Disputes on the fulfillment of contractual obligations under a banking agreement

  According to clause 2 of Article 401 of the Civil Code, at the request of one of the parties, the contract may be amended or terminated by a court decision only in case of a material violation of the contract by the other party.

In accordance with paragraphs 1, 2 of art. 402 of the Civil Code, an agreement on the amendment and termination of a contract is made in the same form as the contract, unless otherwise provided by legislation, contract or business practices.

A claim to amend or terminate an agreement may be filed by a party in court only after receiving a refusal from the other party to the proposal to amend or terminate the agreement or failure to receive a response within the time period specified in the proposal or established by law or the agreement, and in its absence – within thirty days.

Indeed, under the terms of bank loan agreements, the bank has the right to withdraw all amounts owed under the agreement from all bank accounts of the borrower, both by direct debit and on the basis of payment documents that do not require acceptance by the borrower.

At the same time, the bank and the courts considering disputes in this category must take into account the provisions of Article 28 of the Constitution of the Republic of Kazakhstan, which provides that a citizen of the Republic of Kazakhstan is guaranteed a minimum wage and pension, social security by age, in case of illness, disability, loss of breadwinner and other legitimate reasons.

It is also necessary to take into account that, according to paragraph 3 of Article 137 of the Labor Code, the total monthly deduction may not exceed fifty percent of the salary due to the employee.

Based on these norms, banks are not entitled to withdraw all accrued wages, thereby depriving borrowers of the minimum wage guaranteed by the state.

Banks have the right to claim only 50% of wages, which is consistent with the Constitution of the Republic of Kazakhstan and labor legislation, and will also restore the rights of lenders by using their legitimate legal options for debt collection.

The arguments given by banks that there are contractual legal relations between the parties, regulated by the Law of the Republic of Kazakhstan "On Banks and Banking Activities", and the Labor Code can only regulate labor relations, are untenable.

Taking into account the nature and source of income received into salary card accounts, possible withdrawals in relation to it should be coordinated along with banking legislation and the Labor Code.

For disputes related to the conclusion, modification, termination of a bank agreement with a mortgage of real estate, with foreclosure on property

According to clause 1 of Article 317 of the Civil Code, foreclosure on mortgaged property in order to satisfy the claims of the pledgee (creditor) may be levied in the event of non-fulfillment or improper fulfillment by the debtor of the obligation secured by the pledge for which he is responsible.

A special regulatory act regulating mortgage relations is the Law of the Republic of Kazakhstan "On Mortgage of immovable Property", according to which the sale of mortgages in court is carried out by a court decision on the claim of the mortgagee. In this case, the sale of real estate, which is the subject of a mortgage, is carried out by selling at public auction.

Borrowers are not fulfilling their obligations to banks, and therefore banks are filing foreclosure claims against mortgaged property to repay the debt.

In accordance with subitem 3), clause 3, Article 21 of the Law of the Republic of Kazakhstan "On Mortgage of Immovable Property", when deciding on foreclosure on immovable property mortgaged under a mortgage agreement, the court must determine and indicate in the decision the initial sale price of the mortgaged property upon its sale.

In accordance with paragraph 1 of Article 318 of the Civil Code, the satisfaction of the mortgagee's claim from the value of the pledged property is carried out, unless otherwise established by this Code and other legislative acts or a contract, in court.

According to clause 2 of Article 318 of the Civil Code, in cases stipulated by the pledge agreement, as well as this Code and other legislative acts, the pledgee has the right to independently sell the pledged property in a compulsory out-of-court manner by bidding (auction).

The pledgee bank has the same right to sell the collateral securing the money loan.

In this case, the law establishes that the claim of the mortgagee is satisfied in court from the value of the pledged property, unless otherwise stipulated by the contract.

For example: The decision of the Alatau District Court of Almaty dated 08/06/2014, which refused to satisfy the claims of Nurbank JSC against IP "D" represented by D. et al. on foreclosure on collateral.

The Bank has not provided evidence of the impossibility of foreclosing on the mortgaged property out of court. There is also no evidence of the mortgagor's opposition to the sale of the pledged object, in particular, objections or obstruction by the defendants has not been established.

According to the requirements of the legislation and the terms of the real estate pledge agreement, the plaintiff did not lose the right to sell the pledged property through out-of-court sale, in particular, the announcement of auctions or the conversion of the pledged object into his property after the failed auction, thereby, according to the court's conclusions, the Bank did not use the right to foreclose on the pledged property out of court.

