Lawsuits related to the conclusion, amendment, termination of the agreement (transaction) and fulfillment of contractual obligations under the loan agreement

Jurisdiction

If there is an arbitration clause in the bank loan agreement or a written arbitration agreement has been concluded by the parties to the agreement, this circumstance is the basis for the judge to return the statement of claim (subparagraph 7) of the first part of Article 152 of the CPC). If there are no such circumstances and the stated claim is within the jurisdiction of the court, then it is necessary to answer the second question: is it within the jurisdiction of this court. At the stage of acceptance of the statement of claim, the correctness of filing a claim under jurisdiction is determined in accordance with the requirements of Chapter 3 of the CPC. For claims related to a bank loan agreement, attention should be paid to the terms of such agreements, which may establish contractual jurisdiction that changes territorial jurisdiction (Article 32 of the CPC).

Example.

The claimant bank is located in the city of Almaty, its branch servicing the issued loan, and the borrower, a legal entity in debt to the bank, is located in the city of Kokshetau. However, the bank loan agreement states that disputes arising under this agreement are considered by the specialized interdistrict Economic Court of Astana. Since the parties to the bank loan agreement have defined contractual jurisdiction, in this dispute, where only the bank and the borrower are involved, the bank's claim against the borrower, a legal entity, is filed with the specialized interdistrict economic court of Astana. Filing a claim in violation of jurisdiction is an independent basis for the judge to return the statement of claim at the stage of acceptance of the statement of claim (subparagraph 2) of the first part of Article 152 of the CPC).

The reason for the return of the statement of claim, for example, is the plaintiff's failure to comply with the procedure established by law for this category of cases or the pre-trial dispute settlement procedure provided for by the parties' agreement, if the possibility of applying this procedure has not been lost. The cases when the lender (bank) has the right to demand early repayment of the loan item are provided for in Article 321, paragraph 3 of Article 720, paragraph 2 of Article 721, paragraphs 3, 4 of Article 722 of the Civil Code, which indicate the lender's unilateral refusal to execute this agreement (renunciation of the agreement), which follows from paragraph 1 of Article 404 of the Civil Code. By making such a claim, the lender requires the borrower to return the loan item before the deadline for its repayment under the agreement arrives, refuses to provide it to the borrower for the period specified in the agreement, that is, to fulfill this condition. As a general rule, the lender must notify the borrower of the unilateral cancellation of the contract no later than one month in advance, unless otherwise provided by the Civil Code, other legislative acts or an agreement of the parties (paragraph 4 of Article 404 of the Civil Code).

By virtue of paragraph 1 of Article 36 of the Law on Banks, upon the occurrence of a delay in fulfilling an obligation under a bank loan agreement, the bank is obliged to notify the borrower in the manner provided for in the bank loan agreement of the need to make payments under the bank loan agreement and of the consequences of the borrower's failure to fulfill its obligations. In this case, the bank is obliged to notify within the time limits stipulated in this agreement, but no later than thirty business days from the date of the delay in fulfilling the obligation. If the requirements arising from the notification are not satisfied, the bank has the right to apply to the court with a claim for debt collection. The absence in the statement of claim of an indication of the commission of these actions by the bank, not attaching supporting documents to the statement of claim on sending such a notification to the borrower (defendant) in compliance with the deadlines is considered as non-compliance with the pre-trial dispute settlement procedure established by law for this category of cases, and is the basis for returning the statement of claim (paragraphs 15, 23 of the regulatory decree of the Supreme Court "On the judicial practice of considering civil cases on disputes arising from bank loan agreements").

It is necessary to pay attention to the fact that claims related to the fulfillment of obligations under bank loan agreements can be considered not only in lawsuits in the general procedure, but also in simplified (written) proceedings.

As a rule, banks apply for the fulfillment of obligations under bank loan agreements, which ask the borrower to collect the debt on the bank loan. Therefore, at the stage of accepting a statement of claim in court proceedings, the judge must determine in which proceedings it will be considered, and what the ruling is about.

After the application is accepted by the court and the civil case is initiated, the judge prepares the case for trial.

Example.

The bank has filed a lawsuit against the borrower for debt collection. At the stage of preparing the case for trial, the subject and the basis of the claim are being clarified. The legal relations that have arisen between the bank and the borrower are determined, the rights and obligations of the parties to the legal relationship are established, and the essence of their violation is established. Accordingly, the law that the court must apply is determined.

