Disputes on the fulfillment of contractual obligations under the loan agreement
In accordance with paragraph 26 of the Normative Resolution of the Supreme Court of the Republic of Kazakhstan dated July 11, 2003 No. 5 "On judicial decision", when leaving an application without consideration by virtue of paragraph 1 of Article 249 of the CPC RK, the court is obliged to indicate in the definition how to eliminate the circumstances preventing the case from being considered in court.
For example, (Case No. 2-7/2014), by the Ruling of the Sandyktau District Court of the Akmola region dated 28.01.2014, the statement of claim of the Akmola branch of the Fund for Financial Support of Agriculture JSC against Umarova S.Y. for debt collection under the loan agreement was left without consideration.
By virtue of the clause.9) art.249 of the CPC, the court leaves the application without consideration if an application for the return of the statement of claim is filed, and the defendant does not require a hearing on the merits. The ruling is motivated by the fact that the plaintiff asked for debt collection under the loan agreement, however, during the consideration of the case, an application was received from the plaintiff's representative, G.Z. Ospanova, for the return of the statement of claim in connection with the repayment of the debt by the defendant, and the defendant does not require a hearing on the merits.
When accepting the statement of claim, the judge had to check whether the person concerned had the right to apply to the court for judicial protection and whether it was carried out in a certain procedural manner. According to the law, one of the conditions for the right to file a claim, i.e. the right to initiate proceedings, is that the plaintiff complies with the procedure for preliminary pre-trial dispute resolution established by law for this category of cases and the possibility of applying this procedure has not been lost.
Application of the limitation period
The limitation period is the statutory period during which a person is given the opportunity to forcibly satisfy his claim for the protection of a violated right.
The expiration of the limitation period is not a reason for the refusal to consider the case by the court.
The right to a claim arises from the day when a person learned or should have learned about the violation of his subjective civil law.
From this time, the limitation period begins. Hence, it is important to determine which violation of the owner's rights is associated with the beginning of the limitation period.
The limitation period is the period for the protection of the right under the claim of a person whose right has been violated. The total limitation period is set at three years.
By the decision of the Appellate Judicial Board for Civil and Administrative cases of the Almaty Regional Court dated 06/10/2014, the decision of the Taldykorgan City Court dated 04/11/2014. The claim of MKO Zhetysu Invest LLP on the claim of MKO Zhetysu Invest LLP against Buenbaev T.M. on debt collection on the loan remained unchanged.
The claim is motivated by the fact that a loan was concluded between the parties, under which the defendant received a microcredit under Contract No. 12-MKO dated 02/05/2010 in the amount of 30,000 tenge, for a period of 6 months.
According to the annex to the Agreement, according to the repayment schedule, the borrower was required to repay the remuneration on a monthly basis, but they violated the terms of the agreement. The borrower was repeatedly verbally warned about the overdue debt. Since receiving the loan, the terms of the agreement have not been properly fulfilled, and therefore the plaintiff requests that the defendant collect the total debt in the amount of 48,000 tenge as of 02/01/2014, of which the principal debt is 30,000 tenge, remuneration is 18,000 tenge and the refund of the state duty is 1,440 tenge.
By the decision of the Taldykorgan City Court of 04/11/2014, the claim of MKO Zhetysu Invest LLP was dismissed.
The court found that according to the micro-loan agreement No. 12-MKO dated 05.02.2010, T.M. Buenbaev was granted a loan in the amount of 30,000 tenge, at 120% per annum for a period of six months, until 05.08.2010, with monthly remuneration of 3,000 tenge.
The court of first instance, on the basis of Articles 177, 178, paragraph 2, 179 of the Civil Code of the Republic of Kazakhstan, correctly stated that the claim was filed after three years from the end of the period of performance of obligations, from 05.08.2010.
The Board did not take into account the arguments of the complaint that, according to paragraph 2 of Article 10 of the Law of the Republic of Kazakhstan "On Microfinance Organizations", the claims and limitation periods do not apply to the requirements of microfinance organizations to borrowers for the proper execution of microcredit agreements, since this law was adopted on December 26, 2012 and at the time of the emergence of legal relations, the Law "On Microcredit organizations" from 2003.
In this connection, the board concluded that the court of first instance had reasonably applied the limitation period to the plaintiff's claims.
