Foreclosure on the debtor's real estate has been refused | Refusal by the court to sell the seized apartment | Legal protection from the actions of a Private bailiff
The court had a civil case on the submission of a Private bailiff Sultanbekov Talgat Orazbekovich (Hereinafter referred to as CHSI) on foreclosure on the real estate of the debtor BSHT (Hereinafter referred to as the debtor), who asks the Court to foreclose on real estate - a 4-room apartment located at the address: East Kazakhstan region, ......, Z street, 33, sq. 54, owned by BST. The representation of the Private bailiff Sultanbekov T.O., on the foreclosure of the debtor's real estate did not agree on the following arguments. On 26.10.2006, a Bank Loan Framework Agreement No. MK210-2006 dated 26.10.2006 was concluded between the Debtor and the Recoverer. (hereinafter referred to as the -1 Framework Agreement), in accordance with which the Bank provided the Borrower with a non-revolving credit line in the amount of KZT 18,500,000, for use until 10/26/2016. In this regard, individual bank loan agreements were concluded between the parties.: 1) No.MK210-2006/1 dated October 26, 2006 in the amount of 12,050,000 tenge for a period of 120 months; 2) No. MK210-2006/2 dated November 2, 2006. US ummu 3,200,000 tenge for a period of 120 months; 3) No. MK-210-2006/3 dated November 9, 2006. in the amount of 1,600,000 tenge for a period of 120 months; 4) No. MK-210-2006/4 dated 20.11.2006 in the amount of 1,650,000 tenge for a period of 60 months.
Also, between the Bank and IP BS.T. The Bank Loan Framework Agreement No.MK024-2007 dated 6.02.2007 was concluded. (hereinafter referred to as Framework Agreement -2), in accordance with which the Bank provided the Borrower with a non-revolving credit line in the amount of KZT 6,000,000, for a period of use until 02/6/2012. Further, on 6.06.2007, the Bank and the Borrower concluded an Additional Agreement No. 1 to the Framework Agreement-2, according to which the Borrower increased the credit line in the amount of 11 500 000 tenge, until 6.02.2012. In this regard, individual bank loan agreements were concluded between the parties.: 1) No.MK024-2007/1 dated 7.02.2007 in the amount of 4,000,000 tenge for a period of 60 months; 2) No. MK024-2007/2 dated 19.02.2007 in the amount of 2,000,000 tenge for a period of 60 months; 3) No. MK-024-2007/3 dated 7.06.2007 in the amount of 2,500,000 tenge for a period of 56 4) No. MK-024-2007/4 dated 06/21/2007 in the amount of 3,000,000 tenge for a period of 56 months. In order to ensure that the borrower fulfills its obligations to repay the loan, real estate was provided to the Bank as collateral.: 1). A store with a total area of 273.70 sq.m., a usable area of 227.50 sq.m., with the right of private ownership to a land plot with an area of 0.2092 hectares, located at: g......., 73 "G" street, owned by BM.I., accepted as collateral on the basis of a Pledge Agreement No.ZNU210M-2006/1 dated 1.11.2006.and Additional Agreement No. 1 dated 6.02.2007 to the Pledge Agreement No.ZNU210M-2006/1 dated 1.11.2006, Additional Agreement No. 2 dated 6.06.2007 to the Pledge Agreement No.ZNU210M-2006/1 dated 1.11.2006, Additional Agreement No. 3 dated 15.10.2008 to the Pledge Agreement No.ZNU210M-2006/1 dated 1.11.2006 – ownership to the Mortgagor of the BMI; 2). 4-room apartment with a total area of 77.50 sq.m., a living area of 48.40 sq.m., located at........., 33 Z street, 54 sq.m., owned by private ownership BSH.T., accepted as collateral on the basis of the Pledge Agreement no. ZKvFM210-2006/2 dated 1.11.2006 and Additional Agreement No. 1 dated 6.02.2007 to the Pledge Agreement Pledge Agreement No. ZKvFM210-2006/2 dated 1.11.2006, Additional Agreement No. 2 dated 6.06.2007 to the Pledge Agreement No. ZKvFM210-2006/2 dated 1.11.2006, Additional Agreement No. 3 dated 15.10.2008. to the Pledge Agreement no. ZKvFM210-2006/2 dated 1.11.2006 – ownership of the Borrower BSHT; 3). 3-room apartment with a total area of 60.70 sq.m., a living area of 35.90 sq.m., located at....., 27b street, sq.67, owned by private property of MA.M., accepted as collateral on the basis of the Pledge Agreement No. ZKvFM210-2006/3 dated 1.11.2006 and Additional Agreement No. 1 dated 6.02.2007 to the Pledge Agreement Pledge Agreement No. ZKvFM210-2006/3 dated 1.11.2006, Additional Agreement No. 2 dated 6.06.2007. to the Pledge Agreement No. ZKvFM210-2006/3 dated 1.11.2006, Additional Agreement No. 3 dated 15.10.2008 to the Pledge Agreement No. ZKvFM210-2006/3 dated 1.11.2006 – ownership of MAM; 4) equipment – a mixer of components for the manufacture of elastic PU foam, a machine for cutting foam rubber, located at ...., 73g G street, owned by BM.I., accepted as collateral on the basis of the Pledge Agreement No. Z210-2006/4 dated 11/11/2006, Additional Agreement No. 1 dated 10/15/2008 to the Pledge Agreement No. Z210-2006/4 dated 11/11/2006 – ownership of the Mortgagor of BMI; 5) goods: upholstered furniture, foam rubber, fabrics located at 152 Ibraeva St., 73g G St., owned by BM.I., accepted as collateral on the basis of the Pledge Agreement No. Z210-2006/5 dated 1.11.2006, Additional Agreement No. 1 dated 10/15/2008 to the Pledge Agreement No. IZ046M-2008 dated 10/11/2008 – ownership of the Mortgagor of the BMI. In connection with the failure to fulfill contractual obligations properly, the Recoverer of ATFBank JSC appealed to the International Arbitration "IUS" with a statement of claim against the individual entrepreneur BSH.T., for the recovery of the amount owed.
