Judicial practice on partial satisfaction of a claim for foreclosure on pledged property

October 06, 2017 Talgarsky District Court of the Almaty region, with the participation of a representative of the plaintiff Yu.Am., acting on the basis of a power of attorney dated 31.01.2017, a representative of the defendant S.O.T., Sarzhanov G.T., acting on the basis of a power of attorney, having considered in open court a civil case against S.O.T., S.A.O., Bank Center Credit JSC, to a third party, the private bailiff Kasymberkebaev A., on foreclosure on collateral, U S T A N O V I L: The plaintiff, JSC Bank Center Credit, filed a lawsuit against the defendants on foreclosure on collateral, motivating their demands by the fact that between Bank CenterCredit JSC and S.O.T., K.R.K., S.O.Zh., S.A.O., K.G.U., a Bank Loan Agreement No. 103/3-09-S-46 dated 05/28/2013 was concluded, according to which a loan was issued to the Borrower and Co-Borrowers in the amount of 15,000,000 tenge for a period of 120 months at 12% per annum. In order to ensure the fulfillment of obligations stipulated in the Loan Agreement, on 28.05.2013, a Pledge Agreement No. 103/3- 07/F-602 was concluded, according to which an apartment building consisting of eight living rooms with a total area of 282.70 sq.m., including residential 173.0 sq.m., with a land plot with a total area of 0.16 ha., located at Almaty region, Talgar district, B... rural district, village of B.., railway station "O.." item No. 54 and Pledge Agreement No. 103/3-07/F-603, according to which an apartment building consisting of eight living rooms with a total area of was provided as collateral 282.70 sq.m., including residential 173.0 sq.m., with a land plot with a total area of 0.16 ha., located at Almaty region, Talgar district, B.. rural district, village B.., railway station "O..." item No. 55. In addition, Bank Center Credit JSC and S.O.T., K.R.K., S.O.Zh., S.A.O., K.G.U. signed a bank loan agreement no. 103/3- 2 09- S-27 dated March 12, 2014, according to which a loan was issued in the amount of 40,000,000 tenge for a period of 12 months at 12% per annum. In order to ensure the fulfillment of obligations stipulated in the loan agreement, pledge agreements were concluded: on March 12, 2014, pledge agreement No. 103/3-07/F- 328, under which an apartment building consisting of eight living rooms with a total area of 282.70 sq.m., including residential 173 sq.m., was provided as collateral. a plot of land with a total area of 0.16 hectares, located at the address: Almaty region, Talgar district, B... rural district, village B..., railway station "O...", p. No. 54; On March 12, 2014, a pledge agreement under which, as collateral No. 103/3-07/F-..., an apartment building consisting of eight living rooms with a total area of 282.70 sq.m., including residential 173 sq.m., with a land plot with a total area of 0.16 hectares, located at the address: Almaty region, Talgar district, B... rural district, village of B..., railway station "O...", village No. 55. By the decision of the Medeu District Court of Almaty dated 05/18/2016. in the civil case No. 2-2892/2016, on the claim of Bank Center Credit JSC against S.O.T., K.R.K., S.O.Zh., S.A.O., K.G.U., for the recovery of the amount of debt, the amount of debt under the bank loan agreement No. 103/3-09-S was recovered from them in solidarity.-46 in the amount of 15,149,669 tenge, the amount of state duty paid in the amount of 454,490 tenge, the amount of debt under the bank loan agreement No. 103/3-09-S-27 in the amount of 41,885,863 tenge 33 tiyn, the amount of state duty paid in the amount of 1,256,576 tenge.

