On obtaining a delay in the execution of a court decision in foreclosure on collateral
The fact is that on 15.05.2019, the Turksib District Court of Almaty, composed of the presiding judge Iemberdieva M.M., with the secretary of the court session Urakova N.B., having considered in open court the civil case No. 7519-19-00 on the claim of Bank Center Credit JSC against gr. "S", DECIDED: The claims of Bank JSC The Credit Center" satisfy. To foreclose in court on the mortgaged property belonging to gr. "S", namely, for: an apartment building consisting of two living rooms and a hall, with a land plot with a total area of 0.0912 hectares, a share of 0.0629, located at the address: Almaty, Turksib district, Suyunbaya str. 5 "G"., with the establishment of the initial sale price of the mortgaged property at its sales in the amount of 7,324,000 tenge. To collect from gr. "S", in favor of Bank Center Credit JSC, the court costs of paying the state fee in the amount of 1,263 (one thousand two hundred and sixty-three) tenge.
Disagreeing with the court's decision, we filed an appeal. On January 09, 2020, the Judicial Board for Civil Cases of the Almaty City Court, consisting of: presiding judge Karibaev Zh.Zh., judges Kubashev A.E. Umarov Zh.A., DECIDED: The decision of the Turksib District Court of Almaty dated 05/15/2019 on this civil case should be changed. Regarding the establishment of the initial sale price of the mortgaged property at its sale in the amount of 7,324,000 tenge, cancel and make a new decision in this part: determine the initial sale price of the mortgaged property, an apartment building consisting of two living rooms and a hall, with a land plot with a total area of 0.0912 hectares, a share of 0.0629, located at: Almaty, Turksib district, Suyunbaya str., 5 "G", with its sale in the amount of 14,621,578 tenge. Partially satisfy the appeal. Thus, we motivated our arguments by the fact that hard times had come to the Borrower's family, which entailed a number of undesirable and unpleasant consequences for Borrowers and their families, both financially and morally, which caused an extremely desperate state to pay off their Loan obligations.
Due to the financial difficulties of the Borrower, there have been repeated written and oral requests to the bank to provide any preferential conditions for fulfilling obligations under the Bank Loan Agreement in the hope of resolving the situation peacefully before the court order. In connection with the non-fulfillment of contractual obligations, the bank sued, after which, by the Decision of the Bostandyk District Court of Almaty dated May 25, 2015, the amount of debt in the amount of 8,224,545 tenge was recovered jointly with gr. "S", in favor of Bank Center Credit JSC. The plaintiff also emphasizes that the court's decision is not enforced, which is a violation of the requirements of the legislation of the Republic of Kazakhstan.
And the fact that the debtor's failure to fulfill obligations to the creditor is the basis for the creditor to file claims for foreclosure on the mortgagor's property, regardless of the provisions of the Pledge Agreement. However, the defendant is taking all measures to enforce the court's decision and is fully cooperating with the recoverer and the bailiff. The borrower was paid monthly by 50 000 – 150 000 tenge and has already repaid more than half of the amount due to the execution of the court decision. Collateral real estate is also put up for sale in order to enforce the court decision. The defendant takes all measures for the independent sale of the pledged property.
On obtaining a delay in the execution of a court decision in foreclosure on collateral
The Civil Procedure Code of the Republic of Kazakhstan does not contain a list of grounds for the installment execution of a judicial act, but only establishes a criterion for their determination. - circumstances that make it difficult to execute a judicial act, giving the court the opportunity in each specific case to decide on their existence, taking into account all the circumstances of the case, while respecting the balance of interests of individuals, In accordance with paragraph 23 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated March 31, 2017 No. 1 "On the application by courts of certain Norms of legislation on enforcement proceedings", the debtor's property status as a basis for granting him a deferral or installment payment means that the debtor cannot voluntarily or forcibly fulfill the obligation in full at one time by selling his property. property provided for in Articles 20 and 44 of the Civil Code. According to the Law of the Republic of Kazakhstan. On the mortgage of immovable property (hereinafter referred to as the Law), Provided for in art. 21. The sale of a mortgage in court is carried out in accordance with a court decision on the claim of the mortgagee. In this case, the sale of real estate, which is the subject of a mortgage, is carried out by selling at public auction in accordance with the procedure established by procedural legislation.