As a rule, banks mostly apply to the courts with claims for recovery of the entire remaining part of the loan object, along with the remuneration due and the penalty due due to the borrower's violation of the periodic payment schedule, having previously demanded early fulfillment of the obligation secured by collateral from the borrower. Banks refer to the fact that the fulfillment of the borrower's obligations is secured by collateral for real estate, therefore these legal relations The issues arising from collateral are regulated by the norms of the Civil Code, the Law "On Mortgage of Real Estate" and banking legislation.

According to Clause 2 of Article 299 of the Civil Code, the pledge of enterprises, buildings, structures, apartments, rights to land and other immovable property (mortgage) is regulated by the Law of the Republic of Kazakhstan "On Mortgage of Immovable Property". The general rules on collateral contained in the Civil Code apply to mortgages in cases where the Mortgage Law does not establish other rules.

The Mortgage Law does not provide grounds for foreclosure on mortgaged property, grounds for early fulfillment of obligations secured by collateral, and foreclosure on mortgaged property.

Such grounds for foreclosure on mortgaged property are provided for in paragraph 1 of Article 317 of the Civil Code, according to which foreclosure on mortgaged property may be levied to satisfy the claims of the mortgagee (creditor) in the event of non-fulfillment or improper fulfillment by the debtor of the obligation secured by the pledge for which he is responsible.

According to Article 272 of the Civil Code, an obligation must be performed properly in accordance with the terms of the obligation and the requirements of the law, and in the absence of such conditions and requirements, with business practices or other commonly imposed requirements.

According to the judicial acts studied, bank loan agreements are mainly secured by collateral. Therefore, the relations that arise between the borrower and the lender under a bank loan agreement, the fulfillment of which is secured by a pledge of property, are regulated by the provisions of art. 321 of the Civil Code, which provide for cases where the right of the pledgee to demand early fulfillment of the obligation secured by the pledge and foreclosure on the pledged property.

Article 321 of the Civil Code provides for a specific list of cases of early fulfillment of obligations secured by collateral and foreclosure on mortgaged property and cannot be considered as additional grounds for early fulfillment of obligations.

Thus, it follows from paragraph 1 of Article 321 of the Civil Code that the pledgee has the right to demand early fulfillment of the obligation secured by the pledge in the following cases::

1) if the pledged item has left the possession of the pledgor, from whom it was left, not in accordance with the terms of the pledge agreement;

2) violations by the pledgor of the rules on the replacement of the pledged object (Article 314 of this Code);

3) loss of the pledged object due to circumstances for which the pledgee is not responsible (paragraph 2 of Article 313 of this Code), if the pledgor has not exercised the right provided for in paragraph 2 of Article 314 of this Code.;

4) foreclosure on the subject of the pledge in order to fulfill the obligations of the pledgor under enforcement documents to third parties who do not have an advantage over the claim of the pledgee, in the absence of the pledgor's other property.

Paragraph 2 of the same provision of the law provides that the pledgee has the right to demand early fulfillment of the obligation secured by the pledge, and if his claim is not satisfied, to foreclose on the subject of the pledge in the case of: 1) violation by the pledgor of the rules on subsequent pledge; 2) failure by the pledgor to fulfill the obligations provided for in paragraphs 1) and 2) paragraphs 1 and 2 of art. 312 of this Code; 3) violation by the pledgor of the rules on the disposal of pledged property (paragraph 2 of art. 315 of this Code).

For example: According to the Bank's claim for debt collection from B. and foreclosure on the mortgaged property by the decision of the Petropavlovsk court No. 2, left unchanged by the decisions of the appellate and cassation boards of the North Kazakhstan Regional Court, debts of 12,417. 34 US dollars and 706 549 tenge were recovered from the defendant in favor of the Bank, foreclosure was levied on the collateral The property is a three-room apartment of the defendant, through sale through public auctions.

By a decision of the Supervisory Judicial Board for Civil and Administrative Cases of the Supreme Court of the Republic of Kazakhstan, the judicial acts that took place in the case were canceled and the case was sent for a new hearing on the grounds of the bank's failure to provide evidence of the existence of any circumstances provided for in art. 321 of the Civil Code, which are the basis for foreclosure on mortgaged property.

