Disputes between creditors and heirs

According to paragraphs 3, 4, 5 of Article 8 of the Civil Code, actions of citizens and legal entities aimed at harming another person, abuse of the right in other forms, as well as the exercise of the right in contradiction with its purpose are prohibited. In case of non–compliance with the requirements provided for in paragraphs 3-5 of this Article, the court may refuse to protect the person's right to DB "N" JSC in Kazakhstan (hereinafter referred to as the Bank) to file a lawsuit with the court against I., with the involvement of a third party B., to compel the defendant to forcibly register ownership of the collateral adopted by inheritance. immovable property after the death of the testator (mortgagor) J. I. he appealed to the court with a counterclaim to the Bank to declare the pledge agreement and the loan agreement invalid on the grounds that the Bank did not check the solvency of borrower B., who had a monthly income of 200,000 tenge, the loan was issued for the purpose of raiding the pledged object - an apartment building, the loan agreement does not comply with the law and is an imaginary transaction, the pledge agreement by the pledgor Zh . not signed.

Disputes between creditors and heirs

By the decision of the Bostandyk District Court of Almaty dated July 4, 2018, the Bank's claim and counterclaim were denied. By the decision of the Judicial Board for Civil Cases of the Almaty City Court dated November 8, 2018, the decision of the court of first instance remained unchanged. The Judicial Board for Civil Cases of the Supreme Court has changed the judicial acts of local courts and cancelled the rejection of the claim of DB "N" JSC in Kazakhstan with a new decision on the satisfaction of the claim. Obliged And. register ownership of real estate located at the address: Almaty, Kok-Shoki microdistrict, Selezashchita block, house No. 16, for the following reasons. As follows from the case file, on January 25, 2012, a bank loan agreement No. DBZ-0390 was concluded between the Bank and B., according to which the borrower was granted a loan in the amount of 60,000,000 tenge, for a period of 60 months, with an interest rate of 16% per annum, on the terms of security, urgency, payment, repayment. To ensure the fulfillment of loan obligations by the owner of Zh. real estate located at the address: Almaty city, Kok-Shoki microdistrict, Selezashchita block, house No. 16 (hereinafter referred to as the disputed collateral) was pledged under the pledge agreement dated January 25, 2012 no. DZN-0325. By the decision of the Karasai District Court of the Almaty region dated February 10, 2016, a debt in the amount of 53,745,325 tenge and a state duty in the amount of 1,612,360 tenge was collected from B. in favor of the Bank. The court's decision has entered into legal force, but the debtor has not executed it. On November 4, 2012, the mortgagor Zh. died, and the first-line heirs are B.'s husband, I.'s son, and S.'s daughter. By the decision of the Karasai District Court of March 3, 2014, I. restored the deadline for accepting the inheritance, the court recognized him as having accepted the inheritance, B. and S. restored the deadline for renouncing the inheritance. By statements dated April 8, 2014 and September 15, 2016, addressed to the notary K., I. and B. refused to accept the inheritance in favor of S. On April 7, 2015, the heir I. a certificate of inheritance has been issued, consisting of non-property rights and obligations, namely: the right to apply to authorized bodies and non-governmental organizations for documents, duplicates, archival certificates and registration of documents for immovable property for the testator Zhumaeva B. The Bank has filed a present claim to compel I. to register ownership of disputed collateral property in the judicial authorities, indicating that the defendant is evading registration of ownership of the inherited property, which is collateral under the loan agreement.

