstan (hereinafter referred to as the code of civil procedure), a significant violation of material norms or procedural law is the basis for reviewing decisions, rulings, decisions of the court that have entered into legal force in the order of supervision. According to the case documents, the parties have been legally married since December 14, 2004. During the period of cohabitation, the plaintiff received a loan of 4,900,000 tenge under the bank loan agreement No. 1001/06/102/78 dated April 24, 2006. This loan was issued on the basis of a purchase and sale agreement from the akimat of Kyzylorda, 58 Bukharbay batyr Street, apartment 41 (hereinafter referred to as the apartment).N. on March 10, 2011, on the basis of a bank loan agreement No. 1001/2011/L/53568, he purchased a Toyota Camry car on a loan in the amount of 914,000 tenge.
Debt collection, finding the unpaid balance of loans received from the bank during the period of marriage as joint debt
The marriage between the parties was terminated by a court decision on August 05, 2011. By the decision of the Kyzylorda City Court of October 11, 2012, A.'s claim was partially satisfied, and the above-mentioned common property – the apartment-was left to N., from which, as a share in favor of S. and his minor child, 55 percent of the estimated market value of real estate amounted to 8,455,067 tenge, that is, 4,450,286. 85 tenge. The court concluded that the apartment acquired at the time of the spouses ' cohabitation is their property in common ownership. According to the expert opinion No. 1498 dated September 27, 2012, the average market price of an apartment that is the common property of the parties was 8,455,067 tenge. The court of first instance, making a decision on the case, found that the plaintiff had no reason to recognize the loan debt of the Toyota Camry car, which was borrowed on March 10, 2011 on the basis of a bank loan agreement in the amount of 914,000 tenge, as a common debt between the parties. Applicant N. On May 17, 2010, the State Mark N 039 DDM of his own ownership "Mehrsedes Benz 190" was transferred by power of attorney to S. with his consent, he received a loan and purchased the above-mentioned car. According to the evidence attached to the case, when the marriage between the parties was dissolved, 1,909,968 tenge from the loan No. 1001/06/102/78 dated April 24, 2006, and 799,472 tenge from the loan No. 1001/2011/L/53568 dated March 10, 2011, a total of 2,709,440 tenge remained unpaid.
From these loans, debts that remained unpaid according to the payment schedule were paid: the first loan until March 2012, the second in September 2012 by N. himself. Certificates issued by the bank about residual debts and their full payment were submitted by the plaintiff as evidence to the court of first instance when considering a civil case. N. in the statement of claim, the bank did not recognize the funds provided on credit as a common debt and did not ask for distribution. On the contrary, it was not paid when the marriage broke up, which was later paid by the plaintiff himself, and the balance of the loan funds was recognized as a common debt and asked to be divided. In accordance with paragraphs 2 and 3 of Article 37 of the Code of the Republic of Kazakhstan" on marriage (matrimony) and family", the common property of spouses may be divided between spouses by their agreement. In the event of a dispute, the division of the common property of the spouses, as well as the determination of the spouses ' shares in this property, is made in court. Paragraph 16 of the normative resolution of the Supreme Court of the Republic of Kazakhstan dated April 28, 2000 No. 5" on the application of the law by courts when considering cases on the dissolution of marriage (matrimony) " explains that the court takes into account the right to claim the common debt held by the spouses at the time of consideration of the case (paragraph 3 of Article 38 of the code) and obligations arising from the interests of the family. However, the adopted judicial acts do not meet the requirements of the current law.
Debt collection, finding the unpaid balance of loans received from the bank during the period of marriage as joint debt
The judicial stages did not fully, comprehensively, objectively check the subject of the civil dispute. When the parties live in a legal marriage relationship and run a common household, the loan received on April 24, 2006 was allocated as common property between the parties by a court decision, the above-mentioned apartment was purchased, and on March 11, 2011, this loan was used to purchase a Toyota Camry car. These circumstances are not ruled out by the defendant. In addition, the court of first instance did not take into account the fact that the plaintiff N. on May 17, 2010 transferred the car of the brand "Mehrsedes Benz 190" in his ownership to the defendant S. The remaining unpaid debts from the above two loans were paid in full by the plaintiff after the divorce from the marriage with the defendant N. This situation also does not cause disputes between the parties. Therefore, the judicial stages came to the erroneous conclusion that the debts left over from the loans received, which were not paid after the termination of the marriage relationship, are not the common debt of the parties. The claim of N. is supported by objective evidence, and the defendant S. he did not submit to the court the circumstances to which he refers as the grounds for his objections. According to the evidence collected in the case, the amount of unpaid debt from two loans received by the parties after the termination of the marital relationship is 2,709,440 tenge.
And, taking into account the 55 percent shares of the defendant S. and his minor child in the common property, it is proved that the amount collected from the defendant in favor of the plaintiff is equal to 1,490,192 tenge. In this case, the acts of the courts of the first, appellate and Cassation instance are subject to cancellation. However, due to a mistake in the application of the norms of material law, the supervisory judicial board does not send the case for a new consideration, but comes to the conclusion that there are grounds for making a new decision on the satisfaction of N.'s claim.Based on the above, the supervisory judicial board made a new decision on the case, canceling the decision of the court of first instance, the decisions of the appellate and Cassation judicial boards of the regional court, that is, half of the common debt in favor of the plaintiff N. from the defendant S. 1,490,192 (one million four hundred and ninety thousand one hundred and ninety-two) tenge and 14,902 (right four thousand nine hundred and two) tenge of state duty were collected. The plaintiff's request was granted.
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