Judicial practice on partial satisfaction of a claim for foreclosure on pledged property

The writ of execution issued on the basis of this court decision is being executed by a private bailiff of the regional chamber of private bailiffs of the Almaty region, A.T. Kasymberkebayev, who, when taking measures for enforcement, checked the property status of debtors, while it was established that there are no equivalent movable assets in second-tier banks that satisfy the claimant's requirements.. According to the assessment report No. 02-011 dated January 13, 2017, the cost of an apartment building consisting of eight living rooms with a total area of 282.70 sq.m., including residential 173.0 sq.m., with a land plot with a total area of 0.16 ha., located at Almaty region, Talgar district, B. rural district, S. B., railway "O." item No. 54 is 61,648,000 tenge. According to the assessment report No. 02-010 dated 01/13/2017, the cost of an apartment building consisting of eight living rooms with a total area of 282.70 sq.m., including residential 173.0 sq.m., with a land plot with a total area of 0.16 ha., located at Almaty region, Talgar district, B. rural district, S. B., railway "O." item No. 55 is 59,524,000 tenge. In connection with the impossibility of executing the decision of the Medeu District Court Almaty dated 05/18/2016, due to the lack of funds, movable or immovable property that allows the execution of the above-mentioned court decision, requests foreclosure on the mortgaged property: an apartment building consisting of eight living rooms with a total area of 282.70 sq.m., including residential 173.0 sq.m., with a land plot with a total area of 0.16 ha., located at address: Almaty region, Talgar district, Besagash rural district, village of B.., railway station "O.." P. No. 54 and an apartment building consisting of eight living rooms, with a total area of 282.70 sq.m., including residential 173.0 sq.m., with a land plot with a total area of 0.16 ha., located at Almaty region, Talgar district, B... rural district, village. B.., railway station "O.." P. No. 55. The plaintiff's representative Yu A.M. at the court hearing, having supported the claims on the grounds set out in the statement of claim, asked the court to satisfy them, pointing out that the two amounts paid by the defendant after the court's decision were not enough to repay the debt. He also pointed out that the Bank, at the request of the defendant S.O.T., had prepared an agreement on the settlement of the dispute through mediation, which was signed by an authorized person, but the defendants subsequently refused to sign it, without giving any reason for their refusal. The representative of the defendant, S.O.T., on the basis of a power of attorney, Sarzhanov G.T., did not agree with the claim at the hearing, explained that the defendants had paid an amount of 2,700,000 tenge after the court's decision to collect the debt, and his principal did not refuse to pay the debt, however, due to the circumstances, they could not fully repay the debt. Maybe. The pledged property at the address: Almaty region, Talgar district, B.rural district, S. B., railway station "O." No. 54 is put up for sale, after which all debts to the bank will be repaid.

Judicial practice on partial satisfaction of a claim for foreclosure on pledged property