At the request of the pledgor, the court, if there are valid reasons, has the right to postpone its sale for up to one year in a decision on foreclosure on mortgaged immovable property in cases where: 1) the mortgagor is a citizen, regardless of which immovable property is mortgaged by him under a mortgage agreement, provided that the pledge is not related to the implementation of entrepreneurial activity by this citizen.; According to Article 40 of the Law of the Republic of Kazakhstan dated April 2, 2010 No. 261-IV "On enforcement proceedings and the status of bailiffs", If there are circumstances that make the execution of enforcement actions difficult or impossible, the recoverer or debtor or bailiff has the right to raise the issue of changing the method before the court that reviewed the case or the court at the place of execution. and the order of execution. The issue of postponement or installment of execution, as well as the indexation of the amounts awarded, is decided by the court at the request of the parties to the enforcement proceedings. In accordance with Part 1 of Article 238 of the Civil Procedure Code of the Republic of Kazakhstan, the Court that reviewed the case and issued a decision has the right, at the request of the persons participating in the case, based on the property status of the parties or other valid reasons, to postpone or delay the execution of the decision, as well as to change the method and procedure for its execution. The court shall consider and resolve the application, petition for postponement, installment plan or change of the method and procedure of execution of the court decision within ten working days from the date of receipt of the application to the court. Based on the above and guided by art.238 of the CPC RK, the court was asked to postpone the execution of the court's decision on foreclosure on mortgaged real estate, an apartment building consisting of two living rooms and a hall, with a land plot with a total area of 0.0912 hectares, a share of 0.0629, located at the address: Almaty,
Turksib district, Suyunbaya str., 5 "G", owned by citizen gr. "S". However, the Court, having considered the application of gr. "S", on the postponement of the execution of the decision of the Turksib District Court of Almaty dated May 15, 2019, the Court determined: To reject the application of gr. "S", on the postponement of the execution of the decision of the Turksib District Court of Almaty dated May 15, 2019. And he motivated his definition below as follows: It follows from the circumstances of the case that the decision of the Turksib District Court of Almaty dated 05/15/2019 foreclosed on the property of gr. "S", in the form of a residential building with a total area of 0.0912 hectares, a share of 0.0629, located at; Almaty, Turksib district, Suyunbaya street 5 "G", with its sale in the amount of 7,324,000 tenge. On January 09, 2020, by the decision of the judicial board for Civil Cases of the Almaty City Court, the specified decision was changed, the initial value of the property was set at 14,621,578 tenge. From the statement of gr. "S", it follows that the defendant is currently attempting to independently sell the collateral.
The debtor's party has not provided supporting evidence that the debtor is taking measures to enforce the judicial act. In such circumstances, the application should be refused. Without agreeing with the court's Ruling, we filed a private complaint, guided by the above arguments, We asked the Appellate instance to cancel the Ruling of the Turksib District Court of Almaty Judge Iemberdieva M.M., dated March 5, 2020; To satisfy the Application for Postponement of execution of the decision on foreclosure on mortgaged immovable property in the form of an apartment building, for sale for 1 year. On June 30, 2020, the Judicial Board for Civil Cases of the Almaty City Court considered in open court in the premises of the Almaty City Court through the IMCS a civil case on the claim of Bank Center Credit JSC against gr. "S", on foreclosure on collateral received on the basis of a private complaint by the defendant against the ruling of the Turksib District Court of Almaty dated March 05, 2020, Decided: To cancel the ruling of the Turksib District Court of Almaty dated March 05, 2020 in this civil case. Gr. "S" application, partially satisfy. To grant a delay in the execution of the decision of the Turksib District Court of Almaty dated May 15, 2019 on the claim of Bank Center Credit JSC against gr. "S" on foreclosure on collateral for a period up to February 18, 2021. Partially satisfy the defendant's private complaint. The ruling of the appellate instance is not subject to appeal and shall enter into force immediately after its issuance.
On obtaining a delay in the execution of a court decision in foreclosure on collateral
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