When deciding on the early recovery of the amount of the loan received with remuneration from the borrower, as well as foreclosing on the mortgaged property, the court did not check the existence of circumstances for requiring early repayment of the loan specified in the contracts and the law. (source– judicial practice).

According to subitem 3), clause 3 of Article 24 of the Law of the Republic of Kazakhstan "On Mortgage of Immovable Property", the satisfaction of the mortgagee's claims out of court is not allowed in cases where the subject of the mortgage is immovable property in common ownership, and one of its owners does not give written consent to the satisfaction of the mortgagee's claims out of court. In these cases, foreclosure on mortgaged property is applied only by court decision.

According to the court's conclusions, the plaintiff's application to the bank to invalidate a previously submitted application for consent to the sale of an apartment out ofcourt indicates the disagreement of the owner of the share in the apartment with the out-of-court sale. Consequently, foreclosure on the mortgaged property should have been applied only by court decision.

According to Clause 2 of Article 216 of the Civil Code, when selling a share in the right of shared ownership to an outsider, the remaining participants in the shared ownership have the pre-emptive right to purchase the share being sold at the price for which it is sold, and on other equal terms, except in the case of sale at public auction. However, the bank has not provided evidence that the plaintiff was notified of the right of first refusal and the auction, which violates her rights as the owner of the share of the apartment.

Disputes about early fulfillment of obligations secured by collateral are resolved in different ways when a debt collection claim is recognized as a defendant.

According to Part 1 of Article 49 of the CPC, the defendant has the right to admit the claim, and a receipt is taken from him. However, in accordance with Part 2 of Article 49 of the CPC, the court does not accept the recognition of a claim by the defendant if these actions contradict the law or violate someone's rights, freedoms and legitimate interests. If the defendant recognizes the claim and the court accepts it, a decision is made to satisfy the stated claims. If the court does not accept the recognition of the claim, the court issues a ruling on this and continues to consider the case on its merits.

There are facts when the arrears in the payment of penalties (penalties) for violation by the borrower of obligations to repay the principal debt (loan amount), to pay remuneration for the use of the loan were accumulated by the bank for two or more years

Prolonged failure of the bank to go to court and failure to take the necessary measures to resolve the situation entail a significant artificial increase in the amount of the penalty (penalty fee), which significantly exceeds the amount of the principal debt and interest on the loan.

The courts generally correctly resolve the issue of collecting penalties, while taking into account the provisions of art. 364 of the Civil Code, according to paragraph 1 of which, if non-fulfillment or improper fulfillment of obligations occurred due to the fault of both parties, the court accordingly reduces the amount of liability of the debtor.

The court also reduces the amount of the debtor's liability if the creditor intentionally or negligently contributed to an increase in the amount of losses caused by non-performance or improper performance, or did not take reasonable measures to reduce them.

These norms are applied accordingly in cases when the debtor, by virtue of a legislative act or contract, is responsible for non-fulfillment or improper fulfillment of an obligation, regardless of his fault (paragraph 2 of Article 364 of the Civil Code). The circumstances cited by the participants in the process in support of their arguments should be thoroughly investigated in court proceedings.

At the same time, the arguments of the parties are subject to evaluation taking into account the provisions contained in the Rules on Internal Credit Policy approved by the bank's management body, which are developed in order to reduce the risk of bank borrowing operations and determine the conditions for bank borrowing operations, including the provision of loans to legal entities and individuals, their support, monitoring, etc. (34 of the Law of the Republic of Kazakhstan "On Banks and banking activities in the Republic of Kazakhstan").

If it is established that the penalty to be paid (fine, fine) is excessively large in comparison with the creditor's losses, the court has the right to reduce the penalty, taking into account the degree of fulfillment of the obligation by the debtor and the interests of the debtor and the creditor that deserve attention (art. 297 of the Civil Code).

According to paragraph 3 of Article 39 of the Law of the Republic of Kazakhstan "On Banks and Banking Activities in the Republic of Kazakhstan", banks and organizations engaged in certain types of banking operations are required in bank loan agreements to indicate the full list of commissions and their amounts to be charged in connection with the issuance of a loan, and are not entitled to unilaterally introduce new types of commissions in within the framework of the concluded agreement

The loan agreement concluded between the parties should reflect and record the list of fees and their amounts to be charged in connection with the issuance of the loan. However, in violation of the law, the bank in some contracts did not specify the commission when providing a bank loan, indicating only that it was charged in accordance with the bank's tariffs. Thus, he concealed its size, thereby violating the borrower's right to know the amount of the commission paid to the bank, and this violation is significant.

