On the recognition of illegal and cancellation of the decision on the transfer of seized property for sale

No. 6001-24-00-6ap/329 dated January 14, 2025

Plaintiff: LLP "A"

Defendant: HSI

Interested person: K.A.

The subject of the dispute: on the recognition of illegal and cancellation of the decision on the transfer of seized property for sale

Review of the plaintiff's cassation complaint PLOT:

The defendant's resolution of January 31, 2023, seized the real estate belonging to the plaintiff.

On January 31, 2023, the defendant issued a resolution on the participation of a specialist in the assessment of seized property.

According to the report dated February 2, 2023, the market value of real estate at the valuation date was 1,025,195,977 tenge, taking into account rounding.

The plaintiff was presented with the assessment report on April 4, 2023.

By the ruling of the district court of the region dated June 29, 2023, the application of the person concerned for foreclosure on the plaintiff's real estate was satisfied.

On August 16, 2023, the defendant issued a resolution on the transfer of the seized real estate for sale.

Judicial acts:

1st instance: the claim is satisfied.

Appeal: the decision of the court of first instance was overturned with the issuance of a new decision to dismiss the claim.

Cassation: the decision of the appellate instance is upheld.  

Conclusions: in satisfying the claims, the court of first instance pointed to the expiration of a six-month period from the date of the assessment report, as the report was drawn up on February 2, 2023, while the defendant ordered the transfer of the seized property for sale at the price specified in the assessment report on August 16, 2023.

By overturning the decision of the court of first instance, the court of appeal considered that the arguments about the expiration of the valuation report on the collateral were erroneous, since in this case the norm on the one-year validity period of the valuation report was applicable.

According to paragraph 2 of Article 74 of the Law, after the seizure and valuation of property and before the sale of property, simultaneously with reviewing the valuation report, the bailiff grants the debtor, upon his written request, the right to independently sell the seized property within a period of no more than one month at a cost not lower than seventy-five percent of its estimated value indicated in the valuation report., which has been completed no more than one year ago.

By Order of the Minister of Finance of the Republic of Kazakhstan dated May 3, 2018 No. 501, the Requirements for the form and content of the valuation report were approved, according to paragraph 10 of which the total value of the valuation object indicated in the valuation report is recognized as recommended for the purposes of making a transaction with valuation objects if from the date of the valuation report to the date of the transaction with No more than six months have passed since the date of evaluation or the date of submission of the public offer, unless otherwise established by the legislation of the Republic of Kazakhstan.

At the same time, as part of the enforcement proceedings, a report on the valuation of property that is collateral for the conclusion of a mortgage agreement, as well as for the sale of mortgaged property, from the date of which no more than one year has passed.

Thus, less than a year has passed since the preparation of the assessment report on February 2, 2023, until the controversial ruling was issued on August 16, 2023.

In this regard, the judicial board agreed with the conclusions of the appellate instance on the legality of the contested decision of the defendant.

In such circumstances, the court of appeal lawfully overturned the decision of the court of first instance and reasonably issued a new decision to dismiss the administrative claim.

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