Objection to the Notary's executive order

 

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Notary Aitzhanov Rakhmet Seitkarimovich

Almaty region, Karasai district, Kaskelen, Batyr's cats , 53, 2

+7-777-111-61-65

ainissa.aitzhan@mail.ru

from: IP "Murat" represented by M.M.H.

IIN: ................

Almaty region, Enbekshikazakh district, g......., ul.........., d.....

+7 ………..

Objection

on the executive inscription No. 4014 dated May 23, 2023

 

On June 13, 2023, I purposely received a copy of the executive inscription registered in the register for No. 4014 dated May 23, 2023. Subsequently, I immediately objected to the executive inscription on the same day. However, you subsequently received a message about the correction of the Objection to the executive order No. 4014 dated May 23, 2023 and the re-filing.

When studying the executive inscription, I found out that you had established the amount owed to the Joint Stock Company "People's Savings Bank of Kazakhstan" (hereinafter referred to as the Recoverer) in the amount of 5,426,571 tenge, and the costs incurred by the recoverer for the execution of the executive inscription in the amount of 56,671 tenge. The total amount to be recovered is 5,483,192 tenge.    

We do not agree with the executive order, for the following reasons:

In accordance with the Law of the Republic of Kazakhstan "On Notaries", I did not receive a pre-trial claim, I did not receive a notification from a notary because I lost the right to object to the amount owed before the Executive Inscription was issued. 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.

Initially, the loan was received from DB Sberbank JSC. As a result of international sanctions measures, sanctions were imposed on Sberbank for everything related to the Russian Federation, where Sberbank could not accept debt repayment payments from us. There was also information on the official Internet resource of Sberbank's website that they were temporarily unable to accept payments for obligations, and this information was confirmed in the media and at the bank's Head Office.

Subsequently, as we learned today, DB Sberbank JSC ceded our loan to Bereke Bank JSC, in turn, the latter ceded the right of claim to Halyk Savings Bank of Kazakhstan Joint Stock Company.

The Law on Banks and Banking Activity states that the Recoverer 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 (name and location the location of the person to whom the right (claim) has been transferred under the loan agreement), the full amount 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 payable.

According to the same Law, when an organization assigns a right (claim) 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 the micro-loan agreement extend to the legal relationship of the borrower with the third party to whom the right (claim) has been assigned.

According to Clause 3, Article 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 paragraphs 6, 7 of 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", it is stipulated 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 term 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.

In accordance with paragraph 2 of Article 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 the default is recognized by the debtor, including in response to a claim sent by to the recoverer in the order of pre-trial settlement of the dispute.  

In my case, the claimant's claim is not indisputable. Also, the debtor did not receive 152 and 279 of the Civil Procedure Code of the Republic of Kazakhstan and Article 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 is not lost and saved.  

According to clause 2. of art. 92-6 of the Law on Notaries, it is stipulated 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.

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 paragraph 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. 4014 dated May 23, 2023 on the recovery of the amount owed by M&A in the person of MMH., in favor of the Joint-Stock Company "People's Savings Bank of Kazakhstan" in the amount of 5,483,192 tenge.

 

Yours sincerely,, __________/ IP "M" represented by M.M.X

                                "____"____________2023 G.

 

 

 

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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