According to paragraph 1 of Article 39 of the Law "On Banks and Banking Activities", remuneration and commission rates, as well as tariffs for the provision of banking services, are set by banks and organizations engaged in certain types of banking operations independently, subject to restrictions established by the laws of the Republic of Kazakhstan.

Subparagraph 1) Paragraph 1 of the Rules for the Provision of Banking Services and Consideration by Banks of Customer requests Arising in the process of Providing Banking services, approved by Resolution No. 19 (Rules) of the Board of the Agency of the Republic of Kazakhstan for Regulation and Supervision of the Financial Market and Financial Organizations dated 28.02.2011, banking services are the implementation by banks, organizations engaged in certain types of banking operations, banking and other transactions established by art. 30 of the Law of the Republic of Kazakhstan "On Banks and banking activities".

In accordance with Article 30 of the Law of the Republic of Kazakhstan "On Banks and Banking Activities", banking operations include, among other things, operations for opening and maintaining bank accounts of legal entities and individuals.

According to Article 6 of the Law of the Republic of Kazakhstan "On Payments and Money Transfers", a bank account is a way of reflecting contractual relations between a bank and a client for accepting money and (or) banking services to a client; bank accounts are divided into current and savings accounts of individuals and legal entities, as well as correspondent accounts of banks.

The letter of the National Bank of the Republic of Kazakhstan dated 02/09/2012 No. 667/206/740, addressed to second-tier banks and organizations engaged in certain types of banking operations, states that the bank's actions to charge borrowers a commission for maintaining a loan account are regarded as illegal and subject to immediate termination.

This information letter is not an official interpretation of the legislative acts of the Republic of Kazakhstan, however, what is stated in it is consistent with the norms of legislation.

Therefore, based on the provisions of the legislation on banks and banking activities, on payments and money transfers, Rules and other legislative acts regulating issues related to banking operations and the provision of banking services, bank accounts, opening and maintaining a loan account are the responsibility of a second-tier bank not to the borrower, but to the National Bank of the Republic of Kazakhstan, intended to For the purposes of reflecting the borrower's debt on loans issued, it is a method of accounting for cash and does not relate to settlement transactions.

Thus, a loan account is not a bank account, and opening and maintaining such an account cannot be considered as a separate banking service.

According to Article 20 of the Law of the Republic of Kazakhstan "On Mortgage of immovable Property", in case of default by the debtor of the main obligation, the mortgagee has the right to satisfy his claims by: selling the mortgage in court; selling the mortgage out of court, if this is provided for by legislative acts or in the mortgage agreement, or a subsequent agreement of the parties; taking ownership of the mortgaged property in case of declaration the auction failed in accordance with art. 32 of this Law

In accordance with Clause 2 of Article 318 of the Civil Code, in cases stipulated by the pledge agreement, as well as this Code and other legislative acts, the pledgee has the right to independently sell the pledged property in a compulsory out-of-court manner by bidding. The pledgee bank has the same right to sell the collateral securing the money loan.

Thus, it follows from the above rule that the mortgagee bank has the right to out-of-court sale (but only through bidding) of the collateral securing the money loan. At the same time, the right of the pledgee bank does not mean its obligation to sell the collateral securing the monetary loan only out of court.

In accordance with paragraph 4 of Article 21 of the Law of the Republic of Kazakhstan "On Mortgage of Immovable Property", if there are valid reasons, it is provided that citizens, when they receive housing or consumer loans that are not related to entrepreneurial activity, postpone the sale of the mortgage.

In most cases, the courts, when satisfying banks' claims for foreclosure on mortgaged real estate, grant, at the request of the mortgagor, a delay in the sale of real estate, most often this property is housing, taking into account that the mortgaged property is the only housing of the defendant and his family members, the financial and property status of the defendant.

In accordance with Article 271 of the Civil Code, obligations arise from a contract, injury, or other grounds specified in Article 7 of the Civil Code. On the basis of clause 1 of Article 269 of the Civil Code, several persons may simultaneously participate in an obligation as each of its parties - a creditor or a debtor.

In these cases, there is a shared, joint or subsidiary obligation in accordance with the rules established by the Civil Code (Articles 286-288).

According to Article 727 of the Civil Code, obligations to transfer and refund money with payment of remuneration for the use of a loan arise between the lender on the one hand and the borrower on the other hand by virtue of a bank loan agreement concluded between them.

