Recognition of illegal inaction by not applying to the court for allocation of the debtor's share in real estate jointly owned by the spouses and by not involving an appraiser to determine the market value of real estate; recognition of illegal actions to terminate the attached enforcement proceedings on debt collection and cancellation of the contested resolution

The norms of procedural law have been violated.

No.6001-22-00-6ap/2073 dated 04/04/2023

Plaintiff: J.G.

Defendant: HSI "A"

Interested parties: J.A., JSC "F" (hereinafter - the Bank), K.A.

The subject of the dispute: the recognition of illegal inaction by not applying to the court for the allocation of the debtor's share of Zh.A. in real estate jointly owned by the spouses and by not involving an appraiser to determine the market value of real estate; the recognition of illegal actions to terminate the connected enforcement proceedings on debt collection and the cancellation of the contested resolution.

Review of the plaintiff's cassation appeal.

PLOT:

On December 27, 2019, by the decision of the court No. 2 of the city of Uralsk, the debt in the amount of KZT 6,407,503 was recovered from Zh.A. in favor of the Bank. On 17.02.2020, enforcement proceedings (IP) were initiated by the decision of the CHSI "A" on this court decision.

On 28.04.2020, by the decision of the same court, K.A. and J.A. were charged debts in the amount of 4,629,811 tenge in favor of the Bank, and the cost of paying the state duty was 69447 tenge each. On 08/11/2020, the IP was initiated by HSI "A".

On 08/19/2020, a decree of the CHSI seized the mortgaged apartment registered with the debtor Zh.A.

On 10.02.2022, both enforcement proceedings were merged into one.

On 10.02.2022, an agreement was concluded between the debtor J.A. and the buyer K.F. on the value of the debtor's seized property for its independent sale. A purchase and sale agreement was drawn up, according to which Zh.A. sold, and the buyer purchased a mortgage apartment for 11,173,430 tenge. The funds were deposited by the buyer into the CSI control account and transferred to the recoverer's account to repay the debt.

On 10.02.2022, the IP was terminated by the decree of the CHSI.

The plaintiff argued that the apartment was the jointly acquired property of the spouses of Zh. The arrest imposed on the property infringes on its rights as the owner. Her share in the total assets has not been determined or allocated.The CSI did not determine the market value of the disputed apartment. The Bank, being the recoverer of the IP, was not a party to the contested agreement in violation of the requirements of paragraph 5 of Article 68 of the Law of the Republic of Kazakhstan "On Enforcement Proceedings and the Status of Bailiffs" (hereinafter - the Law). Also, CHSI did not offer to purchase a share, violating the right of pre-emptive purchase. The agreement and the purchase agreement were drawn up simultaneously.

Judicial acts:

1st instance: the ruling returned the claim on the basis of subparagraph 11) of the second part of Article 138 of the CPC (the case is not subject to consideration in administrative proceedings).

Appeal: the definition remains unchanged.

Cassation: judicial acts are cancelled.

Conclusions: The Court of First Instance indicated that the claims claimed by the plaintiff are related to the ownership of the property that was sold by the bailiff, this dispute is subject to consideration according to the rules of claim proceedings in civil proceedings. In fact, the plaintiff, J.G., filed a claim for the right related to the ownership of the sold property.

The appellate instance agreed with the court's conclusions, pointing out that Zh.G. had been acquainted with the agreement.

Also in the IP materials there is a statement by Zh.G. addressed to HSI "A" dated 02/10/2022, stating that she consents to the spouse of Zh.A. to sell the seized property and a notarized consent to the sale of the disputed mortgaged apartment by Zh.A. dated 02/11/2022 for the price and on terms at his discretion.

In accordance with subparagraph 15) of the second part of Article 138 of the CPC, the court issues a ruling on the return of the claim if the court refuses to restore the missed time limit for filing a claim.

In accordance with the second part of Article 126 of the CPC, the time limits established by this Code may be restored by the court if they are missed for reasons recognized by the court as valid.

Plaintiff Zh.G. did not provide the court with evidence of valid reasons for restoring the missed deadline for filing a lawsuit. She became aware of the violated right in February 2022. Whereas the plaintiff filed a lawsuit with the SMAS on 06/23/2022, that is, after the expiration of the time limit for appealing the actions of the CSI.

The Board considered the conclusions of the local courts to be untenable.

It follows from the meaning of articles 3, 5 and 9 of the CPC that public law relations arise between subjects of law regarding the exercise by one of the participants of his powers in relation to the other.

In this case, administrative acts and administrative actions (inaction) are the subject of administrative proceedings.

Based on the analysis of the above-mentioned norms of procedural legislation, it follows that the action (inaction) The rights, freedoms and legitimate interests of J.G. were affected.

At the same time, the resolution of the issue of restoring the missed procedural time limit for filing a claim in court and returning the claim in connection with its omission is the prerogative of the court of first instance, this issue does not relate to the powers of the court of appeal.

The Court of Appeal, by returning the claim on this basis, exceeded its authority and resolved an issue beyond its jurisdiction.

Local courts have not taken sufficient measures to comprehensively, fully and objectively clarify the circumstances relevant to the case, and the norms of substantive and procedural law have been incorrectly applied.

These violations led to the cancellation of the contested rulings and the referral of the case for a new hearing to the court of first instance in a different composition of the court.

 

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