Division of debt obligations under bank loan agreements

The Zhitikarinsky district court of the Kostanay region, consisting of: the presiding judge A.A.K., with the secretary of the court session M.M.Zh., considered in open court the civil case on the claim: IAN to the HMB on the division of debt obligations under bank loan agreements. The plaintiff and the defendant have been married since July 23, 2011. On August 12, 2019, by the decision of the Zhitikarinsky District Court, the marriage between the parties was dissolved. On August 9, 2017, between Kaspi Bank Joint Stock Company and I.A.N. A bank loan agreement No. R4463966-002 was concluded, under the terms of which the latter was granted a loan in the amount of 310,000 tenge under a credit line for consumer purposes, with a maximum term of 20 years. On February 16, 2018, a loan in the amount of 1,000,000 tenge was received under the credit line. On October 20, 2020, Halyk Bank of Kazakhstan Joint Stock Company and I.A.N. signed an agreement on the provision of credit line No. 100122871741/B, under the terms of which the latter was granted a loan, including for the purpose of refinancing other consumer loans. She appealed to the court with a claim for the distribution of the total debt under the bank loan agreement, arguing that during the marriage she had issued a loan in the amount of 310,000 tenge and 1,000,000 tenge. The money was spent on the needs of the family during the marriage. The respondent provided a review, the arguments of the review are identical to the explanations given. At the hearing, the plaintiff and her representative supported the claims, the court was told that while married, loans were received in the plaintiff's name on August 9, 2017 and February 16, 2018, which were spent on the needs of the family. Starting in October 2018, she repaid the loans on her own. To reduce the interest in Kaspi Bank JSC, she refinanced a loan from Halyk Bank in October 2020. It is believed that from October 2018 to October 21, 2020, 1912,450 tenge was independently paid to Kaspi Bank JSC, of which 629933 tenge were refinanced.

 

From October 2020 to November 29, 2021, she repaid the amount borrowed for refinancing, taking into account the early repayment of 807123 tenge. A total of 20,89640 tenge, in connection with which they are asking to collect 1044820 tenge and court costs. The defendant does not agree with the claim, he explained to the court that the plaintiff received the loans without his consent and spent them on her own needs. I got a loan from the national bank when I wasn't married. He asks to dismiss the claim. In accordance with paragraph 1 of Article 37 of the Marriage (Matrimony) and Family Code (hereinafter referred to as the Code), the division of the spouses' common property may be carried out both during the marriage and after its dissolution at the request of either spouse, as well as in the case of a creditor's claim for the division of the spouses' common property. to foreclose on the share of one of the spouses in the common property of the spouses. According to article 38 of the Code, when dividing the common property of spouses and determining the shares in this property, the shares of each spouse are recognized as equal, unless otherwise provided by an agreement between them. The common debts of the spouses in the division of the common property of the spouses are distributed among them in proportion to the shares awarded to them. According to paragraph 19 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated April 28, 2000 No. 5 "On the application of legislation by courts when considering cases of divorce", a bank deposit in the name of one of the spouses is divided according to the rules of Article 37 of the Code. By virtue of paragraph 2 of Article 33 of the Code, the plaintiff has the right to raise the issue of dividing the amount of total income at the expense of which his personal obligation to the bank for the loan was fulfilled. Common debts are obligations that arose on the initiative of the spouses in the interests of the family, or the obligations of one of the spouses, according to which everything received by him was used for the needs of the family. The plaintiff indicates that the marital relationship has been terminated since October 2018, the defendant since February 2019. Since the court indicated in the decision on the dissolution of the marriage that the marital relations between the spouses had been terminated since the winter of 2019, after the contradictions were eliminated, the court session established the actual termination of family relations and the management of the common household on January 1, 2019. This is also confirmed by the audio recording of the court hearing on the dissolution of the marriage. The case materials established that the funds in the amount of 310000 tenge received on the loan dated August 9, 2017, were terminated by its execution during the period of marital relations, which can be traced from the bank accounts of Kaspi Bank JSC, and therefore are not subject to recognition as a common debt of the spouses. Funds under the bank loan agreement dated February 16, 2018 (Kaspi Bank JSC) in the amount of KZT 1,000 000 were received by the plaintiff during the marriage, that is, during the period of joint residence of the spouses. The defendant's arguments that the amount of 1,000,000 tenge received on the loan was not used for the needs of the family are refuted by the testimony of the defendant himself, who explained that part of this amount was used to repair the apartment, in which he himself participated, personally bought linoleum and covered. This was also shown by witness BSH.K. The defendant's arguments that he also took out loans to repair the car, so the plaintiff spent the rest of the loans herself at her own discretion, cannot be taken into account, since his final obligation to repay the loans has not yet occurred. The defendant has not lost the right, after its repayment, to apply to the former spouse for compensation of the share of actually completed loan payments.