Thus, having received money on a bank loan, the borrower becomes the debtor of the bank, and the bank becomes the creditor. The borrower is obliged to fulfill the obligation to return this money to the bank together with the amount of remuneration in accordance with the terms of the bank loan agreement.

At the same time, by pledging its property to ensure the fulfillment of the borrower's obligations to the bank under a bank loan agreement, the pledgor, a third party (real surety), is not and does not become a party to the bank loan agreement. That is, he does not acquire the rights and obligations of either the creditor or the debtor, including repayment of the loan, payment of remuneration for its use and payment of penalties for violating the terms of the bank loan agreement, etc.

Taking into account this circumstance, it can be concluded that the third-party mortgagor does not incur any equity, solidarity, or subsidiary obligations to the bank together with the borrower, as provided for in paragraph 2 of Article 269 of the Civil Code, and therefore the corresponding liability. With his property, he ensures, on his own responsibility and at his own risk, the fulfillment of the borrower's obligations to the bank under the bank loan agreement (Articles 292, 299 of the Civil Code), and within the framework of the pledge agreement concluded between him, the bank and the borrower, acquires the rights and obligations of the pledgor.

It is within the framework of this pledge agreement that the pledgee bank has the right, in case the debtor (borrower) fails to fulfill the obligation secured by the pledge, to obtain satisfaction from the value of the property pledged by the pledgor (real surety) primarily before other creditors of the person to whom this property belongs (the pledgor), with the exception established by law.

At the same time, unlike the guarantor, who, together with the debtor, is jointly and severally liable to the creditor, and also unlike the guarantor, who is vicariously liable to the creditor (art. 332 of the Civil Code), the pledgor is not jointly or severally liable to the creditor.

If the rights of the creditor under this obligation are transferred to the guarantor and the surety when they fulfill their obligations to the creditor of the debtor-borrower (art. 334 of the Civil Code), then the transfer of such rights to the pledgor is not provided for by the current legislation. Thus, the pledgor, a third party whose property has been sold by the creditor bank in accordance with the procedure provided for by law, does not acquire the right to demand compensation from the borrower for the value of the sold collateral, unless the parties to the pledge agreement provide for this right in the pledge agreement itself.

Banks and organizations that carry out certain types of banking operations, providing loans for 10 years or longer (and mainly for the purchase of housing), after almost a short time, require the borrower to fulfill their obligations to repay the loan ahead of schedule

In case of non-fulfillment of this condition, Banks and organizations engaged in certain types of banking operations apply to the court with a claim for compulsory debt collection and foreclosure on mortgaged property. At the same time, the issue remains ignored that neither a pledge, nor a guarantee, nor a guarantee, nor other methods of securing are the main security for repayment of the loan.

In accordance with the Rules on the bank's Internal Credit Policy, approved by the bank's authorized management body, the main guarantee for loan repayment is the stable solvency (creditworthiness) of the borrower. That is, the level of the financial and economic condition of the bank's client, his legal status, on the basis of which the bank's loan specialist draws conclusions about the borrower's financial stability, the possibility of effective use of borrowed funds and his ability to repay funds in accordance with the terms of the loan agreement.

Regulatory legal acts on the generalized category

The main regulatory legal acts regulating relations in disputes related to the conclusion, amendment, termination of an agreement and the fulfillment of contractual obligations under a banking agreement, including mortgages of real estate and foreclosure on property, are

The Constitution of the Republic of Kazakhstan,

Civil and Civil Procedure Codes (CC, CPC),

Laws of the Republic of Kazakhstan "On mortgage of real estate",

"About banks and banking activities in the Republic of Kazakhstan",

"On the state registration of rights to immovable property",

"On evaluation activities in the Republic of Kazakhstan" and others.

Attention!

      The Law and Law Law Firm draws your attention to the fact that this document is basic and does not always meet the requirements of a specific situation. Our lawyers are ready to assist you in drafting any legal document that suits your situation.

     For more information, please contact a Lawyer/Lawyer by phone; +7 (708) 971-78-58; +7 (700) 978 5755, +7 (700) 978 5085.

 Constitution Law Code Standard Decree Order Decision Resolution Lawyer Almaty Lawyer Legal service Legal advice Civil Criminal Administrative cases Disputes Defense Arbitration Law Company Kazakhstan Law Firm Court Cases