Postponement of execution of a court decision | Installment payment of obligations | Independent sale of mortgaged property
The Judicial Board for Civil Cases of the Almaty City Court, chaired by Judge Mukhamedzhanuli N., with the participation of a representative of the recoverer of the joint–stock company (hereinafter - JSC) "Jysan" on behalf of Sultan K.N., a representative of the debtor U.Zh.S. on behalf of Besbai A.T., having considered in open court the civil case on the claim of Tsesnabank JSC to U.J.S., P.D.A. on foreclosure on mortgaged property – an apartment building with a total area of 231.9 sq.m., a residential area of 96.1 sq.m., owned by U.Zh.S., located at: Almaty city, Auezovsky district, microdistrict ...., T... street, 34, received on the private complaint of defendant Usmanov against the definition of Bostandyksky the District Court of Almaty dated January 8, 2020, on the refusal to satisfy the application for postponement of the execution of the decision of this court dated April 15, 2019, the Bostandyk District Court of Almaty (hereinafter – the court), by a decision dated April 15, 2019, satisfied the present claim of Tsesnabank JSC (now Jysan JSC), deciding to foreclose on the mortgaged immovable property belonging to the debtor U.J.S. by right of ownership - a residential building with a total area of 231.9 sq.m., located on a land plot of 0.0826 hectares, at the address: Almaty, Auezovsky district, Kalkaman-2 microdistrict, 34 ..... street (hereinafter referred to as an apartment building with a land plot or mortgaged property), with the establishment of the initial sale price of this property at its sale equal to 30 316 000 tenge. By the decision of the judicial board dated October 24, 2019, the court's decision was changed by canceling the decision regarding the establishment of the initial sale price of the pledged property in the amount of KZT 30,316,000 and issuing a new decision on the establishment of such a property price at its sale, amounting to KZT 77,911,611.
Postponement of execution of a court decision | Installment payment of obligations | Independent sale of mortgaged property
Based on the decision, a writ of execution was issued, according to which enforcement proceedings were initiated. On May 14, 2018, the debtor U.Zh.S. applied to the court for a delay in the execution of the decision, referring to the first part of Article 238 of the Civil Procedure Code, paragraph 1 of Article 40 of the Law "On Enforcement Proceedings and the Status of Bailiffs" and indicating that he, Usmanov, is currently taking all measures to independently implement the pledged property. The court's ruling of January 8, 2020 denied the application. In a private complaint by U.J.S. the question is raised about the cancellation of the ruling and the satisfaction of the application for postponement of the execution of the decision, in support of which the arguments are given that the bailiff transferred the pledged property for sale, although the value of the property in 77,911,611 tenge is many times higher than the remaining debt; Usmanov received permission from the bailiff to independently sell the pledged property and Measures are currently being taken to implement it.
The requirement to cancel the judicial act and satisfy the application is based on the same provisions of the law specified in the application, as well as on the provisions of Article 21 of the Law "On Mortgage of Immovable Property", the normative resolution of the Supreme Court dated March 31, 2017 No. 1 "On the application by courts of certain norms of legislation on enforcement proceedings" (hereinafter – the normative resolution). No response has been submitted to the private complaint. Based on the results of the appeal review, the judicial board considers the ruling to be set aside with satisfaction of the application for postponement of the execution of the decision, and U.J.S.'s private complaint to be satisfied. The board bases this conclusion on the following circumstances and norms of the law. By a court decision dated April 15, 2019, foreclosure was levied on an apartment building with a land plot, and the initial selling price for its sale was set at 30,316,000 tenge. By the decision of the judicial board dated October 24, 2019, this market value was increased to 77,911,611 tenge. Currently, the bailiff is conducting enforcement proceedings on foreclosure on mortgaged property, this residential property has been transferred for sale at public auction. In accordance with the first part of Article 238 of the Code of Civil Procedure, the postponement of the execution of the decision is possible, taking into account the property status of the parties or other valid reasons. This rule is applicable in the event that the execution of the decision is not carried out. In this regard, the court's application of the specified rule of law may not be correct. As provided for in the first part of Article 246 of the Code of Civil Procedure, the court that issued the decision ..., at the request of the parties to the enforcement proceedings, may postpone ... the execution of the court decision if circumstances arise that make the execution of enforcement actions difficult or impossible.
