Private definitions in relation to Bailiffs
Enforcement proceedings according to the Law "On Enforcement Proceedings and the Status of Bailiffs" (the Law) are carried out on the principle of legality and the bailiff is obliged to prevent infringement of the rights and legitimate interests of individuals and legal entities in his activities.
The judgments issued to the justice authorities and the Regional Chambers of the Civil Protection Service indicate that the bailiffs violated the requirements of the Law.
Violation of article 48 of the Law: return of enforcement documents to the recoverer
The SMAS in the administrative case on challenging actions on established violations by the bailiff was submitted by the CHO to the Regional Chamber of the CHSI.
The basis for the ruling: the case materials established that the initiated enforcement proceedings were returned on the grounds specified in article 48 (subitem 1, paragraph 1, at the request of the recoverer) of the Law. By virtue of article 49 of the Law, the enforcement proceedings are considered completed.
Thus, due to the requirements of the above-mentioned norms for the completed enforcement proceedings, the CSI had no legal grounds for canceling the decision to return the enforcement document.
In this case, the CSI actually resumed enforcement proceedings with the issuance of a new resolution on the determination of arrears, whereas it had previously determined by a resolution on the absence of arrears.
Thus, there are two resolutions in the materials of the enforcement proceedings, which contradict each other in content.
As can be seen from the materials of the enforcement proceedings, the original court order is missing and the original court order is not attached to the plaintiff's application. A copy of the court order certified by the judge is contained in the enforcement proceedings.
Thus, the CSI, violating the requirements of the above-mentioned Law, in the absence of the original court order, had no right to cancel the decision on the return of the enforcement document and resume enforcement proceedings.
According to paragraph 2 of Article 48 of the Law, the return of the enforcement document to the recoverer is not an obstacle to the re-presentation of this document for execution within the statutory limitation period.
In this regard, upon re-presentation of the original or duplicate writ of execution, new enforcement proceedings must be initiated.
Violation of articles 95, 96 of the Law, the amount of deductions from wages and other types of income of the debtor, foreclosure on the wages of the debtor serving the sentence
The decision recognized as illegal the actions of the CSI to issue a collection order to the settlement account for pension payments. The court issued a private ruling against the ROC.
Basis: Articles 95,96 of the Law establish that when foreclosing on wages or other types of income of the debtor according to one or more enforcement documents, including those in the production of other bailiffs, the debtor must retain at least 50% of wages or other income.
At the same time, the amount retained by the debtor must be at least the minimum subsistence level established annually for the relevant financial year by the law on the republican budget. The bailiff is obliged to monitor the correctness and timeliness of deductions from the debtor's salary and other income.
In violation of the above-mentioned norms of the Law, on the basis of the collection order of the Civil Protection Service, the plaintiff was left without a monthly old-age allowance guaranteed by the state and a living wage. That is, the inviolability of the minimum property necessary for the debtor's existence has been violated, which is the basic principle of enforcement proceedings.
Violation of article 42 of the Law: the duty of the bailiff to suspend enforcement proceedings
The plaintiff filed a lawsuit against the CSI to cancel the protocol on the results of the electronic auction.
It follows from the case file that enforcement proceedings initiated on the basis of a writ of execution for debt collection are under way.
By a court ruling in 2020, the method and procedure for executing a court decision by foreclosing on immovable property were changed.
In November 2021, the CSI sent a notification to the plaintiff and the recoverer that auctions for the sale of collateral had been scheduled.
Meanwhile, by a court ruling in August 2021, the court granted a stay of execution of the court's decision for a period of 4 (four) months until December 2021.
According to paragraph 6 of Article 42 of the Law, enforcement proceedings are subject to suspension in the event of a decision by a court or an official who is granted the right by the legislation of the Republic of Kazakhstan to suspend the execution of a judicial act on the basis of which an enforcement document was issued, as well as the granting by the court of a deferral, an installment plan for a certain period of time.
It follows from this provision of the Law that the CSI was obliged to suspend enforcement proceedings and cancel the scheduled electronic auctions, especially since it was reliably known in advance that the plaintiff had applied to the court for a postponement.
However, the CSI, ignoring, thereby grossly violating the established norms of the Law, did not suspend enforcement proceedings, but on the contrary sold the plaintiff's property through an electronic trading platform, the winner of which was another buyer.
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