Invalidity of the pledge agreement
In accordance with Parts 1,3 of art.307 of the Civil Code, the pledge agreement must specify the subject of the pledge and its assessment, the nature, size and duration of the obligation secured by the pledge. It should also contain an indication of which of the parties has the mortgaged property and the permissibility of its use. The valuation of the collateral is expressed in tenge and may be determined by agreement of the parties, unless otherwise established by the laws of the Republic of Kazakhstan. The valuation of the collateral securing the obligation in a foreign currency is expressed in tenge and the currency of the obligation at the market exchange rate at the date of the conclusion of the pledge agreement. Failure to comply with the rules contained in paragraphs 1 and 2 of this article shall invalidate the pledge agreement.
As follows from the content of the agreement on the pledge of real estate (mortgage) No. 268 dated 07/23/2004, the agreement was concluded as fulfillment of obligations under the loan agreement No. 234 dated 07/06/2004 in the amount of 300,000 tenge, however, the loan agreement was not concluded, the loan amount was not issued.
According to Part 1 of Article 157 of the Civil Code, if the requirements for the form, content and participants of the transaction, as well as for the freedom of their will, are violated, the transaction may be declared invalid at the request of interested parties, a proper government agency or a prosecutor.
Thus, it is clear from the content of the pledge agreement that its content does not comply with the norms of the law, that is, this pledge agreement was not actually a security for the fulfillment of obligations under any loan agreements under which the loan was issued. In this regard, the court invalidated the pledge agreement and its registration.
However, the court dismissed the requirement to invalidate loan agreements No. 48 dated 05.05.2006 and 28.07.2006, since the requirement to invalidate agreements is not provided for by law, moreover, the loan agreement is valid until the obligations under them are fully fulfilled.
At the same time, the defendant LLP "Microcredit Organization "Martobe" filed counterclaims to recover the amount owed.
In substantiation of the LLP's counterclaims, it is stated that under the loan agreement No. 183 dated 09/01/2005, Martobe Micro-Credit Organization LLP issued a loan in the amount of 250,000 tenge at 60% per annum to the defendant Taskhodzhaev, the principal debt was repaid in the amount of 205,000 tenge, while the principal debt as of 05/01/2014 is 45,000 tenge, the amount of remuneration is 195,000 tenge, a total of 240,000 tenge.
Under the loan agreement No. 183 dated 04/01/2006, the defendant was granted a loan in the amount of 120,000 tenge. The accrued remuneration from 04/01/2006 to 05/01/2014 is 582,000 tenge, of which the plaintiff repaid 60,800 tenge until 02/05/2007 and there is overdue remuneration in the amount of 521,200 tenge, the principal debt is 120,000 tenge, a total of 641,200 tenge.
Under loan agreement No. 48 dated 05.05.2006, the defendant was granted a loan in the amount of 260,000 tenge, the loan was not repaid, the accrued remuneration from 05.05.2006 to 01.05.2014 is 1,261,000 tenge, of which the plaintiff repaid 131,733 tenge until 05.02.2007 and there is overdue remuneration in the amount of 1,129,267 tenge, the principal debt is 260,000 tenge, a total of 1,389,267 tenge.
Under loan agreement No. 48 dated 07/28/2006, a loan in the amount of 300,000 tenge was issued, the loan was not repaid at all, accrued remuneration from 07/28/2006 to 05/01/2014 is 1,396,500 tenge, of which 93,500 tenge was repaid before 02/05/2007 and there is overdue remuneration in the amount of 1,303,000 tenge, the principal debt is 300,000 tenge, a total of 1,603,000 tenge.
The balance of the principal debt of Taskhodzhaev U.T. under all loan agreements dated 09/01/2005, 04/01/2006, 05/05/2006 and 07/28/2006 is 725,000 tenge, the actual accrued remuneration is 3,148,917 tenge, the fine for delay of 10 percent is 387,391 tenge, a total of 4,261,308 tenge.
In accordance with Article 715 of the Civil Code of the Russian Federation, under a loan agreement, one party (the lender) transfers, and in cases provided for by this Code or the agreement, undertakes to transfer ownership (economic management, operational management) to the other party (the borrower) money or things defined by generic characteristics, and the borrower undertakes to return the same amount of money to the lender in a timely manner. or an equal number of items of the same kind and quality.
During the consideration of the case, the representative of the defendant, S. Yusupova, announced the application of the statute of limitations, since the loans were issued for a period of six months to one year, respectively, the statute of limitations has already expired.
In accordance with Part 1 of Article 178 of the Civil Code of the Republic of Kazakhstan, the general limitation period is set at three years.
By virtue of Part 3 of Article 179 of the Civil Code of the Republic of Kazakhstan, the expiration of the limitation period for filing a claim is the basis for a court decision to dismiss the claim.
