Increase in the initial value of collateral | Overestimation of the value of seized property | Change in the market value of mortgaged property
The Judicial Board for civil cases of the Almaty City Court, consisting of: the presiding judge Kubashev A.E., judges Karibaev Zh.Zh., Umarov Zh.A., with the participation of a representative of the plaintiff Aidarbekov D.B., a representative of the defendant Koishybekov N. having considered in open court in the premises of the Almaty City Court the civil case against Tsesnabank JSC, PDA on foreclosure on property, received on the defendant's appeal against the decision of the Bostandyk District Court of Almaty dated April 15, 2019. Tsesnabank JSC appealed to the court with this claim, arguing that by the court's decision, the amount of debt in the amount of KZT 14,906,301 and the cost of paying the state duty in the amount of KZT 447,189 were recovered in favor of the bank. As part of the enforcement proceedings, the debtor's property status was checked and the absence of any property, with the exception of collateral, was established. In accordance with the real estate valuation report No. 0478 dated 09.10.2018, compiled by Property Valuation LLP, the market value of the mortgaged property is 30,892,000 tenge. Requests to foreclose in court on the mortgaged property belonging to U.Zh.S., namely, on an apartment building with a total area of 231.9 sq.m., a living area of 96.1 sq.m., located on a land plot of 0.0826 hectares, located at the address: Almaty, Auezovsky district, mkr....., ul....., 34, issued in accordance with mortgage agreement No.RZ14-200/000-0025 dated 03/14/2014, with the establishment of the initial sale price of the pledged property at its sale in the amount of 30,892,000 tenge.
Increase in the initial value of collateral | Overestimation of the value of seized property | Change in the market value of mortgaged property
To collect from U.J.S., in favor of Tsesnabank JSC, the court costs of paying the state fee in the amount of 1,263 tenge. By the decision of the Bostandyk District Court of Almaty dated April 15, 2019, it was decided: to satisfy the claim of Tsesnabank JSC. To foreclose in court on the mortgaged property belonging to U.J.S., namely, on an apartment building with a total area of 231.9 sq.m., a residential area of 96.1 sq.m., located on a land plot of 0.0826 hectares, located at the address: Almaty, Auezovsky district, mkr...., ul.... 34, issued in accordance with mortgage agreement No.RZ14-200/000-0025 dated 03/14/2014, with the establishment of the initial sale price of the mortgaged property at its sale in the amount of 30 316 000 tenge. To collect from U.Zh.S. in favor of Tsesnabank JSC the court costs of paying the state fee in the amount of 1,263 tenge. The defendant, having disagreed with the court's decision, describes the circumstances of the case in the appeal and expresses disagreement with the initial sale price of the mortgaged property established by the court. Requests to cancel the court's decision and to dismiss the Bank's claim. The Judicial Board, having heard the explanations of the parties, examined the arguments of the complaint, and studied the case materials, comes to the following conclusion. Between the bank and the defendant U.J.S. a bank loan agreement No.RZ14-200/000-0025 dated 03/14/2014 was concluded, according to which the bank provided the borrower with a loan in the amount of KZT 15,000,000 for a period of 120 months, where the collateral was real estate in the form of an apartment building with a total area of 231.9 sq.m., a living area of 96.1 sq.m., with a land area of 0.0826 ha, located at the address: Almaty, Auezovsky district, mkr..., ul. ..., 34, owned by U.Zh.S., issued by Mortgage agreement no.RZ14-200/000-0025 dated 14.03.2014. By the decision of the Bostandyk district Court of Almaty dated 17.05.2017. from Usmanov J.S. The amount of debt in the amount of KZT 14,906,301, as well as the state duty in the amount of KZT 447,189, was collected in favor of the Bank. According to paragraph 1 of Article 299 of the Civil Code, a pledge is a method of securing the fulfillment of an obligation, by virtue of which the creditor (pledgee) has the right, in case of non-fulfillment by the debtor of the obligation secured by the pledge, to obtain satisfaction from the value of the pledged property primarily before other creditors of the person to whom this property belongs (the pledgor), with exceptions established by this Code.
By virtue of Article 21 of the Law of the Republic of Kazakhstan "On Mortgage of Immovable Property", it is established that when deciding on foreclosure on immovable property mortgaged under a mortgage agreement, the court must determine and indicate in the decision the initial sale price of the mortgaged immovable property upon its sale. The plaintiff's party has attached to the statement of claim: - Report No. 0478 on the valuation of real estate, compiled by Property Valuation LLP dated 09.10.2018. according to which the market value of the disputed real estate is 30,892,000 tenge. - Report No. 0095 on the valuation of real estate dated 03/15/2019, compiled by Property Valuation LLP, according to which the market value of the collateral amounted to KZT 30,316,000. The defendant's party provided an assessment report No. 37/2019 of immovable property dated 03/18/2019, prepared by the Valuation Institute LLP, according to which the market value of the disputed immovable property is 80,115,000 tenge. The court of first instance used the valuation report provided by the plaintiff's side as a basis for determining the initial sale price of the collateral. At the same time, no reasoned conclusions were drawn regarding the inconsistency of the report provided by the defendant's side. By the ruling of the judicial board dated June 27, 2019, taking into account the arguments of the defendant, a forensic construction and commodity examination was appointed in the case. According to the expert opinion dated 08/22/2019, the market value of an apartment building with a total area of 231.9 sq.m., a living area of 96.1 sq.m., with a land plot of 0.0826 hectares, located at the address: Almaty, Auezovsky district, mkr...., ul...., 34 at the time of the study may be – 77,911,611 tenge.
Increase in the initial value of collateral | Overestimation of the value of seized property | Change in the market value of mortgaged property
The Judicial Board, taking into account the fact that judicial experts have been warned about the responsibility for giving a false conclusion, considers it necessary to be guided by the expert opinion dated 08/22/2019 when determining the initial sale price of the pledged property. By virtue of the above, the decision of the court of first instance is subject to change, in terms of setting the initial sale price of the pledged property at its sale in the amount of KZT 30,316,000, to cancel and in this part to make a new decision on determining the initial sale price of the pledged property at its sale in the amount of KZT 77,911,611. Partially satisfy the appeal. Guided by Articles 423-427 of the CPC, the judicial board DECIDED: The decision of the Bostandyk District Court of Almaty dated April 15, 2019 in this civil case should be changed. Regarding the establishment of the initial sale price of the pledged property at its sale in the amount of KZT 30,316,000, cancel and make a new decision in this part: determine the initial sale price of the pledged property, an apartment building with a total area of 231.9 sq.m., a residential area of 96.1 sq.m., located on a land plot of 0.0826 hectares, located at: Almaty, Auezovsky district, mkr.Kalkaman-2, ul...., 34, with its implementation in the amount of 77,911,611 (seventy-seven million nine hundred eleven thousand six hundred eleven) tenge. Partially satisfy the appeal.
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