Obligations under the bank agreement, mortgage of real estate

Disputes related to the conclusion, amendment, and termination of a bank agreement with a mortgage of immovable property (03.12.03.01) were resolved using the Civil Code of the Republic of Kazakhstan, the Law of the Republic of Kazakhstan "On Mortgage of Immovable Property", "On Banks and Banking Activities in the Republic of Kazakhstan", regulating mortgage issues with relevant conclusions and proposals.

Attention was drawn to the definition of uniform approaches in determining the order of repayment of monetary obligations and the problem of compulsory debt collection.

The issues that arose in connection with the amendments made by the Law of the Republic of Kazakhstan dated 10.02.2011 were touched upon. "On amendments and additions to certain legislative acts of the Republic of Kazakhstan on mortgage lending and protection of the rights of consumers of financial services and investors," which prohibits the out-of-court sale of collateral in the presence of a corresponding written refusal by the mortgagor, an individual on a residential mortgage loan from such sale.; to unilaterally change the terms of bank loan agreements, with the exception of specific cases that are defined in the law.

Thus, the concept of mortgage is given in Article 303 of the Civil Code, according to which a mortgage is a type of collateral in which the pledged property remains in the possession and use of the mortgagor or a third party. A similar concept is contained in the Law of the Republic of Kazakhstan "On mortgage of real estate".

The subject of a mortgage may be enterprises, buildings, buildings, structures, apartments in an apartment building, vehicles, space objects, goods in circulation and other property that has not been withdrawn from civil circulation. Mortgages of enterprises, buildings, buildings, structures, apartments in an apartment building, vehicles and space objects are subject to registration with the authorities that register such objects.

In accordance with Article 2 of the Law of the Republic of Kazakhstan "On Mortgage of Immovable Property", the general rules on collateral contained in the Civil Code apply to mortgage of property, unless other rules are established by this Law.

In the event of a conflict between this Law and other legislative acts regarding the regulation of the mortgage of property, the provisions of this Law shall apply. The rules of this Law on mortgages arising by virtue of a contract shall apply accordingly to mortgages arising on the basis of a legislative act. The specifics of the mortgage of land plots and the rights to them may be provided for by land legislation. These features are provided for in Articles 76-80 of the Land Code.

Thus, according to Article 76 of the Land Code, the subject of a pledge may be a land plot owned by the pledgor on the basis of private ownership or land use rights. Article 77 establishes restrictions on the pledge of a land plot and land use rights. By virtue of Article 80, the pledge of a land plot or land use right is subject to state registration in accordance with the procedure established for registration of rights to immovable property. According to art . 6 of the Mortgage Law, a mortgage agreement is concluded in writing, signed by the mortgagor and the mortgagee, as well as by the debtor, if the mortgagor is not a debtor (real surety).

The mortgage agreement is subject to state registration. The right of mortgage arises from the moment of registration of the mortgage agreement. Notarization of the mortgage agreement is carried out at the request of the parties.

According to Article 7 of the Law, the mortgage agreement must specify: the name (name) and place of residence (location) of the pledgor and the pledgee, as well as the debtor, if the pledgor (real surety) is not a debtor under the underlying obligation; the nature of the main obligation, its size and terms of performance; inventory and location of the pledged immovable property; the name of the right by virtue of which the immovable property that is the subject of mortgages owned by the mortgagor (ownership rights, economic management rights, and others); other conditions regarding which, at the request of either party, an agreement must be reached in the mortgage agreement, which are not prohibited by law.

Of the attached judicial acts, the majority of them relate to claims filed by 6 banks against borrowers under loan agreements for non-fulfillment or improper fulfillment of the basic obligation to repay funds on time.

In these cases, the amount of debt and the guilt of the defendants were confirmed by the evidence provided by the plaintiffs, in some cases the defendants essentially acknowledged the claims, therefore, there is no difficulty in considering the claims of banks by collecting the amounts of money presented.

It is necessary to pay attention to the category of cases involving claims by banks and credit organizations against mortgage debtors, as well as housing mortgage loans, filed with the courts demanding early recovery of loan debt, including by foreclosing on mortgaged property.

Banks, using the right granted by law, file lawsuits for early recovery of the full amount of debt or a substantial part of the debt, including the amount of overdue principal debt, overdue interest (remuneration), and penalties (penalties).

According to Article 272 of the Civil Code, the obligation must be fulfilled properly in accordance with the terms of the obligation and the requirements of the law.

In circumstances where the defendant's party does not actually dispute the existence of debt and there has been improper fulfillment of its obligations for a long period of more than 1 year, the conclusions of the court of first instance regarding the recovery of the amount of debt from debtors (principal, remuneration and penalties) are justified, by virtue of the provisions of paragraph 3 of art. 722 of the Civil Code.

At the same time, the courts do not always clarify and investigate the validity of the reasons for the debtor's default on loans issued for long periods, whereas this circumstance is essential in resolving the issue of early recovery of the entire amount of debt.

Banks refer to the fact that the fulfillment of the borrower's obligations is secured by a pledge of immovable property, therefore, these legal relations arising from the pledge are regulated by the norms of the Civil Code, the Law "On Mortgage of Immovable Property" and banking legislation.

According to Clause 2 of Article 299 of the Civil Code, the pledge of enterprises, buildings, structures, apartments, rights to land and other immovable property (mortgage) is regulated by the Law of the Republic of Kazakhstan "On Mortgage of Immovable Property".