To establish a legal relationship and the law to be applied, it is crucial that the obligations under the bank loan arise from the contract. It is necessary to clarify the powers of the creditor (lender) to conclude the contract, as well as to take into account the specifics and requirements established for bank loan agreements and the entities concluding them (paragraph 2 of Article 727, Article 728 of the Civil Code). According to subparagraph 8) of paragraph 2 of Article 30 of the Law on Banks, the provision of a bank loan refers to banking operations, which means that when concluding a bank loan agreement, the lender must have a license from the National Bank of the Republic of Kazakhstan to conduct bank loan operations. Exceptions are provided for in paragraph 2 of Article 6 of the Law on Banks, subparagraph 29) of Article 8 of the Law on the National Bank, Article 7 of the Law on the Development Bank and other legislative acts of the Republic of Kazakhstan (paragraphs 3, 4 of the regulatory decree of the Supreme Court "On judicial practice of civil cases in disputes arising from bank loan agreements").

Persons involved in the case.

Installed: who is the proper plaintiff, the defendant, whether the participation of co-defendants is possible; is there a need to notify third parties if there is reliable evidence that the rights, freedoms and legitimate interests of these persons may be affected by the claims (part two of Articles 51, 52 of the CPC); are there any persons who can be involved in to participate in the case at their request, at the request of the parties and other persons participating in the case, or at the initiative of the court, if the decision may affect their rights or obligations towards one of the parties on the side of the plaintiff or the defendant.

When considering claims for disputes between banks and borrowers, it is not uncommon for a borrower to take out a loan for consumer purposes for a family. However, when concluding a bank loan agreement, the borrower's spouse does not participate in the agreement. In this case, the spouse is a person whose rights and legitimate interests may be affected by the bank's claims for debt collection.

The legal relations of the parties arise on the basis of a bank loan agreement, and therefore it should be borne in mind that the specifics of the subject matter of the agreement and its legal consequences are regulated by the Civil Code, as well as special banking legislation. In particular, these are the Law on Banks, the Rules for Maintaining Documentation on Lending, and others. The basis of the claim is the factual circumstances that prompt the plaintiff to file a claim.

Based on the principle of competition, the parties and other persons involved in the case must provide the necessary evidence to the court. That is, such information about the facts, in the absence of which it is impossible to draw a correct and reliable conclusion about the circumstances of the case. Evidence is provided by the parties and other persons involved in the case, taking into account the nature of the legal relations between the parties under the bank loan agreement and the substantive law governing the disputed legal relations. Judicial practice on disputes arising from bank loan agreements shows that, as a rule, the main part of the documents on the disputed legal relationship is held by banks. Information about bank customers, their transactions and relationships with banks related to obtaining banking services is classified as a banking secret, the non-disclosure of which is guaranteed by banks. The demand for documents containing information constituting a banking secret (including under bank loan agreements) or copies thereof is made on the basis of a court ruling in accordance with the procedure established by the CPC (Article 50 of the Law on Banks).

When filing a claim for debt collection, the bank must provide the court with evidence of the existence of such debt and what the amount of debt was, justifying the correctness of its calculations.

The Supreme Court, in paragraph 8 of the normative resolution of the Supreme Court "On Judicial Practice of considering civil cases in disputes arising from bank loan Agreements," clarified that in disputes arising from bank loan agreements, courts should carefully check their legality and validity, investigate the correctness of calculations of principal debt, remuneration and penalties. If necessary, the court may involve specialists with special knowledge, both at the stage of preparing the case for trial and during the court session (Article 77 of the CPC).

To correctly determine the range of circumstances relevant to the case, if necessary, the court may examine the documents of the loan dossier, which, as a general rule, opens on the day of signing the loan agreement and closes only at the time of its termination (paragraphs 5, 8 of the Rules for maintaining documentation on lending). According to the documents of the credit dossier, it is established whether the lender has conducted a comprehensive, complete and qualitative assessment of the borrower's creditworthiness (solvency). For example, the borrower has a permanent and sufficient income and other sources to repay the loan, debts on taxes and other mandatory payments to the budget, to third parties.

The collection, investigation, and evaluation of the above evidence makes it possible to resolve the issue of the debtor's (defendant's) liability, and to reduce the share of his liability (amounts charged for penalties, fines, and penalties) if the court finds that the borrower's creditworthiness assessment was not carried out by the lender or was conducted improperly, which affected the non-fulfillment and (or) improper fulfillment by the borrower of obligations under a bank loan agreement (paragraph 1 of Article 364 of the Civil Code). To investigate the arguments of the parties, it is necessary to request from the bank the Rules on Internal Credit Policy approved by the bank's governing body. They determine the conditions for granting bank loans, including those necessary for issuing a bank loan, the criteria for the borrower's solvency, the categories of persons to whom bank loans can be provided, the amount, timing, requirements for securing, monitoring by the lender of loans issued (paragraphs 8, 9, 10, 11 of Article 34 of the Law on Banks).

