Objection to an executive inscription under a Pawn Loan Agreement
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Notary Bitimbayeva Dinara Kabioldakyzy
Almaty city, Tole bi 82A +7 701 905 50 18, +7 (727) 272-24-63
dbitimbaveva@notarvbitinibaveva.kz
from: N.G.A. IIN ......... Alaty, Turksib district,
mkr ...., ul. X... 11a. 8 702 ........
Objection
on the executive inscription No. 61532 dated April 28, 2022
On August 05, 2022, from a Private bailiff in Almaty, Galymzhan Zholdasbekuly Aitkozhaev, I received a Resolution on the initiation of enforcement proceedings for No.307/22-75-3816 dated 06/13/2022 and Executive Order No. 61532, which was issued by you on April 28, 2022. When studying the executive inscription, I found out that you had established the amount owed to the Limited Liability Partnership "Collection Agency Republican Bureau of Financial Control" (hereinafter referred to as the Recoverer) in the amount of 80,000 tenge, and the costs incurred by the recoverer for executing the executive inscription in the amount of 5,095 tenge. The total amount to be recovered is 85,095 tenge. We do not agree with the executive inscription for the following reasons: In accordance with the Law of the Republic of Kazakhstan "On Notaries", I have not received a pre-trial claim, I have not received a copy of the executive inscription from the notary. This violated the requirements of Articles 92-6 of the Law, since according to paragraph 1 of Article 92-6 of the Law, after making an executive inscription, the notary sends a copy of it to the debtor with a notification of delivery no later than the next business day. And in turn, the Debtor has the right, within ten working days from the date of receipt of a copy of the executive inscription, to send objections to the stated claim in writing with notification to the notary who executed the executive inscription. The law states that the Collection Agency Republican Bureau of Financial Control LLP was obliged to notify the Borrower of the transfer of the right (claim) to a third party via SMS notifications and/or emails within thirty calendar days from the date of conclusion of the assignment agreement, indicating the purpose of further payments to repay the loan to a third party (the name and location of the person to whom the right (claim) has been transferred under the loan agreement), the full scope of the transferred rights (claims), as well as the remaining overdue and current amounts of the principal debt, remuneration, commissions, penalties (fines, penalties) and other amounts to be paid.
Objection to an executive inscription under a Pawn Loan Agreement
According to paragraphs 4-1, art. 4 of the Law of the Republic of Kazakhstan "On Microfinance Activities", where, when a microfinance organization assigns rights (claims) under a micro-loan agreement to a third party, the requirements and restrictions imposed by the legislation of the Republic of Kazakhstan on the relationship between the lender and the borrower under a micro-loan agreement extend to the legal relationship of the borrower with a third party, to whom the right (claim) has been assigned. According to paragraph 3, art. 725-1 of the Civil Code of the Republic of Kazakhstan, which stipulates that the rules for calculating the annual effective interest rate under a loan agreement are determined by a regulatory legal act of the authorized body for regulation, control and supervision of the financial market and financial organizations. According to clause 6, clause Resolution No. 197 of the Board of the National Bank of the Republic of Kazakhstan dated August 27, 2018 "On Approval of the Rules for Calculating the Annual Effective Interest Rate under the Loan Agreement" stipulates that the calculation of the annual effective interest rate under the loan agreement includes all payments of the borrower on the principal debt and remuneration, as well as commissions and other payments for the entire period of the loan agreement. The calculation of the annual effective interest rate under the loan agreement does not include a penalty (fine, penalty fee) for violating the obligation to repay the loan amount and (or) pay remuneration under the loan agreement. According to paragraph 2, art. 725-1 of the Civil Code of the Republic of Kazakhstan, where a loan agreement concluded with an individual borrower that does not comply with the requirements of paragraph 1 of this Article is void. Under this loan agreement, I received 30,000 tenge in my hands, of which 18,000 tenge was paid in arrears, whereas in accordance with the provisions of art. 725-1, paragraph 1, paragraph 5 of the Civil Code of the Republic of Kazakhstan, the annual effective interest rate under the loan agreement may not exceed one hundred percent, including in the event of a change in the repayment period of the loan. In accordance with paragraph 2 of art. 92-1 of the Law of the Republic of Kazakhstan "On Notaries" (hereinafter referred to as the Law), on the basis of an executive inscription or a corresponding resolution, debt is collected for the following indisputable requirements for the performance of an obligation based on a written transaction, the due date of which has come and non–fulfillment of the obligation is recognized by the debtor, including in response to a claim sent to the recoverer in the pre-trial settlement of the dispute. In my case, the claimant's claim is not indisputable. Also, the debtor did not receive Pre-trial claim in accordance with the norms of Articles 152 and 279 of the CPC RK and art. 402 of the Civil Code of the Republic of Kazakhstan, providing that the judge returns the statement of claim, and the court leaves the statement of claim without consideration if the plaintiff has not complied with the pre-trial procedure established by law for this category of cases, the mandatory procedure for preliminary pre-trial dispute resolution and the possibility of this procedure has not been lost and preserved. According to clause 2. art. 92-6 of the Law on Notaries stipulates that the Debtor has the right, within ten working days from the date of receipt of a copy of the executive inscription or the relevant resolution, to send objections to the stated claim in writing with notification to the notary who executed the executive inscription or issued the relevant resolution. By virtue of clause 1 of Article 382 of the Civil Code of the Republic of Kazakhstan, the terms of the contract are determined at the discretion of the parties, except in cases where the content of the relevant condition is prescribed by law. According to clause 1 of Article 383 of the Civil Code of the Republic of Kazakhstan, the contract must comply with the rules binding on the parties, established by law (mandatory norms) in force at the time of its conclusion.
Objection to an executive inscription under a Pawn Loan Agreement
By virtue of clause 1 of Article 159 of the Civil Code, a transaction made without obtaining the necessary permission is void. From clauses 2 and 3 of Article 157-1 of the Civil Code, it follows that an invalid transaction does not entail legal consequences, except for those related to its invalidity. Due to the failure of the Recoverer to fulfill the obligations stipulated by law, we have the opinion that the actions of the Recoverer are aimed at seizing property by deceiving and abusing the Applicant's trust. In accordance with clauses 2 of Articles 92-6 of the Law, the debtor has the right, within ten working days from the date of receipt of a copy of the executive inscription or the relevant resolution, to send objections to the stated claim in writing with notification to the notary who executed the executive inscription or issued the relevant resolution. According to paragraph 3 of Articles 92-6 of the Law, the debtor's objection must contain the reasons for disagreement with the stated claim. In accordance with paragraph 1 of Articles 92-8 of the Law, the notary issues a resolution on the cancellation of the executive inscription no later than three working days from the date of receipt of the objection. Copies of the resolution on the cancellation of the executive inscription are sent to the recoverer and the debtor no later than the next business day after its issuance. Based on the above, in accordance with paragraph 2 of Articles 92-6 of the Law of the Republic of Kazakhstan "On Notaries",
ask you:
To cancel the executive order No. 61532 dated April 28, 2022 on the recovery of the amount of debt from N.G.A., in favor of the Collection Agency Republican Bureau of Financial Control LLP in the amount of 85 095 tenge.
Yours sincerely,, ___________/ N.G.A.
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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.
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