 

Currently, no such demands have been received, due to its prematurity. The court recognizes the loan received in the name of the plaintiff on February 16, 2018 as joint, and the joint marital property regime applies to this loan, unless otherwise specified, on the date of termination of the marital relationship on January 1, 2019. There is no debt owed to Kaspi Bank JSC, this fact was not disputed by the parties. According to the repayment schedule of the bank loan, the amount of the principal debt, remuneration, and banking services amounted to KZT 43,469 per month. At the time of the actual termination of the marital relations of the spouses, established by the court on January 1, 2019, the debt was partially repaid, the balance of the debt was 1651822 tenge (38*43469). For the period from January 2019 to October 20, 2020, the amount of 956318 tenge was repaid. (22*43469) The funds received under the bank loan agreement with Halyk Bank were used to repay all debts under the previous bank loan agreement under the consumer credit facility No. R4463966-002 dated August 9, 2017. Thus, the obligations of the parties under the bank loan agreement with Kaspi Bank JSC have been terminated by its execution. When applying for a loan from the National Bank, the parties were not married, and the defendant did not give permission for a loan. However, since they were used to repay the loan that was taken during the marriage, this amount should also be taken into account during the division, in view of the actual costs incurred to repay the loan taken during the marriage in the amount of 66,8046 tenge. This amount is confirmed by a receipt for transfer to the account of early repayment of the debt. Accordingly, the obligation to repay the debt is the obligation of both spouses. (956318+668046=1624364). Based on the above, the court believes that the defendant has the right to demand compensation from the plaintiff for 1/2 of the share of the payments he has actually already made on the bank loan in the amount of 812,182 tenge. In such circumstances, the court concludes that the plaintiff's claims are subject to partial satisfaction. In accordance with Part 1 of Article 109 of the Civil Procedure Code of the Republic of Kazakhstan (hereinafter CPC), the court awards all expenses incurred in the case to the party in whose favor the decision was made. If the claim is partially satisfied, the costs are awarded to the plaintiff in proportion to the part of the claims denied to the plaintiff. The plaintiff incurred the costs of paying the state fee, given that the claims were partially satisfied, therefore, the court costs in the amount of 8,122 tenge are subject to reimbursement, in proportion to the satisfied part of the claim. In accordance with Article 113 of the Civil Procedure Code of the Republic of Kazakhstan, for the participation of a representative in a civil proceeding, the actual expenses incurred for property claims are reimbursed – no more than 10% of the amount recovered by a court decision. In this regard, 81,000 tenge of representative expenses are subject to collection from the defendant, as they are confirmed by receipts No. 5 dated January 18, 2022, and the service agreement dated January 18, 2022. Guided by Articles 223-226 of the CPC, the court DECIDED: To partially satisfy the claims of the IA against the ISB on the division of debt obligations under bank loan agreements. To collect from the HMB in favor of the IA the amount of 812182 tenge, the refund of the state duty in the amount of 8122 tenge, the costs for the participation of a representative of 81000 tenge, a total of 901304 (nine hundred one thousand three hundred four) tenge for debt obligations under bank loan agreements

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