Drafting an Objection to the notary's executive order

 When receiving an executive inscription and drawing up an Objection, it is necessary to pay attention to the following facts:

In accordance with the Law of the Republic of Kazakhstan "On Notaries" for obtaining pre-trial claims, obtaining a copy of the executive inscription from a notary in accordance with the requirements of art. 92-6 of the Law.

According to paragraph 1 of Article 92-6 of the Law, after making an executive inscription, the notary sends a copy of it to the debtor with a notification of delivery no later than the next business day. And in turn, the Debtor has the right, within ten working days from the date of receipt of a copy of the executive inscription, to send objections to the stated claim in writing with notification to the notary who executed the executive inscription.

The law states that an LLP or Collection Agency is obliged to notify the Borrower of the transfer of the right (claim) to a third party via SMS notifications and/or emails within thirty calendar days from the date of conclusion of the assignment agreement, indicating the purpose of further payments to repay the loan to a third party (name and location of the person, to whom the right (claim) has been transferred under the loan agreement), the full amount of the transferred rights (claims), as well as the remaining overdue and current amounts of the principal debt, remuneration, commissions, penalties (fines, penalties) and other amounts payable.

According to paragraphs 4-1, art. 4 of the Law of the Republic of Kazakhstan "On Microfinance Activities", where, when a microfinance organization assigns rights (claims) under a micro-loan agreement to a third party, the requirements and restrictions imposed by the legislation of the Republic of Kazakhstan on the relationship between the lender and the borrower under a micro-loan agreement extend to the legal relationship of the borrower with a third party, to whom the right (claim) has been assigned.

According to Clause 3, Article 725-1 of the Civil Code of the Republic of Kazakhstan, which stipulates that the rules for calculating the annual effective interest rate under a loan agreement are determined by a regulatory legal act of the authorized body for regulation, control and supervision of the financial market and financial organizations.

According to paragraphs 6, 7 of Resolution No. 197 of the Board of the National Bank of the Republic of Kazakhstan dated August 27, 2018 "On Approval of the Rules for Calculating the Annual Effective Interest Rate under the Loan Agreement", it is stipulated that the calculation of the annual effective interest rate under the loan agreement includes all payments of the borrower on the principal debt and remuneration, as well as commissions and other payments for the entire term of the loan agreement.

 

      The calculation of the annual effective interest rate under the loan agreement does not include a penalty (fine, penalty fee) for violating the obligation to repay the loan amount and (or) pay remuneration under the loan agreement.

According to paragraph 2, Article 725-1 of the Civil Code of the Republic of Kazakhstan, a loan agreement concluded with an individual borrower that does not comply with the requirements of paragraph 1 of this Article is void.

30,000 tenge was received under the loan agreement, of which 18,000 tenge was paid in arrears, whereas in accordance with Articles 725-1, paragraph 1, paragraph 5 of the Civil Code of the Republic of Kazakhstan, the annual effective interest rate under the loan agreement cannot exceed one hundred percent, including in the event of a change in the repayment period of the loan.

In accordance with paragraph 2 of Article 92-1 of the Law of the Republic of Kazakhstan "On Notaries" (hereinafter referred to as the Law), on the basis of an executive inscription or a corresponding resolution, debt is collected for the following indisputable requirements for the performance of an obligation based on a written transaction, the due date of which has come and the default is recognized by the debtor, including in response to a claim sent by to the recoverer in the order of pre-trial settlement of the dispute.

If the claimant's claim is not indisputable, the debtor has also not received a Pre-trial claim in accordance with Articles 152 and 279 of the Civil Procedure Code of the Republic of Kazakhstan and Article 402 of the Civil Code of the Republic of Kazakhstan, providing that the judge returns the statement of claim, and the court leaves the statement of claim without consideration if the plaintiff has not complied with the pre-trial procedure established by law for this category of cases, the mandatory procedure preliminary pre-trial dispute resolution and the possibility of this procedure have not been lost and have been preserved.

According to clause 2. of art. 92-6 of the Law on Notaries, it is stipulated that the Debtor has the right, within ten working days from the date of receipt of a copy of the executive inscription or the relevant resolution, to send objections to the stated claim in writing with notification to the notary who executed the executive inscription or issued the relevant resolution.

By virtue of clause 1 of Article 382 of the Civil Code of the Republic of Kazakhstan, the terms of the contract are determined at the discretion of the parties, except in cases where the content of the relevant condition is prescribed by law.

According to clause 1 of Article 383 of the Civil Code of the Republic of Kazakhstan, the contract must comply with the rules binding on the parties, established by law (mandatory norms) in force at the time of its conclusion.

By virtue of clause 1 of Article 159 of the Civil Code, a transaction made without obtaining the necessary permission is void. From clauses 2 and 3 of Article 157-1 of the Civil Code, it follows that an invalid transaction does not entail legal consequences, except for those related to its invalidity.

In accordance with clauses 2 of Articles 92-6 of the Law, the debtor has the right, within ten working days from the date of receipt of a copy of the executive inscription or the relevant resolution, to send objections to the stated claim in writing with notification to the notary who executed the executive inscription or issued the relevant resolution.

According to paragraph 3 of Articles 92-6 of the Law, the debtor's objection must contain the reasons for disagreement with the stated claim.

In accordance with paragraph 1 of Articles 92-8 of the Law, the notary issues a resolution on the cancellation of the executive inscription no later than three working days from the date of receipt of the objection. Copies of the resolution on the cancellation of the executive inscription are sent to the recoverer and the debtor no later than the next business day after its issuance. 

Attention!   

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