Foreclosure on the debtor's property.
In chapter 7 of the Law on Enforcement Proceedings, paragraph 1 of the "Basic Rules" provides for the stage of foreclosure on the debtor's property, which includes the identification, arrest, assessment and storage of the debtor's property (Articles 55-71). No. 2/2017, paragraph 1 of Article 55 of the Law on Enforcement Proceedings indicates that foreclosure on the debtor's property includes withdrawal and (or) its compulsory sale or transfer to the recoverer. Paragraph 8 of article 55 of the Law on Enforcement Proceedings stipulates that foreclosure on the debtor's property, including a share in the common property, is carried out by a bailiff with court approval, obtained in accordance with the procedure established by the procedural legislation of the Republic of Kazakhstan. In most cases, bailiffs, referring to the above-mentioned provision of the Law, issue a decree on foreclosure on the debtor's property and send it to the court for authorization.
Courts, as a rule, authorize such orders of bailiffs. For example, by a decree of the private bailiff of the executive district of Astana A. dated June 17, 2016, foreclosure was levied on an apartment located in Astana, 17/1 Lva Tolstogo Street, apartment 107, owned by debtor R., which was authorized on June 17, 2016 by the Esil District Court. By the decree of the private bailiff of the executive district of the Akmola region A. On April 13, 2016, foreclosure was levied on an apartment located in the city of Kokshetau, 79 Yanko Street, apartment 39, owned by debtor B., which was authorized on April 13, 2016 by the Kokshetau City Court. By the decree of the private bailiff of the executive district of the Mangystau region of the city of Aktau K. On September 9, 2016, foreclosure was levied on an apartment located in Aktau, 12th microdistrict, building No. 68, apartment 73, owned by debtor T., which was authorized on September 9, 2016 by the specialized interdistrict economic court of the Mangystau region. Thus, some courts consider that, within the limits of the powers granted to bailiffs, the latter have the right to independently foreclose on the debtor's property (dwelling). These actions of the court are related to a flaw in the legislation. Indeed, paragraph 8 of article 55 of the Law on Enforcement Proceedings provides for foreclosure on the debtor's property with court approval, obtained in accordance with the procedure established by the procedural legislation of the Republic of Kazakhstan. Meanwhile, paragraph 1 of Article 25 of the Constitution of the Republic of Kazakhstan states. The dwelling is inviolable. The deprivation of housing is not allowed, except by a court decision. Article 26 of the Constitution of the Republic of Kazakhstan states: 1. Citizens of the Republic of Kazakhstan may have any legally acquired property in private ownership. 2. Property, including the right of inheritance, is guaranteed by law. 3. No one may be deprived of his property except by a court decision. Paragraph 3 of article 57 of the Law on Enforcement Proceedings, while allowing foreclosure on mortgaged property, with the exception of real estate that is collateral for a mortgage loan obligation, provides for foreclosure on mortgaged property only by court order, while respecting the rights of the mortgagee.
Foreclosure on the debtor's property.
The legislation regulating the issues of foreclosure on the obligation of a mortgage housing loan provides for foreclosure on property only by court decision. The application of paragraph 8 of Article 55 of the Law on Enforcement Proceedings concerning Housing is in conflict with the Constitution of the Republic of Kazakhstan, which does not allow the deprivation of property owned by private property, except by a court decision. The decision of the bailiff, authorized by the court, does not acquire the force of a judicial act, as it does not correspond to paragraph 3 of Article 76 of the Constitution of the Republic of Kazakhstan. In addition, Part 1 of Article 21 of the CPC contains an exhaustive list of judicial acts adopted by the court (in the form of decisions, rulings, resolutions and orders). In this regard, the most common complaints of debtors are complaints about the actions of bailiffs to foreclose on real estate – housing. This issue can cause social tension. Therefore, those courts that believe that no one can be deprived of their home, except by a court decision, are justified in doing so, therefore they believe that foreclosure on the debtor's property (home) can only be carried out under the supervision of the court in order to comply with the constitutional rights of property owners, as well as the requirements of legislation (Civil Code, CPC, the Law on enforcement proceedings, the Law of the Republic of Kazakhstan "On mortgage of immovable property"). For example, by a ruling of the Kostanay City Court dated June 22, 2016, the private bailiff was refused permission. By the ruling of the Kokshetau City Court of the Akmola region dated April 1, 2015, it was refused to grant a sanction for foreclosure on property owned by debtor Z. By a ruling of the Yessil District Court of Astana dated April 29, 2016, it was refused to authorize private bailiff M. to foreclose on property owned by debtor I. By the resolution of the Supervisory Judicial Board for Civil and Administrative Cases of the Supreme Court of the Republic of Kazakhstan dated April 1, 2015, the ruling and decision of the Appellate Judicial Board for Civil and Administrative Cases of the Almaty City Court dated August 14, 2014, and the decision of the Cassation Judicial Board of the Almaty City Court dated October 15, 2014 were canceled.
The decision of the Bostandyk District Court of Almaty dated June 11, 2014 was upheld. Challenging the legality and validity of judicial acts of the appellate and cassation boards, IP "A" pointed out that the court of first instance correctly identified and clarified the range of circumstances relevant to the case. In particular, by the decision of the interdistrict Economic Court of Almaty dated November 15, 2011, a settlement agreement was approved, under the terms of which IP "A" undertook to repay the debt in the amount of 254,273,400 tenge. At the same time, the court of first instance did not consider the issue of foreclosure on the debtor's property, meanwhile, the bailiff, by his decision, foreclosed on the property, which is illegal. The court of the supervisory instance agreed with the conclusions of the court of first instance, which justified the decision by saying that, from the meaning of article 2 of the Law on Enforcement Proceedings, the bailiff is obliged to execute the enforcement document in a timely manner and in strict accordance with the judicial act. It is clear from the writ of execution issued to the recoverer by JSC "E" that the debtor is obliged to pay the recoverer a certain amount of money. There are no instructions on foreclosure on property in this document, therefore, the bailiff, by virtue of the powers granted to him, is obliged to establish whether the debtor has funds and take measures to recover them. In the event of their absence, raise the issue of changing the method and procedure of execution before the court that reviewed the case or before the court at the place of execution. Such judicial practice was formed in order to protect citizens from the illegal deprivation of their homes during the execution of a decision by bailiffs. Therefore, if the enforcement document contains an indication only of the recovery of funds from the debtor, and the bailiff has not established the existence of such funds, for this reason the decision is not executed, then the circumstance complicating the execution of the judicial act is the lack of money from the debtor. Consequently, the issue of the sale of property is subject to resolution by the court by considering the party's application for a change in the method and procedure of execution of the decision, and not by the bailiff by authorizing the court's decision to foreclose on the debtor's property. The generalization showed that the courts have questions about the subjects of applying to the court with a request to change the method and procedure for executing a court decision by foreclosing on the debtor's property.
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