If a bank submits a claim for debt collection, special attention should be paid to the consideration of the issue related to the transformation, transformation of legal relations between the bank (plaintiff) and the debtor (defendant) from one legal relationship to another. Under a bank loan agreement, the lender undertakes to loan money to the borrower on the terms of payment, urgency, and repayment (paragraph 1 of Article 727 of the Civil Code). That is, by entering into a contractual relationship on a bank loan, the borrower undertakes to pay the lender remuneration for the use of borrowed money, determined in the contract by the established interest rate on the loan amount (fee), within certain time limits (urgency) and to return the borrowed funds also within certain time limits (repayment).

As a rule, under the terms of a bank loan agreement, the loan is repaid by the borrower in installments. This is usually formalized by a schedule for repayment of the loan and remuneration for its use, which is an appendix and an integral part of the bank loan agreement. If the bank makes a claim for debt collection that arose when the borrower violated the deadline set for the repayment of the next part of the loan item or the next payment for the payment of remuneration, then at the stage of preparing the case for trial, it should be clarified whether only the borrower's current debt is being collected, or the bank has demanded early repayment of all remaining parts of the loan object together with the remuneration due on the basis of paragraphs 3, 4 of Article 722 of the Civil Code, and how it justifies this. Clarifying these circumstances of the case, the presence or absence of supporting evidence, helps to correctly determine the legal relations of the parties that have arisen, first under the bank loan agreement, then under the legal relations that arise after the bank notifies the borrower of the early repayment of the loan with the remuneration due for the use of the loan, and then after the court decision. That is, as noted earlier, the transformation, the transformation of one legal relationship into another, is subject to clarification.

The cases in which the lender has the right to demand early repayment of the loan from the borrower are provided not only in paragraphs 3, 4 of Article 722 of the Civil Code, but also in Article 321, paragraph 3 of Article 720, paragraph 2 of Article 721 of the Civil Code. Thus, the law establishes the right of the bank, as a lender, to unilaterally withdraw from the contract (renunciation of the contract), which is consistent with paragraph 1 of Article 404 of the Civil Code and is the termination of the bank loan agreement (paragraph 1 of Article 401 of the Civil Code), which was discussed in detail earlier. The bank's similar right to demand early repayment of the loan item from the borrower is also reflected in the terms of the bank loan agreement.

Upon the occurrence of a delay in the performance of an obligation, the bank, notifying the borrower of the need to make payments and the consequences of the borrower's failure to fulfill its obligations in the manner and within the time limits stipulated in the agreement, but no later than thirty working days from the date of the delay in the performance of the obligation, informs the borrower of the unilateral cancellation of the bank loan agreement (cancellation of the agreement). These circumstances are subject to a thorough investigation by the court, since upon the expiration of the deadline for early repayment of the loan and remuneration, it is possible to conclude that the obligations are terminated, and refusal to fulfill the contract by virtue of paragraph 3 of Article 401 of the Civil Code is regarded as termination of the contract. If the requirements arising from the notification are not satisfied, the bank has the right to sue the borrower for the loan item (the remaining part of it). together with the remuneration due, which is consistent with the provisions of article 36 of the Law on Banks.

When considering this category of cases, the courts need to establish the legality of the lender's claim to the borrower for early repayment of the loan, as well as to clarify compliance with the procedure for sending a notification to the borrower, which must be confirmed by appropriate evidence.

If the court finds that the notification was not sent to the borrower or was sent in violation of the requirements of Article 36 of the Law on Banks, the judge returns the statement of claim, since the plaintiff did not comply with the pre-trial dispute settlement procedure established by law for this category of cases and the possibility of applying this procedure has not been lost (subparagraph 1) of the first part of Article 152 of the CPC). If the claim has been accepted by the court, it is left without consideration (part one of Article 168, subparagraph 1) of Article 279 of the CPC).

If the court determines that there are circumstances regarding the early claim by the bank of the loan object, or the bank's refusal to execute the bank loan agreement, an independent claim for termination of the bank loan agreement is not required, since resolving this issue is the responsibility of the court when considering the case on the merits of the claims.

According to paragraph 4 of Article 403 of the Civil Code, the parties do not have the right to demand the return of what they performed under the obligation prior to the termination of the contract, unless otherwise established by legislative acts or agreement of the parties. Upon termination of a bank loan agreement, in case of cancellation of the agreement, the lender has the right to demand from the debtor the repayment of the loan amount issued to him, as well as the accrued, but not paid by the borrower and the amounts due to the lender for the use of the loan on the day of termination of the agreement, which is legally stipulated in paragraphs 3.4 of Article 722 of the Civil Code.

