Judicial practice in Appealing against the actions of a Private Bailiff in refusing to accept an alternative assessment report
The Ili District Court of the Almaty region has filed a complaint against the action of a Private Bailiff to refuse to accept an alternative assessment report from IP CHKM (hereinafter referred to as the Borrower). Thus, ATFBank JSC (hereinafter referred to as the Bank) and IP CHKM concluded a Bank Loan Agreement No.DMK131-2010/McV dated June 29, 2011 (hereinafter referred to as the Loan Agreement), according to which the Borrower was provided with a loan in the amount of 325,000 US dollars to refinance the loan debt, for a period up to 06/29/2016., with the payment of remuneration in the amount of 17.2% per annum. As a guarantee for the fulfillment of the Borrower's obligations under the Loan Agreement, the bank was provided with two guarantee agreements: 1) Guarantee Agreement no. KSDMK131-2010/mSv/1 dated September 20, 2011, concluded between JSC ATFBank and BKM and Guarantee Agreement no.KSDMK131-2010/mSv/2 dated September 20, 2011, concluded between JSC ATFBank and CHKM-K, Non-residential premises were also provided (cafe/shop) commonly. 774.8 m2,, on a plot of land with an area of 0.0577 ha., located at Almaty region, Ilisky district, pos...... mkr....., ul....., d. ... Due to the violation of the assumed obligations to repay the loan not properly. On January 18, 2017, the International Arbitration Court "IUS", composed of arbitrator Zhusupov Almat Asylbekovich, considered a civil case against ATFBank JSC against the borrower of IP CHKM and the guarantor-1 BKM, the guarantor-2 BKM-To recover the amount of debt under the bank loan agreement and recover the costs of paying arbitration and registration fees, the Court decided –satisfy and collect in solidarity with the Individual entrepreneur "CHKM" and BKM. CCM-K in favor of ATFBank JSC the amount of the outstanding principal debt and a portion of the outstanding remuneration in the amount of USD 345,000.00. also, the costs of paying the arbitration and registration fees incurred in connection with the filing of the claim in the amount of 4,033,840 tenge. In connection with the non-execution of the court decision, Almalinsky District Court No. 2 issued an executive order on the basis of which the Private Bailiff of the Regional Chamber of Private Bailiffs of the Alatinsk region, R.A. Isaev, initiated enforcement proceedings.
Judicial practice in Appealing against the actions of a Private Bailiff in refusing to accept an alternative assessment report
After that, the CSI issued a Resolution on the participation of a specialist in the assessment of the seized property and the execution of this resolution was entrusted to the Evaluation Company Independent Assessment Expert LLP, which conducted an Inspection of the evaluation facility for non-residential premises (cafe/shop) on September 15, 2017. the area. 774.8 m2,, on a plot of land with an area of 0.0577 ha., located at Almaty region, Ilisky district, village. ................... According to report no.NOE-AS-4/2-919/1-17 dated September 15, 2017, the Valuation company "Independent Assessment "Expert" LLP, secured real estate of the debtor located at Almaty region, Ilisky district, village. ..........., it amounted to 90 500 000 tenge, which we received The year is 10.10.2017. With an assessment of Appraisal companies Almaty region, Ilisky district, village ........ we disagree, as the market value of the mortgaged real estate indicated in the report of the Appraisal Companies of Independent Assessment Expert LLP is estimated incorrectly and unreliably, as well as unfairly underestimated, since each house located in this area is individual and requires a detailed approach, and not as According to report No.NOE-AS-4/2-919/1-17 dated 09/15/2017 of the Evaluation Company "Independent Assessment "Expert" LLP. Thus, after examining the provided copy of the collateral assessment report, we came to the following conclusion. According to clause 13. Article 2 of the Law of the Republic of Kazakhstan "On Valuation Activities", the market value is the most probable price at which a given object can be alienated on the basis of a transaction in a competitive environment. In this case, the actual market price can be determined only if one of the parties to the transaction is not obligated to alienate the valuation object, and the other party is not obligated to acquire, and when there was no coercion to make a transaction with respect to the parties to the transaction from anyone. It is established that when an appraiser determines the market value of a property, only the comparative method and cost methods are used, while the revenue method is not used. The report consists of 69 pages provided to us, indicating in the final part of the report the total value of the property in the amount of 90 500 000 tenge.
