Postponement of execution of a court decision on foreclosure on pledged property for up to 12 months

On February 10, 2016, Judge B.T. Khasanova of the Turksib District Court of Almaty, having considered in open court the submission of the private bailiff of the executive district of Almaty, Zh.B. Abeldinova, on foreclosure on the debtor's seized property, in the form of a house, the only dwelling located at Almaty, Krasnogvardeisky tract .., which is collateral for the debtor's obligations to the recoverer, with the establishment of the initial selling value of the property in the amount of 10,292,000 tenge, Determined: Submission of a private bailiff of the executive district of Almaty, Abeldinova Zh.B. – to satisfy, foreclose on the pledged property in the form of a residential building with a total area of 62.5 sq.m. built in 2004 with land plot of 0.0579 ha, located at the address of Almaty, Krasnogvardeisky tract .., owned by the Applicants on the right of private ownership. However, having taken over and issued a ruling, Judge B.T. Khasanova of the Turksib District Court of Almaty reasoned his ruling that the debtors were not properly executing the court decision and the debtors did not appear at the court session, although they were notified of the time and place of the court session, their failure to appear was not an obstacle to the consideration of the submission. We do not agree with the ruling of the Turksib District Court of Almaty and believe that this ruling is subject to cancellation due to a significant violation by the court of first instance of the norms of procedural and substantive law. Since the court notices were not sent to the addresses indicated in the case file of the Private Bailiff Abeldinova Zh.B., because Rana CHSI Abeldinova Zh.B., all contacts, addresses and powers of attorney of interest to the Applicants were provided (as evidenced by the correspondence attached to the complaint), we also had repeated meetings to resolve the case and we assisted The CSU has repeatedly asked us to notify us of the repeated submission to the court of a claim for foreclosure on the debtor's seized property.  We also periodically checked the website of the Supreme Court for the actions of Abeldinova Zh.B., in relation to the Applicants, however, to this day, the website of the Supreme Court (Judicial Office) does not contain notices sent through the judicial office and or SMS notifications on the intention of cell phones, and there is no court ruling itself, which indicates improper notification of the court. about the time and place of the court session. On April 04, 2016, we learned from the employees of the Center Credit Bank about the upcoming auctions for the reolization of the arrested single dwelling, which should be on 04/08/2016, after which, on the same day, when we visited Ms. Abeldinova Zh.B., we received:

The ruling of the Turksib District Court of Almaty dated 10.02.2016.

The decree on the transfer of the seized property for reolization dated 24.03.2016.

The application for the reolization of the seized property through an electronic auction dated 03/25/2016.

Notification of the upcoming auction dated 30.03.2016.

Where did we find out about the upcoming bidding (Auction) on 08.04.2016 at 10:00 a.m. on the electronic trading platform WWW.EAUC.KZ . After which we sent an appeal against the determination of the Turksib District Court of Almaty, however, after we sent a complaint to the court from CHSI Abeldinova Zh.B., we received a call that they would re-receive the court's ruling on foreclosure of collateral, as the assessment period had passed, after which the complaint was withdrawn.

Postponement of execution of a court decision on foreclosure on pledged property for up to 12 months

