Foreclosure on mortgaged property | Sale of collateral through an auction | The order of sale of the seized property
District Court no.2 Auezovsky district of Almaty, under the chairmanship of judge Turlybekov B.T., with the secretary of the court session Zhantasova S., with the participation of a representative of the plaintiff Nasen B.M., Tleubaev M.B., defendant Sh.O.N., third parties of the private bailiff of the executive district of the Almaty region Myrzabaev M.K., a third person K.O.Yu., a representative of the third person B.A.P. by proxy Sarzhanova G.T. (power of attorney dated 18.08.2016), having considered in open court a civil case on the claim of Eurasian Bank JSC against S.O.N., a third party, the private bailiff of the executive district of the Almaty region, Marat Kuttybayuly Myrzabaev, regarding foreclosure on mortgaged property, the court established: The plaintiff is Joint Stock Company Eurasian Bank (hereinafter referred to as the plaintiff, the Bank) filed a lawsuit against SEAN, a third party, the private bailiff of the executive district of the Almaty region, Marat Kuttybayuly Myrzabayev (hereinafter referred to as – CHSI Myrzabaev M.K.), arguing that on the basis of the Bank Loan Agreement No. F17/262/2007 dated 07/03/2007 (hereinafter referred to as the loan agreement), concluded between B.A.P. (the borrower) and the Bank, the borrower was granted a loan in the amount of 75,600,000 tenge. To ensure proper fulfillment of obligations by the Borrower under the Mortgage Agreement No. F17/262/2007/1 dated 03.07.2007, he pledged a four-room apartment with a total area of 97.60 sq.m., located at the address: Almaty, Auezovsky district, mkr...., house 6, sq. 10, owned by SEAN. Due to the fact that the Borrower violated its obligations within the time limits set by the Agreement, the Bank initiated a statement of claim to the court, which resulted in the decision of the district court no.2 Auezovsky district of Almaty dated 05/27/2011, the claims of Eurasian Bank JSC against B.A.P., K.O.Yu. and Sh.O.N. for recovery of the amount owed and invalidation of the mortgage agreement were partially satisfied, jointly and severally with B.A.P. and K.O.Yu. in favor of Eurasian Bank JSC, the amount in the amount of 99,987,183 tenge.
Foreclosure on mortgaged property | Sale of collateral through an auction | The order of sale of the seized property
The counterclaim for invalidation of the mortgage agreement was refused in full. The court's decision came into force on September 22, 2011. On April 17, 2014, a writ of execution was issued, which is currently being enforced by CHSI Myrzabaev M.K.. The remaining debt to the Bank as of July 25, 2017 is 94,003,431.06 tenge. By virtue of clause 4.2.11 of the Mortgage Agreement, the Pledgor undertakes, in case of non-fulfillment/improper fulfillment by the Pledgor of obligations under the Main Agreement, not to oppose the Pledgee in any form during the sale of the Pledged Object. According to the appraisal report of the NOC "Apprais Consulting Group" for No. 027/03 dated 06/27/2017, the collateral in the form of a four-room apartment with a total area of 97.60 sq.m., at the address of Almaty, Auezovsky district, mkr. ...., house 6, sq.10 is 20,359,000 tenge. According to the Mortgage Agreement No. F17/262/2007/1 the mortgagor of a 4-room apartment located at the address: Almaty, mkrn....., house No. 6, sq.10 is Ship Oksana Nikolaevna. Requests to foreclose on the mortgaged property in the form of a 4-room apartment located at the address: Almaty, mkrn....., 6, sq.10, owned by SEAN, born on 05/11/1976.