Foreclosure on the debtor's real estate has been refused | Refusal by the court to sell the seized apartment | Legal protection from the actions of a Private bailiff
On 12/30/2020, Arbitration, having considered the materials provided by the parties as evidence in the framework of the arbitration case, the arbitration Decided: Statement of Claim ATFBank JSC to the individual entrepreneur BSH.T., partially satisfy and collect the total amount of debt in the amount of 40,840,613.05 tenge. According to the ZRK On enforcement proceedings and the status of bailiffs of Article 72, the order of sale of the debtor's property is stipulated:
When foreclosure is levied on the property of an individual, the sale of this property is carried out in the following order:
1) first of all - property that is not essential, securities, currency valuables, precious metals and precious stones, jewelry, decorative items and furnishings; 2) second of all - vehicles, real estate (except housing); 3) third of all - housing.
When foreclosing on the property of a legal entity, the sale of this property is carried out in the following order:
1) first of all - movable property that is not directly involved in the production of goods, performance of works or provision of services, including finished products (goods), securities, currency valuables, precious metals and precious stones, jewelry, decorative items and furnishings; 2) second of all - immovable property, not directly involved in the production of goods, performance of works or provision of services; 3) in the third place - property directly used in the production of goods, performance of works or provision of services: industrial real estate, raw materials, machine tools, equipment and other fixed assets. Thus, the CSI violates the norms of Article 72 of the SAM On enforcement proceedings and the status of bailiffs. In addition, in its submission, the CSI does not describe the Debtor's other collateral assets, misleading the judge. In addition, we would like to draw the court's attention to the following facts:
Firstly, the above-mentioned object of immovable property belongs to the Debtor together with the spouse of the BMI on the right of joint joint ownership of the spouses, acquired in the name of the Debtor under the contract of sale dated October 03, 2000, that is, during the marriage. Copies of the apartment purchase agreement and marriage certificate are attached.
Secondly, the enforcement proceedings were initiated by the bailiff on the basis of the ruling of the Almaly District Court No. 2 of Almaty, which was issued on the basis of the decision of the International Arbitration Court "IUS" (hereinafter referred to as the arbitration) dated December 30, 2020. In the descriptive part of the above–mentioned arbitration decision, it is noted that initially, in the claims, the plaintiff ATFBank JSC (hereinafter referred to as the bank), in addition to the main claim (for debt collection under two framework agreements), also requested foreclosure on mortgaged property (page 8 of the arbitration decision). "However, subsequently, the plaintiff requested that the claims for foreclosure on mortgaged property belonging to MA.M., BM.I. and BS.T. be left without consideration" (page 9 of the arbitration award). And also in the reasoning part of the arbitration decision: "During the arbitration proceedings, the plaintiff requested that the claims for foreclosure on mortgaged property belonging to MA.M., BM.I. and BS.T. be left without consideration. In this connection, the arbitrator considered the case within the limits of the claims against IP BSH.T. (page 18, the decision of the International Arbitration Court "IUS" in case No. 20/17-TC dated December 30, 2020 is attached).
Thus, by submitting a submission to the Court on foreclosure on the debtor's immovable property, T.O. Sultanbekov goes beyond the limits of the arbitration decision.
Thirdly, Part 1 of Article 250-1 of the Civil Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the CPC, CPC RK) stipulates that during the enforcement of a court decision, if it is impossible to repay debts at the expense of other property or if the property is insufficient, the recoverer or the bailiff has the right to apply to the court with an application for foreclosure on the debtor's immovable property. I emphasize - with a statement, not a submission, as in our case, that is, the form of the document submitted to the Court by the bailiff does not comply with the requirements of the law. Part 3 of the same article of the CPC establishes that, according to the rules of this article, the recoverer's application for foreclosure on the real estate of a pledgor who is not a debtor, or if the real estate was acquired by the debtor under a residential mortgage loan, is not subject to consideration. And the spouse of the Debtor of the BMI, who is not a debtor to the bank, is a co-owner on the right of joint joint ownership of the spouses of the immovable property, which the CSI proposes to foreclose on.
