Recognition of the actions of the CSI as illegal | Assignment of the obligation to eliminate violations | Violation of the rights and legitimate interests of the debtor

The Judicial Board for civil cases of the Almaty City Court with the participation of the representative of the defendant K.T. Seydakhmetov (power of attorney No. 140-177 dated 18.01.2018), a representative of a third party of the LLP "Micro-credit organization "NEO CREDIT" Konisbekova Zh.N. (power of attorney No. 001-795 dated 17.10.2018), having considered a civil case in open court in the premises of the Almaty City Court according to the complaint of the GRM (hereinafter referred to as M no.R.Zh.), the MSL (hereinafter referred to as MS.L.) on the recognition of illegal actions of a private bailiff of the executive district of Almaty, A.B. Surkhanova. (hereinafter referred to as Chsikhanova A.B.) on the adoption of the assessment report No. 107-05/18 dated 06/04/2018, carried out by Vicon Appraisal LLP, received on appeals from the defendant and a third party against the decision of the Medeu District Court of Almaty dated September 07, 2018. RRJ, MSL filed a complaint with the court against Chsikhanova A.B. with the above requirements. The complaint was satisfied by the decision of the Medeu District Court of Almaty dated September 07, 2018. It was decided: To recognize as illegal the actions of the private bailiff A.B. Surkhanova. according to the adoption of the assessment report No. 107-05/18 dated 06/04/2018, carried out by ViconAppraisal LLP, according to which the market value of the collateral is 47 001 000 tenge. To assign to the private bailiff A.B. Ampkhanova the duties of eliminating in full the violation of the rights and legitimate interests of debtors Musin R.Zh. and Musina S. Defendant CHSI Ampkhanova A.B. and a third party, NEO CREDIT Micro-Credit Organization LLP, disagreed with the decision and filed appeals asking for the court's decision to be overturned and a new decision to dismiss the complaint.

Recognition of the actions of the CSI as illegal | Assignment of the obligation to eliminate violations | Violation of the rights and legitimate interests of the debtor

After listening to the representative of the defendant, the representative of a third party who supported the arguments of the appeals, having studied the case materials and the arguments of the appeals, the judicial board comes to the following conclusion. The grounds for revoking or changing a court decision on appeal in accordance with paragraph 1 of Article 427 of the CPC are: 1) incorrect definition and clarification of the range of circumstances relevant to the case; 2) lack of evidence of circumstances relevant to the case established by the court of first instance; 3) inconsistency of the conclusions of the court of first instance set out in the decision with the circumstances of the case; 4) violation or improper application of substantive or procedural law. According to paragraph 3 of this provision of the law, a substantially correct court decision cannot be overturned for purely formal reasons. There are no such grounds in the case. According to P. 11 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated March 31, 2017 No. 1 "On the application by courts of certain norms of legislation on enforcement proceedings", the issuance of a resolution on the appointment of an appraiser and the transfer of the debtor's property to auctions are the prerogative of the bailiff, as provided for in Articles 68, 74 of the Law of the Republic of Kazakhstan "On Enforcement Proceedings and the Status of Bailiffs". In accordance with Article 257 of the Civil Code, upon termination of ownership, property is assessed based on its market value in accordance with the procedure established by law. In this regard, the bailiff is obliged to take the necessary measures to ensure that the debtor's property is assessed and tendered at market value. In the event of a dispute related to the valuation of the debtor's property, the measures taken by the bailiff are subject to verification in accordance with part six of Article 250 of the CPC. The court of first instance established that by the resolution of Chsikhanova A.B. dated 07.12.2017, the evaluation of the seized property of debtor M.S.L. was entrusted to Vixonappraisal LLP.

Recognition of the actions of the CSI as illegal | Assignment of the obligation to eliminate violations | Violation of the rights and legitimate interests of the debtor