In addition, clarifications are given on this issue in paragraphs 14.15 of the regulatory decree of the Supreme Court "On certain issues of the invalidity of transactions and the application by courts of the consequences of their invalidity."

At the same time, as a general rule provided for in paragraph 4 of Article 404 of the Civil Code, the day of termination of a bank loan agreement is the day of expiration of the one-month warning period for early repayment of the loan (unilateral cancellation of the agreement), unless otherwise established by the Civil Code, other legislative acts or agreement of the parties.

If the lender applies to the court with a claim and it is satisfied, after the court decision enters into force, the legal relations of the parties arise not from the bank loan agreement, but from a judicial act that established the debtor's obligation to repay the debt.

The subject of the obligation is monetary funds recovered from the debtor on the basis of a judicial act, and accordingly, its execution is carried out within the framework and in accordance with the procedure established by the Law on Enforcement Proceedings.

Since after the court decision enters into force, the legal relations of the parties under the bank loan agreement are terminated, the accrual of remuneration for the use of the loan, the accrual of penalties and fines under the agreement is terminated.

In accordance with the first part of Article 239 of the CPC, the court, at the request of the recoverer, may make an appropriate indexation of the sums of money collected by the court decision, based on the official refinancing rate of the National Bank of the Republic of Kazakhstan on the day of execution of the court decision.

This approach is explained in paragraphs 15, 23 of the regulatory decree of the Supreme Court "On the judicial practice of considering civil cases in disputes arising from Bank Loan Agreements." In some cases, cases in this category may be classified as cases of special complexity that require considerable time to prepare them for trial.    

The list of the main documents attached to the statement of claim

In accordance with the requirements of Article 149 of the CPC, including documents confirming the circumstances on which the plaintiff bases his claims.:

- a copy of the bank loan agreement;

- a reasoned and detailed calculation of the defendant's debt, substantiating the plaintiff's claims for the amount;

- a copy of the pledge agreement, if a pledge has been provided; other documents confirming the existence of a binding relationship between the parties;

- correspondence of the parties , etc.;

- if the claim is based on a violation of the rights of others: information about being married, as well as about children, etc.    

- documents confirming compliance with the pre-trial dispute settlement procedure, if this procedure is established by law or provided for by contract.;

- the plaintiff's request for evidence, if the evidence is in the possession of the defendant or a third party

Laws to be applied in the consideration and resolution of cases

The Constitution.

GK.

GPC.

Laws:

- dated March 30, 1995 No. 2155 "On the National Bank of the Republic of Kazakhstan" (hereinafter – the Law on the National Bank);

- dated December 23, 1995, No. 2723 "On Mortgage of Real Estate" (hereinafter referred to as the Mortgage Law);

- dated August 31, 1995 No. 2444 "On Banks and Banking activities in the Republic of Kazakhstan"

- dated April 25, 2001 No. 178-II "On the Development Bank of Kazakhstan" (hereinafter – the Law on the Development Bank);

- No. 261-IV dated April 2, 2010 "On Enforcement Proceedings and the Status of Bailiffs" (hereinafter referred to as the Law on Enforcement Proceedings);

- dated May 16, 2014 No. 202-V "On Permits and Notifications", dated July 26, 2016 No. 11-VI "On Payments and Payment Systems" (hereinafter referred to as the Law on Payments);

- dated January 14, 2013, No. 67-V "On the State Educational Accumulative System" (hereinafter referred to as the Law on the Educational Accumulative System);

- No. 488-V "On Arbitration" dated April 8, 2016 (hereinafter referred to as the Arbitration Law).

Resolution of the Board of the Agency for Regulation and Supervision of the Financial Market and Financial Organizations dated February 23, 2007 No. 49 "On Approval of the Rules for Maintaining Documentation on Lending" (hereinafter referred to as the Rules for Maintaining Documentation on Lending).

Resolution of the Board of the Agency for Regulation and Supervision of the Financial Market and Financial Organizations dated February 28, 2011 No. 18 "On Determining the List of Mandatory Terms of a Bank Loan Agreement and Making Amendments and Additions to Resolution of the Board of the Agency of the Republic of Kazakhstan for Regulation and Supervision of the Financial Market and Financial Organizations dated February 23, 2007 No. 49 "On Approval of the Rules of Conduct documentation on lending"" (hereinafter referred to as the List).

Regulatory rulings of the Supreme Court:

- dated July 11, 2003, No. 5 "On the court decision";

- dated November 25, 2016 No. 7 "On judicial practice of consideration of civil cases on disputes arising from Bank Loan Agreements".

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