At the hearing, the plaintiff's representatives Nasen B.M., Tleubaev M.B. supported the claim and asked to satisfy the claims in full. The defendant, Sh.O.N., did not recognize the plaintiff's claims at the hearing and testified as follows. Earlier, the plaintiff filed a lawsuit to recover from her the amount of debt in the amount of 20 578 547 tenge. This requirement is determined by the decision of the district court No.2 of the Auezovsky district of Almaty dated 05/27/2011 was left without satisfaction. She is not a party to the loan agreement, she is only the pledgor, that is, the real guarantor. Considers that the plaintiff has not provided evidence that, as a creditor, he has taken all possible reasonable measures to satisfy his claim against the main debtors, i.e. B.A.P., K.O.Yu. on the basis of the writ of execution No. 2-1749/2011 dated 04/17/2011, the proceedings on which have not been terminated to date. Since she is not a party to the enforcement proceedings, she does not have any other information about the execution of the above-mentioned writ of execution. She claims that one of the debtors, namely B.A.P. There is real estate in the form of a kindergarten located at 96 Karabulak St., Talgar district, Almaty region, which has not yet been implemented. In this regard, the defendant Sh.O.N. believes that in pursuance of the writ of execution of the Civil Registry Office, M.K. Myrzabaev did not take all reasonable measures, and the plaintiff's demands for foreclosure on the mortgaged property are premature and illegal. She asked the court to dismiss the claim in full.
Foreclosure on mortgaged property | Sale of collateral through an auction | The order of sale of the seized property
The third person, CHSI M.M.K., asked for the claim to be satisfied and testified as follows. The Writ of Execution for No. 2-1749/2011 dated 04/17/2011 has been in production since July 6, 2016. In the period from October 2016 to July 2017, only 470,000 tenge was recovered from the debtor B.A.P. in favor of the plaintiff. The remaining amount of debt remains outstanding to date. The representative of a third party, brought on the initiative of the court, B.A.P. Sarzhanov, G.T., did not recognize the claim and testified as follows. B.A.P. has a kindergarten for 60-70 places, which operates under the Balapan program. Bayanova A.P. does not refuse to pay the plaintiff the remaining amount of the debt. According to the Balapan program, if the amount is credited to the kindergarten account, Bayanova A.P. intends to pay the amount owed to the bank for 1,000,000 tenge per month, starting in October 2017. K.O.Yu., who was brought in as a third party on the initiative of the court, did not recognize the claim and believes that the Bank's claim is premature, the bailiff did not take all reasonable measures to enforce the decision of the district court No.2 Auezovsky district of Almaty dated 05/27/2011.
They asked to dismiss the claim. Having examined the materials of the civil case, having listened to the explanations of the parties and third parties, the court comes to the following conclusion. 72 of the Civil Procedure Code of the Republic of Kazakhstan, each party must prove the circumstances to which it refers as the grounds for its claims and objections, use remedies, assert, challenge facts, provide evidence and objections to evidence within the time limits set by the judge, which correspond to the fair conduct of the process and are aimed at facilitating the proceedings. According to art.224 of the CPC RK, the court's decision must be lawful and justified. The court bases its decision only on the evidence presented by the parties and examined at the court session. According to art.225 of the CPC RK, when making a decision, the court evaluates the evidence, determines which circumstances relevant to the case have been established and which have not been established, what are the legal relations of the parties, what law should be applied in this case and whether the stated claim is subject to satisfaction.
The court resolves the case within the limits of the plaintiff's claims. The Court found that on the basis of the Bank Loan Agreement No. F17/262/2007 dated 07/03/2007 (hereinafter referred to as the loan agreement), concluded between B.A.P. (the borrower) and the Bank, the borrower was provided with a loan in the amount of 75,600,000 tenge. To ensure proper fulfillment of obligations by the Borrower under the Mortgage Agreement No. F17/262/2007/1 dated 03.07.2007, he pledged a four-room apartment with a total area of 97.60 sq.m., located at 6, sq. 10, Auezovsky district, Almaty, owned by Sh.O.N.. These circumstances are recognized and not disputed by the parties. By the decision of the district court no.2 Auezovsky district of Almaty dated 05/27/2011, the claims of Eurasian Bank JSC against B.A.P., K.O.Yu. and Sh.O.N. for recovery of the amount owed and invalidation of the mortgage agreement were partially satisfied, jointly and severally with B.A.P. and K.O.Yu. in favor of Eurasian Bank JSC, the amount in the amount of 99,987,183 tenge. The rest of the claim regarding the recovery of the amount owed by Ship O.N. to repay the debt under the bank loan agreement No. F17/262/2007 dated 07/03/2007 was denied. The counterclaims of B.A.P., S.O.N. to the plaintiff regarding the recognition of the mortgage agreement as invalid were refused in full. The court's decision came into force on September 22, 2011. On April 17, 2014, a writ of execution was issued, which is currently being executed by CHSI Myrzabaev M.K.
