Recognition of the illegal actions of a private bailiff | Complaint against the actions of the CSI | Appeal against the actions of the bailiff
On September 7, 2018, the Medeu District Court of Almaty considered the case in open court, a civil case, at the request of the GRM, addressed to the Private Bailiff of the executive district of Almaty, U.A.B, (hereinafter Chsikhanova A.B.). Third parties: Limited Liability Partnership "Micro-credit organization "NEO CREDIT" (hereinafter – LLP "Micro-credit organization "NEO CREDIT"); LLP "Vixonappraisal". At the request of the applicant about:
Recognizing as illegal the actions of the private bailiff A.B. Surkhanova on the adoption of the assessment report No. 107-05/18 dated 06/04/2018, carried out by Vicon Appraisal LLP, according to which the market value of the collateral is 47 001 000 tenge.
Imposing on the private bailiff A.B. Steppkhanov the obligation to eliminate in full the violations of the rights of debtors.
Thus, by the decision of the Permanent Arbitration Court of Almaty dated March 2, 2016, the total amount of KZT 17,118,308 was recovered from the GRM of M.S.L. in favor of the Micro-credit Organization "NEO CREDIT" LLP. By the ruling of the Turksib District Court of Almaty dated May 6, 2016, a writ of execution was issued in accordance with the above-mentioned decision of the Arbitration Court. By the resolution of Chsikhanova A.B. dated October 24, 2017, enforcement proceedings were initiated No.3491/17-75-3173 on recovery from MR., MS.L. in favor of MKO Neo Credit LLP of the amount of debt in the amount of KZT 17,118,308. On December 7, 2017, Chsikhanova A.B. issued a resolution on the participation of a specialist in the assessment of seized property and the execution of the resolution was entrusted to the appraisal company "Vixonappraisal" LLP.
Recognition of the illegal actions of a private bailiff | Complaint against the actions of the CSI | Appeal against the actions of the bailiff
According to the report of Vixonappraisal LLP No. 107-05/18 dated 06/04/2018, the market value of real estate located at the address: Almaty, Turksib district, ul. X...., 16, owned by debtor M.S.L., is 47 001 000 tenge. Disagreeing with the estimated value determined by Vixonappraisal LLP, the debtors submitted a statement dated June 19, 2018 to Chsikhanova A.B. an alternative report on the valuation of real estate for No. 64/2018 dated 06/14/2018, carried out by the Valuation Institute LLP, according to which the market value of the specified property is 63,382,000 tenge and asked to take it into enforcement proceedings. By the resolution of Chsikhanova A.B. dated June 22, 2018, the application of the representative of the joint debtors M.R. and M.S.L. for acceptance into enforcement proceedings of the assessment report No. 64/2018 dated 06/14/2018, executed by the Evaluation Institute LLP, was refused. The applicants applied to the court with petitions for the restoration of the procedural time limit for appealing the actions of a private bailiff, having considered which the court comes to the following conclusion. By virtue of art. 250 h.h. 1, 6 of the Civil Procedure Code of the Republic of Kazakhstan, a complaint is filed with the district 3 (city) court of the territorial area served by the bailiff or at the place of registration of a private bailiff within ten working days from the date of the action (refusal to perform the action) or from the day when the recoverer or debtor, not notified of the time and place of the action by the bailiff, it became known about him. The actions of the bailiff related to the valuation of property, as well as the acceptance or refusal to accept a report on the valuation of property, may be appealed in accordance with the procedure established by this article. As established by the court, the debtors received the report of ViCon-Appraisal LLP No.107- 05/18 dated 06/04/2018 on June 11, 2018. Within the limits of their rights, on June 19, 2018, the debtors applied to a private bailiff and submitted an alternative report on the valuation of real estate, which was rejected by the decision of June 22, 2018.
Initially, Mr. Zh. the complaint was filed with the Medeu District Court of Almaty on June 26, 2018. His complaints were subsequently returned by the court twice, due to procedural shortcomings. At the same time, the court considers that these circumstances cannot be an obstacle to re-applying to the court for protection of their rights and legitimate interests. Considering the stated circumstances and the requirements of art. 13 para. 2 of the Constitution of the Republic of Kazakhstan, according to which everyone has the right to judicial protection of their rights and freedoms, the court considers it possible to recognize as valid the reason for missing the deadline for appealing the actions of a private bailiff (from the moment of receiving the report dated June 11, 2018), and restore this deadline. At the hearing, the applicants' representative by proxy, G.T. Sarzhanov, supported the arguments of the complaint and asked them to satisfy them. Representative of the private bailiff A.B. Amplkhanova. according to the power of attorney, K.T. Seydakhmetov, not recognizing the claims of the complaint, asked to refuse to satisfy them, as he considers the disputed actions legitimate. The representative of ViCon-Appraisal LLP, by proxy, V.F. Zheba, confirming the authenticity of report No. 107-05/18 dated 06/04/2018, requests that a lawful decision be made on the case. A.N. Kalinin, Chairman of the Expert Council of the Republican Chamber of Appraisers, who was involved in the case as a specialist, confirmed the arguments of his conclusion No. 03 dated September 3, 2018. Involved in the case as a third party, the recoverer of NEO CREDIT Micro-Credit Organization LLP, having been notified of the time and place of the court session, did not appear in court, did not inform the court about the reasons for his non-appearance and did not ask for consideration of the case without his participation. Having recognized the reason for the claimant's non-appearance as disrespectful, the court considers it possible to consider the case in accordance with art.196 part 4 of the CPC RK. By virtue of the requirements of 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.