According to paragraph 21, paragraph 2 of the Valuation Standard "Valuation of real estate", approved by the Decree of the Government of the Republic of Kazakhstan dated February 12, 2013 No. 124, the comparative approach provides for the following sequence of valuation procedures: 1) collecting and analyzing information on the sale or offer of similar real estate and determining the objects of comparison; 2) choosing a method for calculating the value of the object of assessment, taking into account the volume and reliability of the available information; 3) comparison of the object of evaluation with the objects of comparison with subsequent adjustment of the sale price or the offer price of the objects of comparison; 4) determination of the value of the object of evaluation by taking into account the amount of corrective adjustments to the value of the objects of comparison; 5) coordination of the calculation results. At the same time, in the analyzed report, as part of the cost calculation using the comparative approach, there is no justification for the applied adjustments (amendments) with the objects of comparison. In addition, in accordance with the requirements of the Valuation Standard, the report does not provide a detailed calculation of the cost of the object, limiting itself to the data indicated in the calculation table of the report, which is a violation of the requirements of the valuation standard. When deducing the total cost, there is no justification for giving weight coefficients to the results obtained by the comparative method, and the hierarchy analysis method recommended in the methodological literature has not been used. According to paragraph 20 of the Valuation Standard, it is stated that the amount of accumulated depreciation of real estate is equal to the totality of physical, functional and external (economic) depreciation. When deducing the total cost, the appraiser did not specify the percentage of house wear, since when evaluating a property with physical wear, the appraiser must take note of the specified coefficient. In connection with the above, we believe that in this case there is a poor-quality and biased assessment. The main principles of evaluation activities are objectivity and reliability, which is not respected during the evaluation. These violations affect the interests of the plaintiff, since the valuation is carried out on the property by right of ownership for the purposes of court bidding, which implies possible alienation at market prices.
In accordance with Article 257 of the CPC, upon termination of ownership, property is assessed based on its market value. In this case, the Applicant believes that a poor-quality and biased assessment affects the interests of the Applicant, since repayment of the loan debt at the expense of the existing single housing is of primary importance to the plaintiff, while using the right to repay the debt in full at the expense of collateral and purchase small real estate for living. In connection with this, we submitted to the Private Bailiff an alternative report on the valuation of real estate No. 188 dated October 17, 2017, executed by the Assessment Group "Bkyt" LLP, which determined the market value of the collateral in the amount of 151,794,000 tenge, we consider it reliable and fair, the market value indicated in It corresponds to the actual value of the collateral, as an individual approach has been applied in this assessment. However, CHSI did not accept our assessment and asked us to appeal his actions. In this regard, it may be necessary to conduct a state expert examination for a fair, realistic determination of the value of the collateral. In accordance with Parts 1, 2, 5 of art. 82 of the CPC RK: "An expert examination is appointed in cases where circumstances relevant to the case can be established as a result of an examination of its objects conducted by an expert on the basis of special scientific knowledge"; " The presence in the case of acts of audits, inspections, conclusions of departmental inspections, as well as written consultations of specialists, appraisers' reports, does not replace the expert's opinion and does not exclude the possibility of appointing a forensic examination on the same issues"; "Persons involved in the case may ask the court to entrust the examination to a specific person with the necessary special scientific knowledge". Also, by virtue of part 5 of the above article, it was considered possible for the court to accept the Assessment Report No. 188 dated October 17, 2017, carried out by the assessment company Assessment Group Bkyt LLP, as the basis for establishing the market value of collateral real estate located at the address Almaty region, Ilisky district, village. ……………
Judicial practice in Appealing against the actions of a Private Bailiff in refusing to accept an alternative assessment report
And the amount indicated in the Assessment Report of the "Assessment Group"Bakyt" LLP, in the amount of 151,794,000 tenge, which is a more realistic market value, would be fair to take as the current market value for collateral real estate. According to the Civil Procedure Code of the Republic of Kazakhstan, Article 48., the plaintiff has the right to change the basis or subject of the claim, increase or decrease the amount of claims or abandon the claim, the defendant has the right to recognize the claim, the parties can end the case with an amicable agreement or an agreement on the settlement of a dispute (conflict) through mediation or an agreement on the settlement of a dispute through a participatory procedures according to the rules provided for in Articles 169, 170, 171 and Chapter 17 of this Code. Also according to article 169. The plaintiff has the right to change the basis or subject of the claim, to increase or decrease the amount of the claims by submitting a written statement before the end of the preparation of the case for trial or before the removal of the court to the conference room in the absence of the need for additional procedural actions. A change in the basis or subject of a claim, an increase or decrease in the amount of claims may be filed after compliance with the pre-trial dispute settlement procedure, if such procedure is established by law or provided for by a contract. Simultaneous or in any sequence, a change in the subject and the basis of the claim means that the plaintiff submits a new claim and the plaintiff rejects the previously filed claim, which entails the termination of proceedings on the previously filed statement of claim. Simultaneous or in any sequence, a change in the subject matter and the basis of the claim is allowed in the case of an agreement on the settlement of a dispute (conflict) through mediation. Based on the above, guided by Articles 188, 191 of the Civil Code of the Republic of Kazakhstan, art. 8, 26, 29, 87, 148,240, 250 Civil Procedure Code of the Republic of Kazakhstan, art. 6, 13 of the Constitution of the Republic of Kazakhstan, also in accordance with the Law ON valuation activities in the Republic of Kazakhstan, ASKED THE COURT:
To declare illegal the actions of private bailiff Ruslan Kadyrzhanovich Isaev on the adoption of the assessment report no. NOE-AS-4/2-919/1-17 dated September 15, 2017, performed by the Evaluation Company "Independent Assessment "Expert" LLP.