As can be seen from clause 2.4 of Loan Agreements No. 183 dated 09/01/2005, No. 48 dated 05.05.2006, No. 48 dated 07/28/2006, the term of use of the loan is 6 months, and under the agreement dated 04/01/2006 – one year.
Under such circumstances, the court came to the correct conclusion that the plaintiff in the counterclaim of LLP "Microcredit Organization "Martobe" missed the deadline for filing a claim and left them without satisfaction, due to the expiration of the statute of limitations.
The requirement to collect the amount of debt under the loan agreement
According to Article 715 of the Civil Code of the Republic of Kazakhstan, under a loan agreement, one party (the lender) transfers, and in cases provided for by this Code or the agreement, undertakes to transfer ownership (economic management, operational management) to the other party (the borrower) money or things defined by generic characteristics, and the borrower undertakes to return the same amount of money to the lender in a timely manner. or an equal number of items of the same kind and quality.
In accordance with art.272 of the Civil Code of the Republic of Kazakhstan, the 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 - in accordance with business practices or other commonly imposed requirements.
Collection of remuneration arrears in the presence of a judicial act that has taken place
MKO Arnur Credit LLP filed a lawsuit against G.F. Karsht to recover the amount of remuneration arrears and penalties for non-payment of remuneration in the amount of 58,705 tenge.
By the decision of the Abai District Court of Shymkent dated 20.03.2014, the claim of MKO Arnur Credit LLP was satisfied.
The appeals board did not agree with the conclusions of the court of first instance, since earlier by a court decision dated 06/13/2013, a debt in the amount of 282,402 tenge was recovered from G.F. Karsht in favor of MKO Arnur Credit LLP, including the principal debt - 253,810 tenge, remuneration – 15,617 tenge, penalty for remuneration - 1,725 tenge, the penalty for the principal debt is 11,250 tenge, which was voluntarily fulfilled by the defendant.
However, after the court decision enters into force, the collection of remuneration arrears and penalties for non-payment of remuneration ceases.
According to clause 1 of Article 718 of the Civil Code, for the use of the loan object, the borrower pays remuneration to the lender in the amounts determined by the contract.
In this case, the contract provided for the return of the loan item in parts with the payment of remuneration, which the defendant executed by court order. Based on this, after the court's decision, the accrual of remuneration and penalties under the microcredit agreement is terminated.
Thus, the plaintiff's claims for the recovery of interest and penalties for the period after the court's decision of 06/13. 2013 are unfounded. The decision of the court of first instance was overturned by the appellate judicial board.
The appeal decision of the Judicial Board for Civil and Administrative cases of the South Kazakhstan Regional Court dated July 29, 2014 denied satisfaction of the claims of MKO Arnur Credit LLP.
Collection of penalties for non-fulfillment or improper fulfillment of obligations
293 of the Civil Code of the Republic of Kazakhstan, a penalty (fine, fine) is a monetary amount determined by law or contract that the debtor is obliged to pay to the creditor in case of non-fulfillment or improper fulfillment of obligations, in particular in case of late fulfillment. Upon request for payment of a penalty, the creditor is not obliged to prove the damage caused to him.
A penalty is one of the most common ways to secure obligations. Its main purpose is to relieve the creditor of the need to prove the amount of damages to be reimbursed. This, among other things, opens up the possibility of compensating the creditor's interest violated by non-fulfillment or improper fulfillment of an obligation in cases where a monetary assessment of such an interest is impossible, or at least difficult. This is due to the fact that the meaning of the penalty is to establish a certain amount of money, which is payable regardless of the amount of damages caused and even their presence, in case of non-fulfillment or improper fulfillment of obligations, including in cases of delay.
The penalty, along with the common features inherent in other types of enforcement, has differences. First of all, the penalty performs not only a compensating function, but also a stimulating one.
The main purpose of the penalty is not only to compensate for losses. A penalty is a measure of compulsory economic impact on a debtor for violating an obligation.
Claims related to the recovery of penalties for non-fulfillment or improper fulfillment of contractual obligations
359 of the Civil Code of the Republic of Kazakhstan, it is necessary to have conditions for holding the debtor liable for breach of an obligation, i.e. the debtor is responsible for non-fulfillment and (or) improper fulfillment of an obligation in the presence of guilt, unless otherwise provided by law or contract. The debtor is found innocent if he proves that he has taken all measures in his power to properly fulfill the obligation.