In addition, paragraph 8 of the Regulatory Resolution 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 No. 1 defines the following: «8. In accordance with the requirements of article 60 of the Law, foreclosure on the debtor's share of the common property is provided for by dividing the common property, determining the share or allocating the share in court at the request of the bailiff or at the claim of the recoverer. When foreclosing on the debtor's debts on property that is common joint property, the bailiff or a party to the enforcement proceedings must apply to the court with a request to determine the debtor's share, if the shares are not determined in accordance with the procedure established by law. Based on the results of the review, the court issues a ruling on the establishment of the debtor's share in the specific property that is being foreclosed on. The issue of allocating a share or dividing shared property is resolved in accordance with Articles 216, 218 and 222 of the Civil Code.". Consequently, within the meaning of the above-mentioned Normative Resolution of the Supreme Court, the bailiff does not have the right to submit a submission to the Court on foreclosure on the debtor's immovable property, which is the common joint property of the spouses, without determining the debtor's share in court.
Fourthly, on February 23, 2022, CHSI Sultanbekov T.O., through his assistant Zhanar, issued me a new Permit for the sale of the seized property, dated February 22, 2022, indicating the 3-month period of the permit, which expires on May 22, 2022, respectively. CHSI Sultanbekov T.O. appealed to the Court without waiting for the expiration of his permit. Thus, it ignores the norms of law and infringes on the rights of the Debtor.
To date, the Bank has been offered several solutions to the issue. The fact that the closing of the loan agreement lasted for 10 years or more is also the fault of the bank, which ignored all the offers of the Borrower. The value of the collateral exceeds the amount of the bank's claims. At the same time, it should be borne in mind that the borrower is not against the sale of commercial facilities, but against the sale of apartments, since this is the only housing of the Mortgagor. In accordance with art.8 of the CPC RK, everyone has the right to apply to the court for protection of violated or disputed constitutional rights, freedoms or protected interests. In accordance with Article 15 of the Civil Procedure Code of the Republic of Kazakhstan, the parties choose their position, ways and means of defending it independently and independently of the court, other bodies and persons during civil proceedings.
Foreclosure on the debtor's real estate has been refused | Refusal by the court to sell the seized apartment | Legal protection from the actions of a Private bailiff
166 of the Civil Procedure Code of the Republic of Kazakhstan, where the defendant submits to the court a response to the Statement of Claim with attached documents that refute the arguments regarding the claim, as well as copies of the response and the documents attached to it. Based on the above and in accordance with art. 166 of the Civil Procedure Code of the Republic of Kazakhstan, the Court was asked to: Submit a Private bailiff for foreclosure on real estate - a 4-room apartment located at the address: East Kazakhstan region, ....., ul. Z, 33, sq. 54, owned by BSHT – to refuse satisfaction; On April 13, 2022, the Semey City Court of the East Kazakhstan region considered in open court the submission of the private bailiff Sultanbekov Talgat Orazbekovich on foreclosure on real estate. The court, having heard the explanations of the participants in the process, examined the arguments of the application and the materials of the civil case, came to the following conclusion. In accordance with Article 246 of the Civil Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the CPC), the court that issued the decision or court order in the case, as well as the court at the place of execution of the decision, may, at the request of the bailiff and (or) at the request of the parties to the enforcement proceedings, change the method or procedure for its execution, at the request of the parties to the enforcement proceedings to postpone or delay the execution of a court decision in installments if circumstances arise that make it difficult or impossible to perform enforcement actions.
According to paragraph 8 of the regulatory resolution of the Supreme Court "On the application by Courts of Certain Norms of Legislation on enforcement proceedings" No. 1 dated March 31, 2017 (hereinafter referred to as the Regulatory Resolution), when foreclosing on a debtor's debts on property that is common joint property, the bailiff or a party to the enforcement proceedings must apply to the court with a request to determine the debtor's shares, if the shares are not determined in accordance with the procedure established by law. Based on the results of the review, the court issues a ruling on the establishment of the debtor's share in the specific property that is being foreclosed on. Having examined the evidence provided by the parties, taking into account that the debtor's share has not been determined in the joint immovable property, as required by paragraph 8 of the regulatory resolution, and also in view of the fact that the CHSI granted permits for the sale of seized property dated February 22, 2022 for 3 months of voluntary sale of property to repay the debt, the court concludes that applying for foreclosure on real estate. In such circumstances, the CSI's submission on foreclosure on immovable property must be left without satisfaction. Based on the above, guided by articles 246, 268-269 of the Code of Civil Procedure, the court DETERMINED: To refuse to satisfy the submission of the private bailiff Sultanbekov Talgat Orazbekovich on foreclosure on the debtor's immovable property.
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