Foreclosure on mortgaged property | Sale of collateral through an auction | The order of sale of the seized property
During the execution of the court decision, B.A.P.'s property was sold in the form of a 1-room apartment in the amount of 8,457,766 tenge, of which the activities of a private bailiff in the amount of 253,733 tenge were paid, and the remaining amount of 8,159,935 tenge was transferred to the account of Eurasian Bank JSC. As established by the court, the debtor B.A.P. also has privately owned real estate located at 96 Karabulak St., Talgar district, Almaty region, operating under a kindergarten operating under the Balapan program. This property has not been sold by the bailiff to date. The court also found that the debtor, K.O.Yu., has immovable property, in the form of a 2-room apartment, located at the address: Almaty, ...., 78, sq.67. From the case materials, it is stipulated that at the present time, not all measures have been taken by the bailiff as part of the enforcement proceedings for the sale of the property of debtors B.A.P. and K.O.Yu., not all measures have been taken with respect to their property. Sh.O.N. She is not a party to a bank loan agreement and a court decision has refused to recover the amount of debt from her, and she is only a pledgor, that is, a real surety. In accordance with Clause 3 of Article 332 of the Civil Code of the Republic of Kazakhstan, the surety is liable to the creditor within the amount specified in the surety, unless otherwise provided by the terms of the surety. Before making claims against the surety bearing subsidiary liability, the creditor must take reasonable measures to satisfy this claim by the debtor, in particular, by offsetting the counterclaim and foreclosing on the debtor's property in accordance with the established procedure.
According to paragraph 3 of paragraph 7 of the Regulatory Resolution No. 1 of the Supreme Court of the Republic of Kazakhstan "On the application by courts of certain norms of legislation on enforcement proceedings" dated March 31, 2017, the court, deciding on foreclosure on property, must proceed from the rules of the order of sale of property provided for in Article 72 of the Law of the Republic of Kazakhstan "On Enforcement Proceedings and the Status of Bailiffs", to find out the ownership of the property to the debtor, its actual value and the encumbrances on it, as well as to assess the proportionality of the value of the property to the size of the remaining debt, the duration of the execution of the executive document and other noteworthy circumstances. According to Article 72 of the Law of the Republic of Kazakhstan "On Enforcement Proceedings and the status of Bailiffs", when foreclosing on the property of an individual, the sale of this property is carried out in the following order: first of all, property that is not essential items, securities, currency valuables, precious metals and precious stones, jewelry, decorative items and environment; secondly– vehicles, real estate (except housing); the third priority is housing. In such circumstances of the case, when the plaintiff (creditor) has not taken all reasonable measures to repay the debt, namely, the property of the debtors of B.A.P. has not been sold, in the form of a kindergarten located at 96, ul....., estimated at 130, in the Almaty region, Talgar district, Karabulak settlement. 000 000 (one hundred and thirty million) tenge, and the property of K.O.Yu. in the form of a two-room apartment, then the claim for foreclosure of Sh.O.N. should be dismissed completely as premature. Based on the above, guided by art. 217-219, 221 CPC of the Republic of Kazakhstan, the court DECIDED: To dismiss the claim of Eurasian Bank JSC against S.O.N. on foreclosure on mortgaged property
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