On the obligation to cancel the record of registration of the pledge agreement
No. 6001-23-00-6ap/1189 (2) dated 17.10.2023
Plaintiff: K.N.
Defendant: NAO "GC "Government for Citizens"
The subject of the dispute: the obligation to cancel the record of registration of the pledge agreement
Review of the plaintiff's cassation complaint PLOT:
K.N. owns real estate located at the address: city of A., microdistrict "C", building 1, apartment 2. Due to the need, in one of the Public Service Centers, the plaintiff received a certificate of registered rights (encumbrances) on real estate and its technical characteristics.
In the section "2) the encumbrance of the right is registered", the authorized body provided information to the effect that the type of encumbrance applied to the applicant's apartment on August 20, 1998 was as follows
"the pledge." In the column "Copyright holder or authorized body (interested person)" it is stated: "S.E.". In the column "The basis of the encumbrance" it is stated: "Pledge agreement 1/0-001748 dated 08/13/1998". The plaintiff does not deny that the specified pledge agreement took place. The contract stipulated that the real estate was mortgaged in favor of S.E., in order to ensure timely payment of the amount of money provided to the plaintiff in the form of a loan. The loan was repaid by the plaintiff before the deadline set by the contract, until October 13, 1998. S.E. had no claims against the plaintiff. If there had been any, then during the limitation period, before October 13, 2001, Mr. S.E. would have used his right, granted to him by civil law in court, to satisfy material claims.
The plaintiff regretfully states the fact that has become known to her: S.E. died in early 2021.
In connection with this circumstance, on July 5, 2022, the plaintiff appealed to the management of the Department of Registration Service and Organization of Legal Services of the Ministry of Justice and to the management of the Government for Citizens State Corporation (No. ZHT-2022-01990566) with a request to delve into the essence of the problem that has existed for 24 years and identify ways to solve it. In turn, the heads of the listed government agencies redirected the plaintiff's appeal to the Branch of the NGO "Government for Citizens State Corporation" for substantive resolution.
In his response to the appeal, the defendant recommended that the plaintiff, together with S.E., submit a notarized statement of mutual settlement with the pledgor. However, due to the death of S.E., the plaintiff does not have the opportunity to implement this action. The authorized body, in turn, has at its disposal all the necessary information in order to solve the problem described by the plaintiff. First of all, this is information about the fact of Mr. S.E.'s death. The authorized body has information about the existence of a pledge agreement 1/0-001748 dated August 13, 1998. Consequently, the information base contains information that the obligation under the specified agreement must be fulfilled before October 13, 1998.
The authorized body, by virtue of its capabilities, must have information on the subject of that, i.e., during the limitation period from 13
From October 1998 to October 13, 2001, no claim was initiated against the plaintiff, containing any material claims.
In connection with these facts, the plaintiff believes that, at the time of filing this claim, the presence in the database of the authorized body of information about encumbrances on the apartment belonging to the plaintiff is not a justified action.
The plaintiff cannot be satisfied with the defendant's similar position. In this regard, he believes that there is a need to adjust the data of the respondent's information base. In turn, the authorized body indicated that, in case of disagreement with the answer, the applicant was given the right to appeal it in court.
In addition, the defendant, referring to paragraph 1 of Article 33 of the Law of July 26, 2007 (with amendments and additions as of July 1, 2021)
No. 310-III "On State Registration of Rights to Immovable Property", states that the cancellation of entries in the registration sheet of the legal cadastre is carried out by the registering authority on the basis of court acts that have entered into force.
The plaintiff has no other opportunity to make adjustments to the defendant's information base on the removal of encumbrances from the plaintiff's apartment.
On August 12, 2022, the plaintiff found a letter addressed by the defendant in her mailbox at her place of residence. It was on this day that the plaintiff became aware of the contents of the letter about the defendant's actions on the appeal dated July 5, 2022.
Judicial acts:
1st instance: the claim was denied.
Appeal: the decision of the court of first instance remains unchanged.
Cassation: judicial acts are upheld.
Conclusions: paragraph 1 of Article 322 of the Civil Code stipulates that the pledge is terminated: 1) upon termination of the obligation secured by the pledge; 2) at the request of the pledgor, if there are grounds provided for in paragraph 3 of Article 312 of this Code; 3) in the event of the death of the pledged thing or termination of the pledged right, if the pledgor has not exercised the right provided for in paragraph 2 of Article 314 of this Code; 4) in the case of sale at public auction of the pledged property, as well as in the case when its realization proved impossible (Article 319 of this Code).
By virtue of subparagraph 7) of paragraph 1 of Article 25 of the Law "On State Registration of Rights to Immovable Property" (hereinafter referred to as the Law), refusal to accept documents submitted for state registration is allowed, inter alia, on the grounds of encumbrances that exclude state registration of rights (encumbrances of rights).
According to paragraph 6 of Article 48 of the Law, the record of the state registration of the pledge is cancelled.: 1) upon termination of the pledge on the basis of an application by the pledgee in connection with the fulfillment of the main obligation; 2) upon foreclosure on the pledged item in accordance with the procedure provided for by legislative acts of the Republic of Kazakhstan; 3) upon termination of the pledge in connection with the termination of the pledge agreement; 4) upon termination of the pledge for other reasons
on the grounds provided for in Article 322 of the Civil Code.
The court of first instance, guided by the above-mentioned norms of the Law, reasonably refused to satisfy K.N.'s claim, since it was reliably established that the plaintiff had not provided written evidence attesting to the fulfillment of the terms of the pledge agreement dated August 13, 2008, concluded between the plaintiff and citizen S.E.
At the same time, by virtue of the current legislation, the grounds confirming the execution of the pledge agreement are, among other things, the existence of an appropriate court decision or a statement by the pledgee on the fulfillment of the pledge agreement by the pledgor, that is, a notarized statement of mutual settlement by the plaintiff K.N. to S.E. However, such evidence was not provided by the plaintiff in support of the claim.
In this regard, the court of first instance lawfully dismissed the claim due to its groundlessness and lack of evidence.
The appellate judicial board reasonably agreed with the above-mentioned conclusions of the court of first instance, which upheld the court's decision.
The arguments of the cassation appeal are identical to the arguments of the claim and the appeal, which were given a proper legal assessment by the courts of previous instances.
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