Pledge as a way to ensure the fulfillment of obligations.
A pledge is a method of securing the fulfillment of an obligation by virtue of which the creditor (pledgee) has the right, in the event of non-fulfillment by the debtor of the obligation secured by the pledge, to obtain satisfaction from the value of the pledged property primarily before other creditors of the person to whom this property belongs (the pledgor), with exceptions established by the Civil Code. Along with the penalty, collateral is one of the main ways to ensure the fulfillment of a bank loan agreement. In accordance with paragraph 3 of Article 722 of the Civil Code, if the contract provides for the return of the loan item in parts (in installments), then if the borrower violates the deadline set for the return of the next part of the loan item, the lender has the right to demand early repayment of the entire remaining part of the loan item along with the remuneration due, as well as to satisfy its claims by foreclosing on mortgaged property (subparagraph 4) of paragraph 2 of Article 321 of the Civil Code. According to subparagraph 4) of paragraph 2 of Article 321 of the Civil Code, the pledgee has the right to demand early fulfillment of the obligation secured by the pledge, and if his claim is not satisfied, to foreclose on the pledged object in the event of: violation by the pledgor of the obligation secured by the pledge (Articles 317, 720 and 722 of this Code, Article 20 of the Law of the Republic of Kazakhstan dated December 23, 1995 "On mortgage of real estate"). In accordance with article 20 of the Mortgage Act, foreclosure on mortgaged property may be levied to satisfy the claims of the mortgagee in the event that the debtor fails to fulfill the obligation secured by the mortgage for which he is responsible. The pledgee has the right to satisfy his claims by: 1) sale of the mortgage in court; 2) sale of the mortgage out of court, if this is provided for by the laws of the Republic of Kazakhstan or in the mortgage agreement or subsequent agreement of the parties; 3) taking ownership of the mortgaged property in the event that the auction is declared invalid in accordance with article 32 of the Mortgage Law.
Pledge as a way to ensure the fulfillment of obligations.
The analysis of the above norms allows us to draw the following conclusions: 1) the basis for foreclosure on the mortgaged property is a violation by the borrower of the deadline set for the repayment of the next part of the loan item - a violation of the obligation; 2) the bank must declare to the debtor a demand for early fulfillment of the obligation secured by the pledge; 3) the realization of the mortgage is a way to satisfy the bank's claim; 4) the choice of the method of realization of the pledged property is the right of the mortgagee, and therefore the conclusion of the courts that the plaintiff has not exercised the right to extrajudicial realization is erroneous. Taking into account these norms, the decision of the judicial board for civil cases of the Supreme Court of the Republic of Kazakhstan declared unlawful and annulled the decision of the Bostandyk District Court of Almaty, the decision of the Appellate Judicial Board for Civil and Administrative cases of the Almaty City Court, the decision of the cassation Judicial board of the Almaty City Court in the case of the claim of JSC "Bank" to LLP "R", LLP "K", V. on the recovery of the amount of debt by foreclosure on collateral. By the decision of the court of first instance, the bank's claim was denied, including due to the fact that the bank had not exercised the right to the extrajudicial sale of the pledged property. By the decision of the Bostandyk District Court of Almaty, the Bank JSC's claim against A., K. regarding foreclosure on the mortgaged property was denied, on the grounds of the possibility of selling the property out of court, by the decision of the appellate judicial board of Almaty, the court decision was left unchanged, however, the right to choose the method of foreclosure on the mortgaged property belongs to the mortgagee. Courts should keep in mind that when filing a claim for foreclosure on mortgaged property, the mortgagee is not required to prove the impossibility of extrajudicial sale of the mortgaged property. By the ruling of the Alakolsky District Court of the Almaty region, the application of JSC Bank to Zh., A. regarding the claim for foreclosure on mortgaged property was left without consideration. According to the court, having stipulated in the contract the right to the extrajudicial sale of the pledged property, the plaintiff may file a lawsuit with the court for the judicial sale of the pledged object if he proves that the pledgor creates obstacles to his extrajudicial sale.
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