On declaring illegal the decision to complete the out-of-court bankruptcy procedure and declaring him bankrupt

No. 6001-24-00-6ap/1633 (2) dated January 28, 2025

Plaintiff: JSC "Bank" (hereinafter – the Bank).

Respondent: Russian State Institution "State Revenue Administration" (hereinafter referred to as the Department).

The subject of the dispute is the recognition of the decision of October 30, 2023 on the completion of the out-of-court bankruptcy procedure against J. and declaring him bankrupt.

Review of the defendant's cassation complaint PLOT:

On November 16, 2011, the Bank and Zh. signed a General Loan Agreement in the amount of 1,351,600 tenge for a period up to

November 15, 2021, for tuition fees. Based on the agreement, six bank loan agreements were concluded for a total amount of 1,008,700 tenge.

The borrower has stopped fulfilling its loan obligations since December 2016. Arrears under six contracts amount to 2,184,451.65

tenge. On April 29, 2023, borrower Zh. applied for an out-of-court bankruptcy procedure, which was initiated on May 25, 2023.

On May 29, 2023, the bank asked the defendant to terminate the procedure, but this was refused.

On October 30, 2023, a decision was made to complete the procedure and declare J. bankrupt (hereinafter referred to as the decision).

On November 21, 2023, the Bank filed a lawsuit with the court, believing that the opportunity for compulsory debt collection had not been exhausted.

Judicial acts:

1st instance: the claim is satisfied. The decision No. 101000004821051 of October 30, 2023 on the completion of the out-of-court bankruptcy procedure and declaring J. bankrupt was declared illegal and canceled.

Appeal: the decision of the court of first instance remains unchanged.

Cassation: Judicial acts in this case have been annulled. A new decision was made to dismiss the Bank's claim for declaring illegal the decision of October 30, 2023 on the completion of the out-of-court bankruptcy procedure against J. and declaring him bankrupt.

Conclusions: the local courts granted the claim, considering it justified, since J. violated the law.

According to article 18 of the Law of the Republic of Kazakhstan "On Credit Bureaus and the formation of credit histories in the Republic of Kazakhstan", information providers are banks and organizations engaged in banking operations.

The Law of the Republic of Kazakhstan "On the restoration of Solvency and Bankruptcy of citizens of the Republic of Kazakhstan" (hereinafter referred to as the Law) regulates public relations arising from the insolvency of a citizen of the Republic of Kazakhstan, establishes the grounds for the application of the procedure for restoring solvency, as well as procedures for out-of-court and judicial bankruptcy, the procedure and conditions for their conduct.

In accordance with the provisions of paragraph 1 of Article 5 of the Law, the grounds for filing an application for out-of-court bankruptcy with the authorized body are the existence of obligations not exceeding 1,600 times the monthly calculation index established by the law on the republican budget and effective on the date of filing the application, as well as compliance with the following conditions:

lack of ownership of property, including property in common ownership;

There is no repayment for obligations to creditors specified in the application within twelve consecutive months as of the date of filing such an application.;

The creditor and the debtor have carried out procedures for the settlement and (or) recovery of outstanding obligations under the bank loan agreement and (or) the loan agreement.

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