Thus, having studied the above materials, we came to the following conclusion. By virtue of Article 13 of the Constitution of the Republic of Kazakhstan, everyone has the right to defend their violated or disputed rights, freedoms or legally protected interests. In accordance with Article 8 of the CPC, everyone has the right to apply to the court for protection of violated or disputed constitutional rights, freedoms or protected interests. In accordance with Article 15 of the Civil Procedure Code of the Republic of Kazakhstan, the parties choose their position, ways and means of defending it independently and independently of the court, other bodies and persons during civil proceedings. According to the Law of the Republic of Kazakhstan On Enforcement Proceedings and the Status of Bailiffs, Article 40. Postponement, installment plan, change of the method and procedure of execution, indexation of the amounts awarded. If there are circumstances that make the execution of enforcement actions difficult or impossible, the recoverer or the debtor or the bailiff has the right to raise the issue of changing the method and procedure of execution before the court that reviewed the case or before the court at the place of execution. Thus, according to article 74. The sale of seized property, the sale of seized property, except for property withdrawn from circulation by law, regardless of the grounds for arrest and types of property, with the exception of property specified in paragraph 3 of Article 77 of this Law, shall be carried out by a bailiff at auction in the form of an electronic auction. Auctions in the form of an electronic auction are conducted on a single electronic trading platform, which is selected by the authorized body. The debtor, after the arrest and assessment of the property by the bailiff and before the seizure or sale of the property, with the written permission of the bailiff and within the time limit set by him, has the right to sell the seized property at a value not lower than the estimated value. In connection with this, the Plaintiff was deprived of the right to sell the real estate itself, whereas the only property of the CSI intends to be sold by bidding for a reduction, and currently, after the sale of the property, the debt remains to the plaintiff's bank. Also according to Article 72. The order of sale of the debtor's property, when foreclosing on the property of an individual, the sale of this property is carried out in the following order: 1) first of all - property that is not essential, securities, currency valuables, precious metals and precious stones, jewelry, decorative items and furnishings; 2) second of all - vehicles, real estate (except housing); 3) third of all - housing. In this case

Private bailiff of the executive, did not consider it necessary

 The order of sale of the debtor's property in accordance with Article 72 of the Law of the Republic of Kazakhstan On Enforcement Proceedings and the status of Bailiffs. By virtue of Articles 65,66 of the CPC RK, each party must prove the circumstances to which it refers both on the basis of its claims and objections. In this case, the evidence is provided by the parties and other persons involved in the case. According to Part 1 of Article 219 of the CPC RK, when making a decision, the court evaluates the evidence, determines which circumstances relevant to the case have been established and which have not been established, what are the legal relations of the parties, what law should be applied in this case and whether the stated claim is subject to satisfaction. The court resolves the case within the limits of the plaintiff's claims. According to art . 129 of the CPC RK, persons participating in the case, as well as witnesses, experts, specialists and translators, are notified or summoned to court by registered mail with a notice of delivery, a court summons with a notice of delivery, a telephone message or telegram, by fax or using other means of communication and delivery that ensure the recording of a court notice or summons. and its delivery to the addressee. A court summons is one of the forms of court notices and summonses. The persons participating in the case are notified by court summonses of the time and place of the court session or the commission of certain procedural actions. Copies of the procedural documents are sent to the person involved in the case along with the notification in the form of a court summons or a registered letter. Judicial summonses are also used to summon witnesses, experts, specialists and interpreters to court. Court notices and summonses must be served to the persons involved in the case in such a way that the said persons have sufficient time to prepare for the case and appear in court on time. A court notice addressed to a person participating in the case is sent to the address indicated by the person participating in the case or his representative. If a citizen does not actually live at the specified address, a notification may be sent to his place of work. Also, it is currently unknown to which subscriber number the SMS notification was sent through the judicial office of the Supreme Court, as no SMS messages have been received from the court so far. The defendant learned about the existing court proceedings, as well as about the ruling that took place, from the bank's employees, and received the ruling from the CSI by visiting the CSI. In accordance with paragraph 5 of Article 129 of the CPC RK, proper notification of a party is a notification received by one of the adult family members of the party residing at the specified address, sent by registered mail with a notification of its delivery, a telephone message or telegram, as well as a report confirming the delivery of a text message to a cellular subscriber number, ensuring the recording of the notification or call, if the party does not prove that the notification was not received or was received later. In accordance with Articles 75-78 of the Constitution of the Republic of Kazakhstan, everyone has the right to be heard in court.; Courts have no right to apply laws and other normative legal acts that infringe on the rights and freedoms of a person and citizen enshrined in the Constitution. If the court finds that a law or other regulatory legal act to be applied infringes on the rights and freedoms of a person and citizen enshrined in the Constitution, it is obliged to suspend the proceedings and apply to the Constitutional Council with a motion declaring this act unconstitutional., and art . 15 of the Civil Procedure Code of the Republic of Kazakhstan, civil proceedings are conducted on the basis of competition and equality of the parties, which can be fully realized only if each of the persons involved in the case is given the opportunity to attend the court session. also in article 13. Equality of all before the law and the court it is stated that Justice in civil cases is carried out on the basis of equality before the law and the court, during civil proceedings, none of these citizens can be given preference and none of them can be discriminated against on the grounds of their origin, social, official and property status, gender, race, nationality, language, religious beliefs, place of residence, or any other circumstances; legal entities may not be preferred and none of them may be discriminated against based on their location, organizational and legal form, subordination, form of ownership and other circumstances.