The exception to this rule is Article 359 of the Civil Code of the Russian Federation, which refers to liability arising from entrepreneurial activity. A person who has failed to fulfill or improperly fulfilled an obligation in carrying out business activities is liable for property liability unless he proves that proper fulfillment was impossible due to force majeure, that is, circumstances that were extraordinary and unavoidable under the given conditions (natural disasters, military actions, etc.). Such circumstances do not include, in particular, the lack of goods, works or services necessary for the execution on the market. Legislation or a contract may provide for other grounds for liability or exemption from it. An agreement concluded in advance to eliminate or limit liability for an intentional violation of an obligation is invalid.
The court's right to reduce the amount of the penalty
It should be noted that the judge evaluates evidence according to his inner conviction in accordance with art.16 of the CPC RK.
However, the court must assess the circumstances of the case in conjunction with other evidence collected in the case.
When considering the issue of reducing the amount of the penalty, the court must first determine to what extent the amount of the penalty presented for collection and payable is greater than the losses caused to the creditor by non-fulfillment or improper fulfillment of obligations by the debtor.
During the trial, it is necessary to take into account the fact that the norms of Article 293 of the Civil Code of the Republic of Kazakhstan establish the creditor's right not to prove the losses caused to him upon a claim for payment of a penalty. However, the norms of Article 297 of the Civil Code of the Republic of Kazakhstan, which establish the court's right to reduce the amount of the penalty, at the same time determine the court's obligation to establish the existence of losses of the creditor in order to correlate them with the amount of the penalty presented by the creditor.
Only after the court determines that the penalty to be paid is excessively large in comparison with the creditor's losses, it must find out the extent to which the debtor has fulfilled the obligation and the interests of the debtor and the creditor that deserve attention.
The decision to reduce the amount of the penalty may be taken by the court, taking into account the degree of fulfillment of obligations by the debtor and the interests of the debtor and the creditor.
In accordance with art.298 of the Civil Code of the Republic of Kazakhstan, a penalty is levied for non-fulfillment or improper fulfillment of an obligation if there are conditions for holding the debtor accountable for violating the obligation.
If the court finds that the creditor took measures to fulfill the debtor's obligations (for example, restructured the debt, negotiated with the debtor to find sources to repay the debt, etc.), and the debtor was passive, then the creditor has the right to receive a penalty in full, since a penalty is primarily a security that gives the creditor confidence that after all actions, he will apply sanctions to the debtor and receive full compensation through a penalty.
If the creditor does not take any measures and tries to enrich himself, then the court, having established these circumstances, has the right to decide on the reduction of the penalty.
The Law of the Republic of Kazakhstan "On Amendments and additions to certain Legislative acts of the Republic of Kazakhstan on mortgage lending and protection of the rights of consumers of financial services and investors" dated February 15, 2011 clearly regulates the issue of the amount of the penalty.
So, in particular, article 35 of the Law on Banks and Banking Activities was amended, where paragraph 2 established that the amount of the penalty (fine, penalty) for violating the obligation to repay the loan amount and (or) pay remuneration under a bank loan agreement concluded with an individual, including a mortgage loan agreement, may not exceed 0.5 percent of the overdue payment amount for each day of delay, but not more than 10% of the loan amount for each year of the bank loan agreement.
This provision of the law also applies to previously concluded contracts. This law stipulates that Banks and micro-credit organizations were required to bring bank loan agreements in accordance with the law within 6 months.
Article 34, paragraph 3 of the Law "On Banks and Banking Activities" banks, organizations engaged in certain types of banking organizations, have the right to unilaterally change the terms of the agreement in the direction of their improvement for the borrower.
Applying to the court for protection of a violated right is the creditor's procedural right and not seeking judicial protection cannot be attributed to the creditor. According to paragraph 1 of Article 8 of the Civil Code, citizens and legal entities, at their discretion, dispose of their rights, including the right to their protection. In addition, a study of the cases showed that, as a rule, creditors do not consider themselves inactive, referring to the fact that they took measures to settle the dispute out of court in order to avoid accrual of penalties and reimbursement of court costs. Only after a long period of non-fulfillment by the debtor of contractual obligations, creditors are forced to go to court.
In accordance with the requirements of Article 16 of the CPC, the court must assess these circumstances in conjunction with other evidence collected in the case.
However, the court must assess the circumstances of the case in conjunction with other evidence collected in the case.
When considering the issue of reducing the amount of the penalty, the court must first determine to what extent the amount of the penalty presented for collection and payable is greater than the losses caused to the creditor by non-fulfillment or improper fulfillment of obligations by the debtor.