 In addition, by the decision of the Karasai District Court of the Almaty region dated 11.04.2017 in a civil case on the complaint of S.O.T., to the private bailiff K.A.T., Index Company LLP on invalidation of assessment reports, assessment report No. 02-011 dated 13.01.2017 of an apartment building consisting of eight living rooms with a total area of 282.70 sq.m., including residential 173.0 sq.m., with a land plot with a total area of 0.16 ha., located at: Almaty region, Talgar district, B. rural district, S. B., railway station "O." P. No. 54 was declared invalid, and based on the above, he requested that the claim be dismissed. The defendant, S.A.O., did not appear at the court session, did not inform the court of the reason for his non-appearance, although he was duly notified, and therefore the court considers it possible to consider the case without his participation. A third person, private bailiff Kasymberkebaev A., did not appear at the court hearing, did not inform the court of the reason for his non-appearance, although he was duly notified, provided the materials of the enforcement proceedings, and therefore, the court considers it possible to consider the case without his participation. Having examined the materials of the civil case and the enforcement proceedings, and having heard the explanations of the parties, the court comes to the following conclusion. According to paragraph 1 of Article 225 of this Code, 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. In accordance with art . 72 of the Civil Procedure Code of the Republic of Kazakhstan, (hereinafter referred to as the Civil Procedure Code) each party must prove the circumstances to which it refers as the grounds for its claims and objections. In accordance with Part 2 of Article 21 of the Civil Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the CPC RK), judicial acts that have entered into force, as well as orders, demands, orders, summonses, requests and other appeals from courts and judges in the administration of justice are mandatory for all state bodies, local governments, legal entities, officials. citizens and are subject to execution throughout the territory of the Republic of Kazakhstan. At the hearing, the court found that the decision of the Medeu District Court, which had entered into force, Almaty No. 2- 2892/2016 dated 05/18/2016 collected from S.O.T., K.R.K., S.O.Zh., S.A.O., K.G.U., in favor of JSC Bank Center Credit the amount of debt under the bank loan agreement No. 103/3-09-S-46 in solidarity in the amount of 15 149 669 tenge 15 tiyn, the amount of state duty paid in the amount of 454,490 tenge, the amount of debt under the bank loan agreement No. 103/3-09-S-27 in solidarity in the amount of 41,885,863 tenge, the amount of state duty paid in the amount of 1,256,576 tenge. As security for the fulfillment of obligations on 28.05.2013, a Pledge Agreement No. 103/3-07/F-602 was concluded, according to which an apartment building consisting of eight living rooms with a total area of 282.70 sq.m., including residential 173.0 sq.m., with a land plot of 0.16 hectares was provided as collateral., located at Almaty region, Talgar district, B. rural district, S. B., railway station "O." P. No. 54 and Pledge Agreement No. 103/3-07/F-603, according to which an apartment building consisting of eight living rooms with a total area of 282.70 sq.m., including residential 173.0 sq.m., with a land plot of 0.16 hectares, located at Talgarsky, Almaty region, was provided as collateral. district, B. rural district, S. B., railway station "O." P. No. 55, as well as on March 12, 2014, the re-mortgage agreement No. 103/3-07/F- 328, under which an apartment building consisting of eight living rooms with a total area of 282.70 sq.m., including residential 173 sq.m., with a land plot with a total area of 0.16 hectares, located at the address: Almaty region, Talgar district, B. rural district, S.B., railway station "O.", P.  No. 54 and the re-pledge agreement No. 103/3- 07/F-329, according to which an apartment building consisting of eight living rooms with a total area of 282.70 sq.m., including a residential 173 sq.m., with a land plot with a total area of 0.16 hectares, located at the address: Almaty region, Talgarsky district, B. rural district, S.B., railway station "O.", item No. 55 In accordance with Part 1, paragraph 1 of art. 299 of the Civil Code of the Republic of Kazakhstan, 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. Also, in accordance with paragraph 1 of Article 317 of the Civil Code, foreclosure on mortgaged property in order to satisfy the claims of the pledgee (creditor) may be levied in the event of non-fulfillment or improper fulfillment by the debtor of the obligation secured by the pledge for which he is responsible. According to clause 1 of Article 302 of the Civil Code, unless otherwise provided by the contract or legislative acts, the pledge secures the claim to the extent it has at the time of actual satisfaction, including remuneration (interest), compensation for losses caused by late performance, penalty (fine, fine), necessary costs for the maintenance of 3 mortgaged property, as well as reimbursement of recovery costs. By virtue of the requirements of paragraph 1 of Article 318 of the Civil Code, the satisfaction of the mortgagee's claim from the value of the pledged property is carried out, unless otherwise established by this Code and other legislative acts or a contract, in court.

Judicial practice on partial satisfaction of a claim for foreclosure on pledged property