Postponement of execution of a court decision on foreclosure on pledged property for up to 12 months

Therefore, the specified persons must be notified of the date, time and place of the court session or the performance of the procedural action by the court using the means and methods provided for in Articles 127, 128, 129, 130 of the CPC RK. Thus, the procedural rights and the principle of adversarial proceedings provided for by the current legislation were violated.            

 According to Article 134 of the Civil Procedure Code of the Republic of Kazakhstan, the persons participating in the case and their representatives are required to inform the court about the change of address, cellular subscriber number, and e-mail address during the proceedings. In the absence of such a message, a subpoena or other notification, calls are sent to the last known court address, cellular subscriber number or e-mail address and are considered delivered, even if the addressee no longer resides at this address or is not using this cellular subscriber number or e-mail address. Thus, knowing about the latest contact information and the place of residence, the CSI did not inform the court, since the ruling is usually made in favor of the applicant, satisfying all requirements if the defendant does not appear in court. Also, the defendant was deprived of the opportunity to familiarize himself with the materials of the civil proceedings and to provide the court with evidence refuting the circumstances on which the plaintiff bases his claims. In addition, the defendant did not refuse to pay his obligations to the bank, did not evade responsibility, did not avoid, but on the contrary, throughout the entire time the defendant conducted successful negotiations with the bank by correspondence and fulfilling monthly payments to the extent possible. 80 000- 90 000 tenge and currently there is a buyer who is ready to contribute monthly payments of 200,000 tenge. In turn, we have written a motivated letter to the bank and the CSI. In Article 401. The CPC RK, appeals and protests against decisions made by district and equivalent courts are considered solely by the judge of the regional and equivalent court. In Article 403 of the CPC RK, Complaints and protests are filed (brought) through the court that issued the decision, resolution. Complaints and protests received directly by the appellate instance are subject to referral to the court that issued the decision in order to comply with the requirements of part two of this Article and Article 338 of this Code.  Complaints and protests are filed (brought) to court with copies according to the number of persons involved in the case. If necessary, the judge may require the person filing the appeal or protest to provide copies of the written evidence attached to the appeal or protest according to the number of persons participating in the case. According to Article 317 of the Civil Code of the Republic of Kazakhstan, the grounds for foreclosure on mortgaged property reads as follows  Foreclosure on the pledged property in order to satisfy the claims of the pledgee (creditor) may be levied in the event of non-fulfillment or improper fulfillment by the debtor of the obligation secured by the pledge for which he is responsible.  Foreclosure on the pledged property may be refused if the violation of the obligation secured by the pledge committed by the debtor is extremely insignificant and the amount of the pledgee's claims as a result is clearly disproportionate to the value of the pledged property. The violation of the obligation secured by the pledge is extremely insignificant and the amount of the pledgee's claims is clearly disproportionate to the value of the pledged property, while the following conditions are met. Currently, the Applicants are executing the court's decision in monthly payments, as evidenced by the payment invoices in the appendices.             

According to Article 8 of the Civil Code of the Republic of Kazakhstan, the exercise of civil rights: Citizens and legal entities, at their discretion, dispose of their civil rights, including the right to their protection. Failure to exercise the rights belonging to citizens and legal entities does not entail the termination of these rights, except in cases provided for by legislative acts.  The exercise of civil rights should not violate the rights and legally protected interests of other subjects of law, and should not cause damage to the environment. Citizens and legal entities must act in good faith, reasonably and fairly in exercising their rights, observing the requirements contained in the legislation, the moral principles of society, and entrepreneurs - also the rules of business ethics. This obligation cannot be excluded or limited by the contract. Good faith, reasonableness and fairness of the actions of participants in civil law relations are assumed. Actions of citizens and legal entities aimed at harming another person, abusing the right in other forms, as well as exercising the right in contradiction with its purpose are not allowed. In case of non-compliance with the requirements provided for in paragraphs 3 to 5 of this article, the court may refuse to protect the person's right.            

