Disputes on the appeal of actions (inaction) of bailiffs

 

Disputes also arise on the issue of:

- execution of court decisions on foreclosure on property with the establishment of the initial selling value;

- inclusion and exclusion from the register of debtors.

According to paragraph 3 of Article 21 of the Law of the Republic of Kazakhstan "On Mortgage", when making decisions on foreclosure on real estate mortgaged under a mortgage agreement, the court must determine and indicate in the decision the initial sale price of the mortgaged real estate upon its sale.

By virtue of paragraph 12 of the NP of the Supreme Court "On the application by courts of certain norms of legislation on enforcement proceedings", if there is a court decision that has entered into force on foreclosure on mortgaged property, in which the court determined its initial selling value, a re-evaluation is not required as part of the execution of this court decision. Such claims should be returned in accordance with subparagraph 12) of the second part of Article 138 of the APPC, since within the framework of the APPC, debtors appeal against the actions of the CSI to sell property at a value determined by the court.

During the execution of court decisions on foreclosure on collateral with the establishment of the initial selling value, disputes arise regarding the need to assign an assessment.

The parties to the enforcement proceedings are motivated by the fact that, as a rule, a considerable time has passed since the date of the court's decision, the value determined by the court is irrelevant and the sale of property at an undervalued price will lead to a violation of the rights of the parties to the enforcement proceedings.

However, by virtue of Article 21 of the CPC, judicial acts that have entered into force are binding on everyone and are subject to execution throughout the territory of the Republic of Kazakhstan.

By virtue of part 4 of Article 241 of the CPC, the executive document must state: the operative part of the decision (verbatim).

Thus, the court's decisions must be executed in strict accordance with its text.

Therefore, there is no reason or need for a re-evaluation.

At the same time, taking into account the rapid change in the market value of property, a number of civil courts, when deciding on foreclosure on property, do not specify a specific value, but indicate the need to sell the property at the market value determined by the CSI at the time of the compulsory sale. We consider this practice to be more in line with the interests of the parties.

To implement this proposal, it is necessary to amend the NP of the Supreme Court "On the application by courts of certain norms of legislation on enforcement proceedings."

Also, administrative claims by debtors in enforcement proceedings are filed on issues of inclusion/exclusion from the register of debtors.

In accordance with article 36 of the Law on Enforcement Proceedings, the authorized body maintains a Unified Register of Debtors in order to carry out the tasks necessary for the enforcement of enforcement documents. Information about debtors is posted on the official Internet resource of the authorized body. The unified register of debtors is formed and maintained through an automated information system for enforcement proceedings.

The authorized body responsible for the formation and maintenance of the register is the Ministry of Justice of the Republic of Kazakhstan.

At the same time, a unified register of debtors is formed and maintained through an automated information system for enforcement proceedings.

Information for inclusion in the Unified Register of Debtors, with the exception of information on debtors who do not have arrears in enforcement proceedings for periodic recovery of more than three months, as well as on enforcement documents on the adoption and cancellation of measures to secure a claim, shall be sent by bailiffs within three working days after the initiation of enforcement proceedings.

Paragraph 2 of article 36 of the Law on Enforcement Proceedings stipulates that the information includes:

last name, first name, patronymic (if any) of the debtor or the name of the debtor organization;

the body that issued the executive document, the date of issue and the content of the debtor's unfulfilled obligation;

the surname, first name, patronymic (if any) of the bailiff sending the specified information, the name and address of the territorial department or the address of the office of a private bailiff.

The debtor is excluded from the Unified Register of Debtors.:

1) after the termination of enforcement proceedings

2) in the absence of arrears in enforcement proceedings for periodic penalties;

3) after the end of the enforcement proceedings on the grounds provided for in article 48 of the Law on Enforcement Proceedings, when fulfilling the requirements of the enforcement document.

For example, in the proceedings of the CSI there was an enforcement proceeding on determining the time for meetings of the claimant with the son living with the mother (the debtor). When initiating enforcement proceedings, the CSI entered the plaintiff's data into the Unified Register of Debtors. The debtor appealed against the actions of the CSI to include him in the register of debtors. The court dismissed the claim. Thus, the CSI had no grounds for excluding the debtor from the register, since the execution was not carried out, the executive document was returned. The arguments about the need to restrict the free access of third parties to information about her personal and family secrets posted in the Unified Register were not accepted by the courts. From the analysis of the data from the Unified Register of Debtors, it follows that the register does not contain any information about the content of the judicial act and the unfulfilled obligation of the plaintiff (6001-22-00-6ap/76).

ANALYSIS of the Supreme Court of the Republic of Kazakhstan on the judicial practice of considering administrative cases challenging decisions, actions (inaction) of bailiffs for the second half of 2021 and the first half of 2022.

 

 

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