According to Article 20 of the Law of the Republic of Kazakhstan "On Mortgage of Immovable Property", foreclosure on mortgaged property in order to satisfy the claims of the mortgagee may be levied in case the debtor fails to fulfill the obligation secured by the mortgage for which he is responsible. The plaintiff's claims for foreclosure on the pledged property do not contradict the provisions of Articles 317, 318 of the Civil Code, and are also consistent with the provisions of Article 21 of the Law of the Republic of Kazakhstan "On Mortgage of Immovable Property", which provides for the right of the mortgagee to satisfy the claim from the value of the pledged property. The pledge agreements are currently not disputed by anyone, they have legal force. According to the assessment report No. 02-010 dated January 13, 2017, the cost of an apartment building consisting of eight living rooms with a total area of 282.70 sq.m., including a residential 173.0 sq.m., with a land plot with a total area of 0.16 ha., located at: Almaty region, Talgar district, B.. rural district, S. B.., Railway station "O.." item No. 55 is 59,524,000 tenge. According to the assessment report No. 02-011 dated 13.01.2017. the cost of an apartment building consisting of eight living rooms, with a total area of 282.70 sq.m., including residential 173.0 sq.m., with a land plot with a total area of 0.16 ha., located at Almaty region, Talgar district, B... rural district, village B..., railway station "O..." item No. 54 It amounts to 61,648,000 tenge. By the decision of the Karasai District Court of the Almaty region of 04/11/2017, which entered into force, the complaint of S.O.T. to the private bailiff Kasymberkebaev A.T., Index Company LLP on invalidation of the assessment reports was partially satisfied and the actions of the private bailiff Kasymberkebaev A.T., according to the property assessment, were recognized as illegal. Also, the assessment report No. 02-011 dated 01/13/2017 of the real estate object located at the address: Talgar district, S. B., railway station "O." P. No. 54, owned by S.O.T. on the right of private ownership, the rest of the claim was denied. Consequently, the claims of Bank CenterCredit JSC regarding foreclosure on collateral for real estate in Talgar district, Besagash village, railway station No. 54, are subject to rejection, since the assessment report referred to by the bank has been declared invalid. According to art . 20 of the Law of the Republic of Kazakhstan "On Mortgage of immovable Property" in case of non-fulfillment by the debtor of the main obligation, the mortgagee has the right to satisfy his claims by selling the mortgage in court, selling the mortgage out of court, if this is provided for by legislative acts, or in a mortgage agreement, or a subsequent agreement of the parties, taking ownership of the mortgaged property in case the auction is declared invalid. Paragraph 1 of Article 57 of the Law of the Republic of Kazakhstan "On Enforcement Proceedings and the Status of Bailiffs" stipulates that foreclosure may be levied on mortgaged property if the debtor's other property is insufficient to fully satisfy all claims against it that are not secured by collateral, in compliance with the rights of the mortgagee established by the civil legislation of the Republic of Kazakhstan. It can be seen from the enforcement proceedings that the debtors do not properly execute the court's decision to recover the amount in favor of the bank, there are no funds to repay the debt, and there are no other movable and immovable property, and therefore the plaintiff's claims for foreclosure on the pledged property located at the address Almaty region, Talgar district, Besagash rural district, Besagash village, Railway station No. 55, owned by S.A.O., with an initial selling value of 59,524,000 tenge, is subject to satisfaction. In accordance with Part 1 of Article 109 of the Civil Procedure Code of the Republic of Kazakhstan, the court awards to the party in whose favor the decision was made, on the other hand, all court costs incurred in the case. 223-226, Civil Procedure Code of the Republic of Kazakhstan, Resolution: Partially satisfy the claim of Bank CenterCredit Joint Stock Company against S.O.T., CAO, and a third party, private bailiff A. Kasymberkebaev, on foreclosure of collateral. Foreclose on mortgaged property in the form of an apartment building consisting of eight living rooms, with a total area of 282.70 sq.m., including residential 173.0 sq.m., with a land plot with a total area of 0.16 ha., located at: Almaty region, Talgar district, B. rural district, S. B., railway station "O." item No. 55, owned by S.A.O., with an initial selling value of 59,524,000 (fifty-nine million five hundred and twenty-four thousand) tenge, due to the payment of arrears under the decision of the Medeu District Court of Almaty No. 2-2892/2016 dated 05/18/2016. in the amount of 57,035,532 tenge, the state duty is 1,711,066 tenge. To collect from the CAO in favor of the Joint-Stock Company "Bank CenterCredit" the costs of paying the state fee in the amount of 1,135 (one thousand one hundred and thirty-five) tenge.

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