To assign to the private bailiff Isaev Ruslan Kadyrzhanovich the duties of eliminating in full the violations of the rights of the debtor Chancharov Kuanyshpek Mukhamedkarimovich.
The Ili District Court of the Almaty region, with the participation of the applicant's representative, G.T. Sarzhanov, having considered in open court in the courthouse a civil case against the private bailiff of the executive district of the Almaty region, Ruslan Kadyrzhanovich Isaev, on appealing actions under Part 6 of Article 250 of the CPC RK, actions of the bailiff related to the valuation of property, as well as on acceptance or refusal to accept a property valuation report may be appealed in accordance with the procedure established by this article. As follows from the case file, according to the examination conducted on 31.10.2017 by the Republican Chamber of Appraisers, Report no. NOE-AS-4/2- 919/1-17 , performed by Independent Assessment Expert LLP, is reliable. In accordance with Part 4 of Article 250 of the CPC RK, the court refuses to satisfy the complaint if it finds that the complained actions (inaction) were committed in accordance with the law within the powers of the bailiff and the rights, freedoms and legally protected interests of the debtor and the recoverer were not violated. According to art . 72 of the CPC RK, the plaintiff's representative did not provide the court with evidence of a violation of the Law by the bailiff when assigning an assessment and accepting it. In such circumstances, the court considers that the arguments set out in the complaint are unfounded and not legitimate, subject to dismissal, and decided: To dismiss the complaint of the CHKM to the private bailiff of the executive district of the Almaty region, Isaev Ruslan Kadyrzhanovich, about appealing the actions. Disagreeing with the decision of the court of first instance, we filed an appeal and subsequently on February 27, 2018, the Judicial Board for Civil Cases of the Almaty Regional Court considered in open court a civil case on the appeal of the applicant's representative, Ch.K.M.-Sarzhanov G.T., against the decision of the Ili District Court of the Almaty region dated November 21, 2017, where they requested to cancel the court's decision due to its illegality and the lack of evidence of the court's conclusions set out in the judicial act, with a new decision on the satisfaction of the complaint. After listening to the parties, examining the evidence available in the case, and examining the arguments of the appeal, the board comes to the following conclusion. Despite the availability of different reports on the valuation of real estate, the court adopted the lowest valuation amount for real estate, which significantly violates the rights of the debtor, Ch.K.M., since the difference in valuation is more than 60,000,000 tenge. In accordance with the above, the board concludes that the arguments of the appeal must be satisfied.
Judicial practice in Appealing against the actions of a Private Bailiff in refusing to accept an alternative assessment report
The decision of the Ili District Court of the Almaty region dated November 21, 2017 is subject to cancellation, with a new decision on the satisfaction of the complaint and recognition of illegal actions of private bailiff Isaev Ruslan Kadyrzhanovich on the adoption of report No.NOE-AS-4/2-919/1-17 dated September 15, 2017, performed by the Independent Assessment Expert LLP Evaluation Company and on the elimination of violations of the debtor's rights by C.K.M.
#Lawyer #Lawyer #Legal service #Legal advice #Defense Company #Law Firm #Civil #Criminal #Administrative #Arbitration cases disputes #Almaty #Kazakhstan
Attention!
Law and Law Law Law draws your attention to the fact that this document is basic and does not always meet the requirements of a particular situation. Our lawyers are ready to assist you in legal advice, drawing up any legal document suitable for your situation.
For more information, please contact a Lawyer / Attorney by phone: +7 (708) 971-78-58; +7 (700) 978 5755, +7 (700) 978 5085.
Attorney at Law Almaty Lawyer Legal Services Legal Advice Civil Criminal Administrative Cases Disputes Protection Arbitration Law Firm Kazakhstan Law Office Court Cases
