On appealing against the actions of a private bailiff and declaring the auction (bidding) invalid
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Specialized Interdistrict Administrative Court Almaty city
Almaty, Karasai Batyr street, 85. 8 (727) 333-10-25 727-7594@sud.kz
The applicant: ......... Firuza Kurbanalievna IIN ....... 050063,
Almaty, Auezovsky district .... house 12 sq. 41 tel.:8 747 ...... ....@gmail.com
The defendants: Private bailiff of the Executive District
Almaty ...... Elmira Hannibalovna 050043,
Almaty, m/n ... 2 house 28g, office 205 tel.: +7 727 - ....; +7 700 -.
JSC "People's Savings Bank of Kazakhstan" 050000,
Almaty, Bostandyk district, Al-Farabi str., 40 BIN 940140000385
Statement of claim
on appealing against the actions of a private bailiff and declaring the auction (bidding) invalid
From a private bailiff ...... Elmira Hannibalovna 02.09.2021, after the auction, I received an SMS message about the sale of my only home and then there was a call from her that I only had one month or two in order for me to vacate the apartment and that's it. They didn't even deign to send me the following documents for review:
Protocol on the results of the electronic auction held on 09/02/2021,
Resolution on the distribution of the collected sums of money dated 09/02/2021,
Resolution approving the amount of payment for the activities of a private bailiff,
Resolution on reimbursement of expenses incurred during the performance of executive actions,
Resolution on lifting the seizure of property dated 09/02/2021
According to SMS messages and calls on 09/02/2021, my property was sold at auction, my only dwelling located at the address: Almaty, m/n Aksai 1A, house 12 sq.41. The winner of the auction and the buyer was JSC Halyk Bank of Kazakhstan, which bought my only dwelling located at: Almaty, Auezovsky district, m/n Aksai 1A, house 12 sq.41 for 25 549 095 tenge. I do not agree with the auction conducted by private bailiff Tulesova Elmira Hannibalovna. I believe that my debtor's rights were grossly violated and the bidding was conducted illegally. Firstly, the collateral assessment report consisted of only one sheet, and I was not provided with a complete detailed report using all the assessment methods currently used, namely comparative, revenue and cost.
On appealing against the actions of a private bailiff and declaring the auction (bidding) invalid
The report consists of only one sheet indicating in the final part of the report the total value of the property in the amount of 25,549,095 tenge. According to Clause 13 of Article 2 of the Law of the Republic of Kazakhstan "On Valuation Activities", the market value is the most likely price at which a given object can be alienated on the basis of a transaction in a competitive environment. At the same time, the actual market price can be determined only if one of the parties to the transaction is not obligated to alienate the valuation object, and the other party is not obligated to acquire, and when there was no coercion to make the transaction with respect to the parties. According to pp.21 p. 2 of the Valuation Standard "Valuation of real estate", approved by the Decree of the Government of the Republic of Kazakhstan No. 124, the comparative approach provides for the following sequence of valuation procedures: 1) collecting and analyzing information on the sale or offer of similar real estate and determining objects in comparison; 2) choosing methods for calculating the value of the object of assessment, taking into account the volume and reliability of available information; 3) comparing the object of assessment with the objects of comparison, followed by adjusting the sale price or the offer price of the objects of comparison; 4) determining the value of the valuation object by taking into account the amount of corrective adjustments to the value of the comparison objects; 5) agreeing on the calculation results obtained. In addition, in accordance with the requirements of the Valuation Standard, the report does not provide a detailed calculation of the value of the object, which is a violation of the requirements of the valuation standard. In connection with the above, I believe that in this case there is a poor-quality and biased assessment. The main principles of evaluation activities are objectivity and reliability, which is not respected during the evaluation. This violation affects my interests as a plaintiff, since the valuation is carried out on the property by right of ownership for the purposes of court bidding.
In accordance with Article 257 of the CPC, upon termination of ownership, property is assessed based on its market value. In this case, I (the plaintiff) believe that a poor-quality and biased assessment affects my interests as a plaintiff, since repayment of the loan debt due to the existing single housing is of primary importance to me as a plaintiff, while using the right to repay the debt in full as collateral. I was also not provided with the Protocol on the auction results dated 09/02/2021. I was just informed of the winner of the auction, namely JSC Halyk Bank of Kazakhstan, Bostandyk district, Al-Farabi St., 40. Whereas according to paragraph 4 of Article 74 of the Law of the Republic of Kazakhstan dated April 02, 2010 "On Enforcement proceedings and the status of Bailiffs" and "Order of the Minister of Justice of the Republic of Kazakhstan dated April 20 February 2015 No. 100 of the Rules for the Sale of seized property, including at auctions in the form of an electronic auction, states: "when announcing an upcoming electronic auction, it contains the following information: Date and time of the electronic auction, lot name, starting price (cost) of the lot; the amount of the guarantee fee for participation in the electronic auction and the details of the bank account of the EET operator, to which the guarantee fee should be transferred. Deadlines for accepting applications; phone number and address of the EET operator, bailiff. Also, in order to register as a participant in an electronic auction, it is necessary to register an electronic application on the EETP web portal in the form signed by the participant's EDS, accompanied by an electronic copy of the payment document confirming the transfer of the guarantee fee by the participant of the electronic auction. The guarantee fee for participation in an electronic auction is set at five percent of the estimated value of the property and is deposited into the bank account of the EET operator. And the guarantee fee is refunded by the EET operator within 24 hours from the date of the conditions for its return. The refund is made to the participant to the bank account specified in the application.
