Foreclosure on collateral | Increase in the initial selling value of the collateral| Postponement in the sale of collateral
The judicial Board for civil cases of the Almaty City Court, consisting of: the presiding judge Karibaev Zh.Zh., judges Kubashev A.E., Umarov Zh.A., with the participation of a representative of the plaintiff S/I.B., a representative of the defendant Sarzhanov G.T., having considered in open court in the courtroom the civil case on the claim of JSC Bank Center Credit to S.A.E. on foreclosure on collateral received on the appeal of the defendant's representative, G.T. Sarzhanov, against the decision of the Turksib District Court of Almaty dated May 15, 2019. Bank Center Credit JSC (hereinafter referred to as the Bank) filed a lawsuit against the United States for foreclosure on collateral in the form of a residential building consisting of two living rooms and a hall, with a land plot with a total area of 0.0912 hectares, share 0.0629, located at; Almaty,Turksibsky district, S. 575 "G" street, (formerly K. trakt street, 575 G), owned by s.A.E. with an initial selling price of 7,324,000 tenge. The claim was satisfied by the decision of the Turksib District Court dated May 15, 2019. The court decided: to foreclose on the mortgaged property in the form of a residential building consisting of two living rooms and a hall, with a land plot with a total area of 0.0912 hectares, share 0.0629, located at; Almaty, Turksib district, S street.... house 575 "G", (formerly Krasnogvardeisky tract street house 575 G) owned by s.A.E., with an initial value of 7,324,000 tenge. To collect from the S.A.E. in favor of the Joint-Stock Company "Bank Center Credit" the amount of the state duty in the amount of 1,263 tenge.
Foreclosure on collateral | Increase in the initial selling value of the collateral| Postponement in the sale of collateral
Disagreeing with the court's decision, the defendant's representative filed an appeal, in which he asked the court to cancel the decision and make a new decision with the establishment of the initial selling value of real estate in the amount of 25,847,834 tenge based on the report on the valuation of real estate No. 216 dated December 26, 2018, executed by Asstssment Group Bakyt LLP. After listening to the arguments of the defendant's representative who supported the arguments of the complaint, the explanations of the plaintiff's representative who objected to the arguments of the complaint, having studied the arguments of the appeal and the case materials, the board comes to the following conclusion. The court found that under the bank loan agreement dated 30.01.2013 No. F1-51, the Bank provided K.T.S. with a loan in the amount of KZT 6,452,000 for a period of 240 months. In order to ensure the fulfillment of obligations under the loan agreement, Mortgage agreement No.A1-52 dated 30.01.2013, a pledge agreement was concluded between the Bank and the defendant S.A.E., which pledged an apartment building consisting of two living rooms and a hall, with a land plot with a total area of 0.0912 hectares, a share of 0.0629, located at address; Almaty, Turksib district, S. street.. house 575 "G", (formerly Krasnogvardeisky tract street house 575 G).
The borrower's obligations to repay the loan amount and remuneration have not been properly fulfilled. In this regard, by the decision of the Bostandyk District Court of Almaty dated 05/25/2015, the claim of Bank CenterCredit JSC was satisfied. It was decided: to collect in solidarity with the Candidate of Technical Sciences, S.A.E., S.G.E. in favor of JSC "BankCentrCredit" the amount of debt in the amount of 8,224,545 tenge. The court's decision has entered into legal force, and is being executed by CHSI Abeldinova Zh.B.. As part of the enforcement proceedings for No. 6577-15-A-1748 dated 07/28/2015, CHSI Abeldinova Zh.B. Measures have been taken to enforce the enforcement document, but so far the debtors have not executed the enforcement document. In this regard, the Bank has filed a lawsuit against foreclosure on the collateral. According to the valuation report dated 10.10.2018 compiled by Dalelis LLP, No. 21O-2018, the market value of a residential building with a total area of 62.50 sq.m., with a land area of 0.0912 hectares, a share of 0.0629, located at:Almaty city, Turksib district, Suyunbaya street, house 575 "G" (formerly Krasnogvardeysky tract street, house 575 g), owned by s.A.E. is 7,324,000 tenge.
Foreclosure on collateral | Increase in the initial selling value of the collateral| Postponement in the sale of collateral
In accordance with the requirements of article 20 of the Law "On Mortgage of Immovable Property", it follows that foreclosure on mortgaged property may be levied to satisfy the claims of the mortgagee in the event of non-fulfillment by the debtor of the obligation secured by the mortgage for which he is responsible. The mortgagee has the right to satisfy his claims by selling the mortgage in court. By virtue of the requirements of Article 317 of the Civil Code of the Republic of Kazakhstan, foreclosure on pledged property may be levied to satisfy the claims of the pledgee (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. The Board considers the court's conclusion on foreclosure to the mortgaged property to be justified, since foreclosure on the mortgaged property is the right of the mortgagee, and the fulfillment of the obligation secured by the pledge is the responsibility of the borrower and the mortgagor.
When resolving the case on this claim, the court correctly applied the norms of substantive law to the established circumstances of the case. The court of first instance, determining the initial sale value of the property subject to foreclosure, proceeded from the valuation report dated 10.10.2018 compiled by Dalelis LLP. The defendant provided an alternative assessment report of the mortgaged property No. 5 dated December 26, 2018, executed by Assessment Group Bakyt LLP, for which the market value of the property amounted to 25,847,834 tenge. In this regard, the board appointed a judicial commodity examination, according to the conclusion of which No. 7312 dated December 23, 2019, the cost of a residential building consisting of two rooms and a hall with a plot of land located at 575 S. Street, Turksib district, Almaty, at the time of the study amounted to 14,621,578 tenge. The conclusion on the issue of determining the price of real estate is recognized by the board as relevant, appropriate, legitimate, acceptable evidence, and has a greater degree of relevance at the time of this review. Therefore, the board considers it fair to determine the price of real estate in the upward direction from 7,324,000 tenge to 14,621,578 tenge.
In these circumstances, the board considers the court's decision to be subject to change only in terms of setting the initial sale price of the pledged property. Based on the above and guided by Articles 423, paragraph 2 of Article 424, Articles 425-426 of the CPC, the judicial board DECIDED: The decision of the Turksib District Court of Almaty dated May 15, 2019, in this case should be changed. The initial selling price of the mortgaged property in the form of an apartment building consisting of two living rooms and a hall, with a plot of land located at; Almaty, Turksib district, S. street. house 575 "G", (formerly K street... tract house 575 G) owned by S.A.E., foreclosed with an initial value of 7,324,000 tenge to change, increasing to 14,621,578 tenge (fourteen million six hundred twenty one thousand five hundred seventy eight) tenge.
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