Due to the disagreement with the report of Vixonappraisal LLP No. 107-05/18 dated 06/04/2018, according to which the market value of real estate located at the address: Almaty, Turksib district, ul. X.., 16, owned by the debtor M.S.L., is 47 001 000 tenge. M.S.L. does not Agreeing with the above-mentioned report, she provided an alternative report made by the Valuation Institute LLP, according to which the market value of the property is 63,382,000 tenge. By the decree of Chsikhanova A.B. On June 22, 2018, the assessment report No. 64/2018 dated 06/14/2018, executed by the Evaluation Institute LLP, was refused to be accepted into enforcement proceedings. Thus, the ICI adopted the report of ViCon-Appraisal LLP No. 107- 05/18 dated 06/04/2018, which was confirmed in the court of first instance by the representative of the defendant, K.T. Seydakhmetov, in accordance with art. 9, 18 of the Law of the Republic of Kazakhstan "On Evaluation Activities in the Republic of Kazakhstan" dated January 10, 2018 No. 133-VI SAM, assessment report is a written document drawn up in accordance with the legislation of the Republic of Kazakhstan on evaluation activities based on the results of the assessment. Market value is the estimated amount of money for which an asset would be exchanged on the valuation date between the interested party and the seller as a result of a commercial transaction after proper marketing, in which each party would act knowledgeably, prudently and without coercion. The Court of First instance correctly indicated that the market value of the property, determined by Vixonappraisal LLP, is significantly lower than its actual value, which is also confirmed by the report of the Valuation Institute LLP. In addition, from the conclusion of specialist Kalinin A.N. No.03 dated 09/03/2018, it follows: The Report on the assessment of real estate No.107- 05/18 dated 06/04/2018, carried out by ViCon-Appraisal LLP: a) according to the section "Requirements for the preparation of the report" meets the requirements; b) according to the section "Analysis of requirements for the content and reliability of calculations" is unreliable and the results obtained cannot be used as an evidentiary basis for the amount of the value of the property indicated in the report. The report on the assessment of the real estate object No. 64/2018 dated 06/14/2018, carried out by the Evaluation Institute LLP: a) according to the section "Requirements for the preparation of the report" meets the requirements; b) according to the section "Analysis of requirements for the content and reliability of calculations" is reliable, therefore, the results obtained can be used as an evidence base on the value of the property indicated in the report. Specialist Kalinin A.N. also explained that in the report of ViXonAppraisal LLP there are numerous, including rude remarks and violations that led to a distortion of the final assessment result.

Consequently, in this case, there is a low-quality and biased assessment. Additionally, he (the evaluator) conducted a comprehensive study, which is carried out when resolving the issue of the reliability of assessment reports, based on the initial data that were used in the assessment reports. According to his own calculations, the recommended market value of the valuation object was 60,179,000 tenge. In accordance with the "Instructions for verifying the reliability of the assessment", approved by the Presidium of the RPO on 04/25/2014, the standards for the maximum allowable discrepancy between the results of the cost determined by the appraiser and the expert for the object "residential building with land in the city" should not exceed 15%. At the same time, the difference between the calculations of the expert evaluator and ViCon-Appraisar LLP (47,001 000 tenge) was 28%, Institute of Assessment LLP (63,382,000) was 5%. Thus, the report No. 64/2018 dated 06/14/2018, carried out by the Evaluation Institute LLP, is reliable. The conclusions of specialist Kalinin A.N., who is Deputy Chairman of the Presidium and Chairman of the Expert Council of the Republican Chamber of Appraisers and holds a PhD in Economics, are fully consistent with the established factual circumstances of the case. Thus, the above-mentioned expert opinion and the report of the Valuation Institute LLP No. 64/2018 dated 06/14/2018 fully confirm the applicants' arguments that the market value of the disputed property indicated in the report of ViCon-Appraisar LLP is significantly underestimated. Subsequently, when considering the sale of collateral, its initial value will not correspond to the actual market value, which will lead to a significant violation of the rights and legitimate interests of debtors. Consequently, the actions of Chsikhanova A.B. to accept a report containing false information about the value of the property are illegal. According to paragraph 4 of Article 250 of the CPC, the court, having recognized the complaint as justified, makes a decision to recognize the actions (inaction) of the bailiff as illegal and obliges him to eliminate the violation in full or restore the violated rights, freedoms or legitimate interests of the recoverer or debtor in another way. Based on the above circumstances of the case, the board considers the court's decision to satisfy the complaint of Musin R.Zh., Musina S.L. lawful and justified.

According to paragraph 2 of Article 426 of the CPC, when an appeal or protest is dismissed due to the lack of new arguments, the reasoning part of the decision indicates only the absence of grounds provided for in this Code for amending the decision of the court of first instance or its cancellation. The arguments mentioned in the appeals of the defendant and the third party were thoroughly investigated by the court of first instance, and during the consideration of the case they were given a proper legal assessment. Taking into account the totality of these circumstances, the board finds no grounds for canceling or changing the court's decision, and therefore, the arguments of the appeals of the defendant and a third party are considered untenable and subject to dismissal. Guided by Articles 423, paragraph 1 of Article 424, Articles 425-426 of the CPC, the judicial board DECIDED: The decision of the Medeu District Court of Almaty dated September 07, 2018 in this case was to leave unchanged, the appeals of the defendant and a third party were dismissed.

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