 According to Article 8. Civil Procedure Code of the Republic of Kazakhstan Judicial protection of the rights, freedoms and legitimate interests of a person: Everyone has the right, in accordance with the procedure established by this Code, to apply to the court for protection of violated or disputed constitutional rights, freedoms or legally protected interests. State bodies, legal entities, or citizens have the right to apply to the court for the protection of the rights and legally protected interests of other persons or an indefinite circle of persons in cases provided for by law. And also in Article 11 of the CPC RK Inviolability of property: Property is guaranteed by law. No one can be deprived of their property, except by a court decision.  The seizure of deposits of persons in a bank and other property, as well as its seizure in the course of civil proceedings, may be carried out in the cases and in accordance with the procedure provided for by this Code. The law states that after the initiation of enforcement proceedings, the bailiff must carry out all actions related to the identification of the debtor's property, including cash, movable and immovable property. According to the requirement of article 55 of the Law "On Enforcement Proceedings", foreclosure on enforcement documents is applied primarily to the debtor's monetary amounts. If the debtor does not have sufficient sums of money to repay the debt, foreclosure is levied on other property belonging to the debtor. If the debtor's other property is insufficient, foreclosure may be levied on his property, the value of which exceeds the amount of the foreclosure under the enforcement document. In this case, it is clear that the requirement of the bailiff is not respected, and the requirements of article 25 are violated. The Constitution of the Republic of Kazakhstan, which stipulates that deprivation of housing is not allowed except by a court decision. In addition, according to paragraph 1 of Article 318 of the Civil Code, the satisfaction of the mortgagees' claim by the value of the pledged property is carried out, unless otherwise established by the Code or the contract, in court. At the same time, the court, by authorizing the decision of a private bailiff to foreclose on mortgaged property, violated the procedure established by the aforementioned legislative norms. According to the amendments and additions made by the Supreme Court to the regulatory resolution "On certain issues of the application of legislation on enforcement proceedings." In particular, paragraph 6 is worded as follows: "When considering complaints about the actions of bailiffs and claims for the protection of property rights of third parties in the process of executing enforcement documents, it should be borne in mind that enforcement of enforcement documents is primarily directed at the debtor's money, including those held in banking institutions, from third parties. If the debtor does not have enough money to repay the debt, foreclosure is applied to other property. Actions to foreclose on property are carried out according to the rules provided for in article 40 of the Law "On Enforcement Proceedings". In such circumstances, the ruling of the court of first instance in satisfaction of the CSI's submission, determined with violations of the civil procedure law, which limited the rights of participants in civil proceedings guaranteed by the Constitution of the Republic of Kazakhstan and the CPC of the Republic of Kazakhstan, cannot be recognized as lawful, justified and fair. On the basis of the above and guided by the regulatory legal acts of the Republic of Kazakhstan, the court was asked to cancel the Ruling on foreclosure on collateral, of the Turksib District Court of Almaty, Judge Khasanova B.T., dated 02/10/2016.

Postponement of execution of a court decision on foreclosure on pledged property for up to 12 months

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 International Criminal Court a civil case on the claim of Bank Center Credit JSC against the United Arab Emirates for foreclosure on collateral received following a private complaint by the defendant against the ruling of the Turksib District Court of Almaty dated March 05, 2020 O P R E D E L I L A: To cancel the ruling of the Turksib District Court of Almaty dated March 05, 2020 in this civil case. The application must be partially satisfied. 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 the United Arab Emirates on foreclosure on collateral for a period up to February 18, 2021. Partially satisfy the defendant's private complaint.

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