During the trial, it is necessary to take into account the fact that the norms of Article 293 of the Civil Code of the Republic of Kazakhstan establish the creditor's right not to prove the losses caused to him upon a claim for payment of a penalty. However, the norms of Article 297 of the Civil Code of the Republic of Kazakhstan, which establish the court's right to reduce the amount of the penalty, at the same time determine the court's obligation to establish the existence of losses of the creditor in order to correlate them with the amount of the penalty presented by the creditor.
Only after the court determines that the penalty to be paid is excessively large in comparison with the creditor's losses, it must find out the extent to which the debtor has fulfilled the obligation and the interests of the debtor and the creditor that deserve attention.
The decision to reduce the amount of the penalty may be taken by the court, taking into account the degree of fulfillment of obligations by the debtor and the interests of the debtor and the creditor.
In accordance with art.298 of the Civil Code of the Republic of Kazakhstan, a penalty is levied for non-fulfillment or improper fulfillment of an obligation if there are conditions for holding the debtor accountable for violating the obligation.
If the court finds that the creditor took measures to fulfill the debtor's obligations (for example, restructured the debt, negotiated with the debtor to find sources to repay the debt, etc.), and the debtor was passive, then the creditor has the right to receive a penalty in full, since a penalty is primarily a security that gives the creditor confidence that after all actions, he will apply sanctions to the debtor and receive full compensation through a penalty.
If the creditor does not take any measures and tries to enrich himself, then the court, having established these circumstances, has the right to decide on the reduction of the penalty.
The Law of the Republic of Kazakhstan "On Amendments and additions to certain Legislative acts of the Republic of Kazakhstan on mortgage lending and protection of the rights of consumers of financial services and investors" dated February 15, 2011 clearly regulates the issue of the amount of the penalty.
So, in particular, article 35 of the Law on Banks and Banking Activities was amended, where paragraph 2 established that the amount of the penalty (fine, penalty) for violating the obligation to repay the loan amount and (or) pay remuneration under a bank loan agreement concluded with an individual, including a mortgage loan agreement, may not exceed 0.5 percent of the overdue payment amount for each day of delay, but not more than 10% of the loan amount for each year of the bank loan agreement.
This provision of the law also applies to previously concluded contracts. This law stipulates that Banks and micro-credit organizations were required to bring bank loan agreements in accordance with the law within 6 months.
Article 34, paragraph 3 of the Law "On Banks and Banking Activities" banks, organizations engaged in certain types of banking organizations, have the right to unilaterally change the terms of the agreement in the direction of their improvement for the borrower.
Applying to the court for protection of a violated right is the creditor's procedural right and not seeking judicial protection cannot be attributed to the creditor. According to paragraph 1 of Article 8 of the Civil Code, citizens and legal entities, at their discretion, dispose of their rights, including the right to their protection. In addition, a study of the cases showed that, as a rule, creditors do not consider themselves inactive, referring to the fact that they took measures to settle the dispute out of court in order to avoid accrual of penalties and reimbursement of court costs. Only after a long period of non-fulfillment by the debtor of contractual obligations, creditors are forced to go to court.
In accordance with the requirements of Article 16 of the CPC, the court must assess these circumstances in conjunction with other evidence collected in the case.
If the court finds that the creditor took measures to fulfill the debtor's obligations (for example, restructured the debt, negotiated with the debtor to find sources to repay the debt, etc.), and the debtor was passive, then the creditor has the right to receive a penalty in full, since a penalty is primarily a security that gives the creditor confidence that after all actions, he will apply sanctions to the debtor and receive full compensation through a penalty. If he does not take any measures and tries to enrich himself, then the court, having established these circumstances, has the right to decide on the reduction of the penalty.
Dispute cases related to the conclusion, amendment, termination of an agreement (transaction) and fulfillment of contractual obligations under a loan agreement relate to the scope of mediation in accordance with paragraph 1 of Article 1 of the Law of the Republic of Kazakhstan dated January 28, 2011 No. 401-IV "On Mediation".
Regulatory framework
The norms of substantive law, which were guided by the courts in resolving disputes of the generalized category, include the legislative acts currently in force.:
- The Civil Code of the Republic of Kazakhstan;
- The Civil Procedure Code of the Republic of Kazakhstan,
- The Law of the Republic of Kazakhstan "On mortgage of real estate"; - The Law of the Republic of Kazakhstan "On Banks and Banking Activities";
- Regulatory Resolution of the Supreme Court No. 9 dated December 25, 2006 "On the application by courts of the Republic of Kazakhstan of legislation on court costs in civil cases";
- Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated July 11, 2003 No. 5 "On judicial decision". - The Law of the Republic of Kazakhstan dated November 26, 2012 No. 56-V "On Microfinance organizations";
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