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. Therefore, 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 found that by the decision of Chsikhanova A.B. On 07.12.2017, the evaluation of the seized property of the debtor M.S.L. was entrusted to Vixonappraisal LLP. Due to disagreement with the report of Vixonappraisal LLP No.107- 05/18 dated 06/04/2018, the debtors provided an alternative report. However, by the resolution of Chsikhanova A.B. dated June 22, 2018, the acceptance into enforcement proceedings of the assessment report No. 64/2018 dated 06/14/2018, executed by the Evaluation Institute LLP, was refused. This circumstance indicates that the private bailiff accepted the report of ViCon-Appraisal 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 debtor M.S.L., is 47 001 000 tenge.
Recognition of the illegal actions of a private bailiff | Complaint against the actions of the CSI | Appeal against the actions of the bailiff
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 the amount of the value of the property indicated in the report. During the trial, specialist Kalinin A.N. Having fully confirmed his conclusion, he explained that the report of Vixonappraisal LLP contains numerous, including rude remarks and violations, which led to a distortion of the final 6 assessment results. 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 appraiser specialist and ViCon-Appraisar LLP (47,001 000 tenge) amounted to 28%, the Institute of Evaluation LLP (63,382,000) amounted to 5%. Thus, the report No. 64/2018 dated 06/14/2018, carried out by the Evaluation Institute LLP, is reliable. The court finds all 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, sound, since they are fully consistent with the established factual circumstances of the case. At the same time, Zheba V.F., Deputy Director of ViCon-Appraisar LLP, was unable to refute the conclusions of the expert Kalinin A.N.'s conclusion and provide any evidence during the trial. 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. upon acceptance of a report containing false information about the value of the property, they are illegal. By virtue of Article 3 of the Law of the Republic of Kazakhstan "On Enforcement Proceedings and the status of Bailiffs", enforcement proceedings are conducted on the principles of legality, freedom of appeal in the 7th court of procedural actions and decisions of the bailiff. The circumstances established by the court indicate that the private bailiff violated these principles, as well as he failed to fulfill the obligations to take the necessary measures to ensure that the debtor's property was assessed and tendered at market value. The court finds the arguments of the representative of Chsikhanova A.B. that the debtors did not appeal the report of ViCon-Appraisar LLP in accordance with the procedure established by law, and therefore the present complaint is subject to denial of satisfaction, untenable. In accordance with art. 250 h. 6 of the Civil Procedure Code of the Republic of Kazakhstan, the actions of a bailiff related to the valuation of property, as well as the acceptance or refusal to accept a report on the valuation of property may be appealed in accordance with the procedure established by this article. As follows from the meaning of this rule, debtors have the right to appeal against the actions of the bailiff in accepting the assessment report, and therefore this complaint has been filed within the framework of the rights granted to them. During the consideration of the present case, the court has the right to assess the reliability of the evaluation report of ViCon-Appraisar LLP, since this issue does not go beyond the basis and subject of the complaint. According to the rules of art. 250 Part 4 of the CPC RK, 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. Taking into account the factual circumstances of the case, assessing the evidence presented in its entirety, the court considers it necessary to satisfy the present complaint and recognize the actions of the private bailiff A.B. Surkhanova. on the adoption of the assessment report No. 107-05/18 dated 06/04/2018, carried out by Vicon-Appraisal LLP. At the same time, the court considers it necessary to assign to the private bailiff of the executive district of Almaty, A.B. Surkhanova, the responsibility to eliminate in full the violation of the rights and legitimate interests of debtors, Mr.J. and M.S.
Recognition of the illegal actions of a private bailiff | Complaint against the actions of the CSI | Appeal against the actions of the bailiff
The court does not give any assessment to the actions of a private bailiff to refuse to accept the assessment report No. 64/2018 dated 06/14/2018, carried out by the Evaluation Institute LLP, since this issue does not relate to the subject of the complaint. This issue must be resolved by the bailiff again in accordance with the requirements of current legislation as part of the elimination of violations of the rights and legitimate interests of debtors. Guided by Articles 223-226, 250 of the CPC RK, the court Decided: To satisfy the complaint of M.R.Zh., MSL. To recognize as illegal the actions of the private bailiff A.B. Surkhanova on the adoption of the assessment report No.107- 05/18 dated 06/04/2018, carried out by Vicon-Appraisal LLP, according to which the market value of the collateral is 47 001 000 tenge. To assign to the private bailiff A.B. Steppkhanova the duties to eliminate in full the violation of the rights and legitimate interests of debtors M.R.Zh. and M.S.
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