Paragraph No. 6 of the Procedure for Conducting an Electronic Auction states: "An electronic Auction is conducted if there are bids from two or more registered participants." However, the CI only indicates the winner of the auction, it does not even indicate the other bidders. By virtue of article 13 of the Constitution of the Republic of Kazakhstan, everyone has the right to defend their violated or disputed rights, freedoms or legally protected interests. In accordance with art. 9. Everyone has the right, in accordance with the procedure established by this Code, to apply to an administrative body, an official or a court for protection of violated or disputed rights, freedoms or legitimate interests. The waiver of the right to appeal to an administrative body, an official, or a court is invalid. In accordance with Article 15 of the Civil Procedure Code of the Republic of Kazakhstan, the parties choose their position, ways and means of defending it independently and independently of the court, authorities and persons during civil proceedings. According to Article 33 of the Law of the Republic of Kazakhstan "On Mortgage of Immovable Property", the mortgagor, as well as the debtor of the main obligation, has the right to challenge the results of the auction in court within 3 months in case of violation of the procedure for their conduct. Thus, according to Article 74 "On the sale of seized property", the sale of seized property, except for property withdrawn from circulation by law, regardless of the grounds for the arrest and types of property, with the exception of property specified in paragraph 3 of Article 77 of this Law, is carried out by a bailiff at auction in the form of an electronic auction. Auctions in the form of an electronic auction are conducted on a single electronic trading platform, which is selected by the authorized body.
On appealing against the actions of a private bailiff and declaring the auction (bidding) invalid
Clause 4, Article 136 of the CPC stipulates that a claim against the actions (inaction) of the bailiff for the execution of enforcement documents is filed with the court within ten working days from the date of the action (refusal to perform the action) or from the day when the recoverer or debtor, who was not notified of the time and place of the action by the bailiff, became aware of it It is known. I would also like to add that I am eligible for the Mortgage Loan Refinancing Program in accordance with Resolution No. 69 of the National Bank of the Republic of Kazakhstan, which states "In order to implement the instructions of the Head of State, the Government and the National Bank of the Republic of Kazakhstan have adopted a Program for Refinancing residential mortgage loans/mortgage loans. This program assumes that government support will be provided to citizens who received mortgage housing loans / mortgages in the period from 2004 to 2009. in the amount of no more than 36,470,000.00 tenge, to provide the only housing, including for borrowers belonging to socially vulnerable segments of the population. According to Article 68 of the Law of the Republic of Kazakhstan "On Housing Relations", I am Baltabayeva Firuza Kurbanalievna, I belong to socially vulnerable segments of the population, since I lived alone for a long time until 2020, having lost my job, I could not get a job for a long time because of my pre-retirement age. The funds allocated by the State will be used to ease the conditions for servicing residential mortgage loans/mortgages. Since the above Program has already been approved and at the time of the enforcement proceedings, the Bank was obliged to withdraw the enforcement proceedings, especially since I, the plaintiff, requested, declared, collected and submitted documents for participation in the specified Program on 08/26/2021, and applied the procedure of the State Refinancing Program against me. In such circumstances, the Decisions of the Civil Protection Commission on the debtor's pledged property, which exclude the possibility of further movement of the case, were issued in violation of the civil procedure law, which limited the rights of participants in civil proceedings guaranteed by the Constitution of the Republic of Kazakhstan and the CPC of the Republic of Kazakhstan, cannot be recognized as lawful, justified and fair. In accordance with paragraphs 15, art. 616 of the Code of the Republic of Kazakhstan On Taxes and Other Mandatory Payments to the Budget (Tax Code), Applicants are exempt from paying state duty in courts for the actions of bailiffs. Based on the above and in accordance with Articles 132, 133, 134, 135, as well as Articles 131,137,138 of the CPC of the Republic of Kazakhstan, I REQUEST THE COURT:
Resolution from .... .... .... year of the Private bailiff Tulesova E.G. on the transfer of mortgaged property for sale located at: Almaty, Auezovsky district, m/n Aksai 1 A, house 12 sq.41 - cancel;
To recognize the auction dated 09/02/2021 for the sale of the only housing owned by me by gr. Baltabayeva Firuza Kurbanalievna, located at: Almaty, Auezovsky district, m/n Aksai 1A, house 12 sq.41 for 25 549 095 tenge - invalid.
To recognize the actions of a private judicial Private bailiff of the executive district of Almaty Tulesova Elmira Hannibalovna on the transfer of property located at: Almaty, Auezovsky district, m/n Aksai 1A, house 12 sq.41 for sale - illegal;
To assign duties to the private bailiff Tulesova Elmira to eliminate the full extent of violations of the Debtor's rights.
To recover from the Private bailiff Tulesova E.G., the costs of drafting a Statement of Claim for the action of the Civil Protection Act.
Yours sincerely,, ______________/......... F. K./ "___" __________2021 the year.
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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