The courts of the first instance and the courts of appeal refused to satisfy the Bank's claim by saying that I. had been issued a certificate of non-property rights and obligations, respectively, he did not have ownership of the dwelling or part of it on the grounds specified in Article 12 of the Law "On Housing Relations". In this regard, the local courts did not find any legal grounds for the defendant to register ownership of the disputed collateral. In the opinion of the judicial board, these conclusions of the lower courts do not correspond to the circumstances of the case, based on a misinterpretation of substantive law. The procedure for accepting an inheritance after the expiration of the term established by law is regulated by Article 1072-3 of the Civil Code of the Republic of Kazakhstan (hereinafter referred to as the Civil Code), according to which, at the request of the heir who missed the deadline for accepting the inheritance (Article 1072-2 of the Civil Code), the court may restore this period and recognize the heir as having accepted the inheritance if the heir missed this period for valid reasons and provided that the heir who has missed the deadline for accepting the inheritance has applied to the court within six months after the reasons for missing this deadline have disappeared. According to paragraph 4 of Article 1072, paragraph 1 of Article 1072-1 of the Civil Code, paragraph 6 of the normative resolution of the Supreme Court of the Republic of Kazakhstan "On certain issues of the application of inheritance legislation by courts" dated June 29, 2009 No. 5, accepted inheritance is recognized as belonging to the heir from the date of the opening of the inheritance, regardless of the time of its actual adoption, as well as regardless of the moment of state registration the rights of the heir to the inherited property, when such a right is subject to state registration. Acceptance of an inheritance is carried out by submitting, at the place of opening of the inheritance, to a notary or an official authorized in accordance with the law to issue a certificate of inheritance to an official, an application from the heir for acceptance of the inheritance or an application from the heir for the issuance of a certificate of inheritance. An inheritance accepted in accordance with the established procedure is recognized as belonging to the heir from the date of its opening. In accordance with paragraph 2 of Article 1072-1 of the Civil Code, it is recognized that the heir has accepted the inheritance if he has performed actions indicating the actual acceptance of the inheritance. The fact of acceptance And. the inheritance of property after the death of the mother was established by the decision of the Karasai District Court of March 3, 2014, which entered into force, and is also confirmed by obtaining a certificate of inheritance for non-property rights. However, with respect to the disputed collateral, the defendant has not taken measures to register ownership rights. In accordance with Article 1081 of the Civil Code, creditors of the testator have the right to present their claims arising from the obligations of the testator to the heirs who are responsible as joint debtors within the limits of the value of the property transferred to each heir.

If the heirs who have accepted the inheritance evade registration of the property included in the inheritance or the rights to it, the creditors of the testator have the right to demand compulsory registration. The circumstances established in the case testify to I.'s assumption of inheritance rights after the death of his mother, J., and the use of the disputed collateral for its intended purpose. In accordance with Article 287 of the Civil Code, the defendant who accepted the inheritance, along with borrower B., bears full joint responsibility for fulfilling obligations to the Bank, within the limits of the value of the inherited property transferred to him. The judicial board regards the defendant's unwillingness to legitimize the inheritance he actually accepted, in which he lives with his family, as an intention to avoid foreclosure on disputed collateral, which entails a violation of the Bank's rights as a mortgagee. Actions of the defendant And. They contradict the requirements of paragraphs 3, 4 of Article 8 of the Civil Code, according to which the exercise of civil rights should not violate the rights and legally protected interests of other subjects of law.

Citizens and legal entities must act in good faith, reasonably and fairly in exercising their rights, observing the requirements contained in the legislation, the moral principles of society, and entrepreneurs, as well as the rules of business ethics. Good faith, reasonableness and fairness of the actions of participants in civil law relations are assumed. On the basis of paragraph 5 of the said norm of the law, actions of citizens and legal entities aimed at harming another person, abusing the right in other forms, as well as exercising the right in contradiction with its purpose are prohibited. In case of non-compliance with the requirements provided for in paragraphs 3-5 of this article, the court may refuse to protect the person's right. Since the defendant's actions are aimed at evading his duties to register the accepted inherited property, the Bank's claim is legitimate. On the basis of parts 1, 3 of Article 109 of the Civil Procedure Code of the Russian Federation, the court costs of paying the state fee in the amount of 1,203 tenge, as well as the costs of paying the state fee for filing a reasoned petition by the plaintiff for the review of judicial acts in cassation in the amount of 602 tenge, are subject to recovery in favor of the Bank. 

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