Postponement of execution of a court decision | Installment payment of obligations | Independent sale of mortgaged property
By virtue of paragraph 22 of the regulatory resolution, when granting a stay of execution, the courts must proceed from a balance of the rights and legitimate interests of the recoverer and the debtor so that the established procedure for executing the court decision meets the requirements of reasonableness, fairness and does not affect the essence of the guaranteed rights of persons involved in enforcement proceedings, as well as the rights and legitimate interests of third parties. Paragraph 23 of this regulatory resolution clarifies that the debtor's property status as the basis for granting him a delay in execution means that the debtor cannot voluntarily or forcibly fulfill the obligation in full at one time by selling his property provided for in articles 20 and 44 of the Civil Code. The second paragraph of this paragraph of the regulatory resolution states that the grounds for granting a postponement ... of the execution of the enforcement document may be circumstances that cannot be eliminated at the time of the appeal to the court, preventing the debtor from executing the enforcement document; whether there are such grounds, the court decides in each specific case, taking into account all relevant factual circumstances.; These may include the debtor's difficult financial situation, as well as reasons that significantly impede execution (for example, the debtor's serious illness, destruction or significant damage (through no fault of the debtor) to his immovable property, etc.); the court must assess the possibility of executing the court's decision after the expiration of the delay period.…
It also follows from this paragraph that the court must be provided with evidence confirming that by the time the deferral ends ... the debtor will have property and income sufficient to execute the judicial act. According to paragraph 24 of the said regulatory resolution, a procedural decision to postpone the execution of enforcement actions may be taken in accordance with article 246 of the Code of Civil Procedure if the parties to the enforcement proceedings provide evidence that the divisible obligation cannot be fulfilled at one time at the expense of the debtor's property. The court based its conclusion on the refusal to satisfy the application for postponement of the execution of the decision on foreclosure on a residential building with a land plot only on the arguments that the debtor's independent sale of the pledged property was not a reason for granting a delay in the execution of the court decision, and there was no evidence to delay the execution of the decision by the defendant. In resolving this issue, the court did not give a proper legal assessment to the above-mentioned legal norms and did not take into account legally significant circumstances.
It was found out that Usmanov Zh.S. although the obligation to execute a court decision on debt collection cannot be fulfilled at a time, the mortgaged property as an apartment building with a land plot, when sold at auction, may well ensure the execution of this court act. In this situation, the court should have correctly interpreted article 246 of the Code of Civil Procedure and the relevant paragraphs of the regulatory resolution, rather than arguing for a refusal to delay the execution of a decision to foreclose on mortgaged property by failing to provide evidence by the debtor allowing such a delay to be applied. The court also ignored the following circumstances. By a court decision dated May 17, 2017, the amount of loan debt in KZT 14,906,301 and the amount of expenses for the payment of state duty in KZT 447,189 were recovered from U.Zh.S. in favor of Bank CenterCredit JSC. It has been established that the part of the debt established by the judicial act has been repaid by the specified debtor. The court also made a procedural decision to refuse to postpone the execution of the decision without taking into account paragraph 3 of Article 319 of the Civil Code, according to which the court, at the request of the pledgor, has the right to postpone the sale of the pledged property of individuals for up to one year. According to this provision, the deferral does not affect the rights and obligations of the parties under the obligation secured by the pledge of this property, and does not exempt the debtor from compensating the creditor's losses and penalties that have increased during the deferral.
Postponement of execution of a court decision | Installment payment of obligations | Independent sale of mortgaged property
In resolving the issue of granting a stay of execution, the court also unreasonably failed to discuss and take into account the financial situation of the debtor, Zh.S. Usmanov, and the fact that the balance of the outstanding debt is disproportionate to the market value of the pledged property and the debtor should be given the opportunity to refinance the mortgage loan. The above indicates that the court's conclusion does not correspond to the circumstances relevant for the proper resolution of the issue (dispute) that has arisen, and was made in violation of the law, which, in accordance with and by analogy with subparagraphs 3) and 4) of the first part of Article 427 of the Civil Procedure Code, are grounds for revoking the appealed ruling. 5. Thus, on the basis of the above circumstances, the norms of the law and the normative resolution relating to the composition of the current law, the judicial board considers it necessary to cancel the appealed ruling.
Considering that the violations committed by the court, expressed in the incorrect application of the norms of substantive and procedural laws, were corrected during the appeal hearing of the case, and the circumstances of the matter under consideration were established, the judicial board considers it necessary, along with the cancellation of the appealed ruling, to satisfy the applicant's application for the cancellation of the said court act and the application for postponement of the decision. It must be satisfied. Guided by subparagraph 3) of the sixth part of Article 429, Article 431 of the Civil Procedure Code, the judicial board determined: The ruling of the Bostandyk District Court of Almaty dated January 8, 2020, issued in this civil case, to cancel and to satisfy the application of U.J.S. for postponement of execution of the decision of this court. To postpone the execution of the decision of this court dated April 15, 2019 on foreclosure on mortgaged property – an apartment building with a total area of 231.9 sq.m., a residential area of 96.1 sq.m., owned by U.Zh.S., located at: Almaty city, Auezovsky district, microdistrict., T. street, 34, on 1 (one) year, until February 27, 2020. To satisfy the private complaint of U.J.S..
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