The general rules on collateral contained in the Civil Code apply to mortgages in cases where the Mortgage Law does not establish other rules. The Mortgage Law does not provide grounds for foreclosure on mortgaged property, grounds for early fulfillment of obligations secured by collateral, and foreclosure on mortgaged property.

Such grounds for foreclosure on mortgaged property are provided for in paragraph 1 of Article 317 of the Civil Code, according to which foreclosure on mortgaged property may be levied to satisfy the claims of the mortgagee (creditor) 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 the enclosed and studied judicial acts, bank loan agreements are mainly secured by collateral.

Therefore, the relations that arise between the borrower and the lender under a bank loan agreement, the fulfillment of which is secured by a pledge of property, are regulated by the provisions of art. 321 of the Civil Code, which provide for cases where the right of the pledgee to demand early fulfillment of the obligation secured by the pledge and foreclosure on the pledged property, which cannot be considered as additional grounds for early fulfillment of obligations.

According to subitem 3), clause 3 of Article 24 of the Law of the Republic of Kazakhstan "On Mortgage of Immovable Property", the satisfaction of the mortgagee's claims out of court is not allowed in cases where the subject of the mortgage is immovable property in common ownership, and one of its owners does not give written consent to the satisfaction of the mortgagee's claims out of court. In these cases, foreclosure on mortgaged property is applied only by court decision.

According to the court's conclusions, the plaintiff's application to the bank to invalidate a previously submitted application for consent to the sale of an apartment out ofcourt indicates the disagreement of the owner of the share in the apartment with the out-of-court sale. Consequently, foreclosure on the mortgaged property should have been applied only by a court decision.

According to Clause 2 of Article 216 of the Civil Code, when selling a share in the right of shared ownership to an outsider, the remaining participants in the shared ownership have the pre-emptive right to purchase the share being sold at the price for which it is sold, and on other equal terms, except in the case of sale at public auction.

However, the bank has not provided evidence that the plaintiff was notified of the right of first refusal and the auction, which violates her rights as the owner of the share of the apartment.

According to Article 718 of the Civil Code, unless otherwise provided by legislative acts or an agreement, the borrower pays remuneration to the lender for the use of the loan item in the amounts determined by the agreement.

If things are transferred to the borrower under the loan agreement, remuneration is paid if its amount and form (monetary or in kind) are stipulated in the agreement. The procedure and terms of remuneration payment are established by the loan agreement.

If the procedure and terms of payment of remuneration are not established by the contract, then it is paid monthly. If the borrower does not repay the loan item on time, the remuneration is paid for the entire period of use of the loan item.

According to the reviewed claims regarding the collection of penalties, there are facts when the debt for the payment of penalties (penalties) for the violation by the borrower of obligations to repay the principal debt (loan amount), for the payment of remuneration for the use of the loan has been accumulated by the bank for two or more years, the courts generally correctly resolve the issue of collecting penalties, while They take into account the provisions of art. 364 of the Civil Code.

If the non-fulfillment or improper fulfillment of an obligation is due to the fault of both parties, the court reduces the amount of the debtor's liability accordingly.

The court also reduces the amount of the debtor's liability if the creditor intentionally or negligently contributed to an increase in the amount of losses caused by non-performance or improper performance, or did not take reasonable measures to reduce them (paragraph 1 of Article 364 of the Civil Code).

These norms are applied accordingly in cases when the debtor, by virtue of a legislative act or contract, is responsible for non-fulfillment or improper fulfillment of an obligation, regardless of his fault (paragraph 2 of Article 364 of the Civil Code). The circumstances cited by the participants in the process in support of their arguments should be thoroughly investigated during the trial.

If it is established that the penalty to be paid (fine, fine) is excessively large in comparison with the creditor's losses, the court has the right to reduce the penalty, taking into account the degree of fulfillment of the obligation by the debtor and the interests of the debtor and the creditor that deserve attention (art. 297 of the Civil Code).

According to Article 20 of the Law of the Republic of Kazakhstan "On Mortgage of Immovable Property", in case of default by the debtor of the main obligation, the mortgagee has the right to satisfy his claims by:

mortgage sale in court;

the sale of mortgages out of court, if this is provided for by legislative acts, or in a mortgage agreement, or a subsequent agreement of the parties.;

taking possession of the pledged property in case the auction is declared invalid in accordance with art. 32 of this Law

In accordance with Clause 2 of Article 318 of the Civil Code, in cases stipulated by the pledge agreement, as well as this Code and other legislative acts, the pledgee has the right to independently sell the pledged property in a compulsory out-of-court manner by bidding.

The pledgee bank has the same right to sell the collateral securing the money loan. Thus, it follows from the above rule that the mortgagee bank has the right to out-of-court sale (but only through bidding) of the collateral securing the money loan.

At the same time, the right of the pledgee bank does not mean its obligation to sell the collateral securing the monetary loan only out of court.

Along with debt collection, Banks are asked in their claims to foreclose on collateral.

            Regulatory legal acts on the generalized category

The main regulatory legal acts regulating relations in disputes related to the conclusion, amendment, termination of an agreement and the fulfillment of contractual obligations under a banking agreement, including mortgages of real estate are

The Constitution of the Republic of Kazakhstan,

Civil and Civil Procedure Codes (CC, CPC),

Laws of the Republic of Kazakhstan "On mortgage of real estate",

"About banks and banking activities in the Republic of Kazakhstan",

"On the state registration of rights to immovable property",

"On evaluation activities in the Republic of Kazakhstan" and others.

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