Response to the CSI's petition for a change in the execution of the court decision
To Almaly District Court No. 2 of Almaty
267 Tole bi str., Almaty, Republic of Kazakhstan.
From the Debtor: ………
IIN ...........
Almaty, ul. ............., D. .........., sq. 5.
8 701 ……………….
Representative by proxy:
Sarzhanov Galymzhan Turlybekovich
IIN: 850722301036.
Almaty, Medeu district,050002,
50 Zhibek Zholy Ave., office 202, Business center Block.
info@zakonpravo.kz / www.zakonpravo.kz
+ 7 (708) 578 57 58.
Applicant: Private bailiff
Executive district of Almaty city
………..
IIN ……………
Republic of Kazakhstan, Almaty,
St. ............, 90, office 215.
Phone: +7 701 ……………
A third party who does not declare independent
Requirements: In JSC "Bank Center Credit"
BIN 9806400093
Republic of Kazakhstan, 050026,
248 Bogenbai Batyr St., Almaty.
Review of the Petition
on changing the method and procedure of execution of the enforcement document
Q, do you have a civil case on changing the order and method of execution of a court decision at the request of a Private bailiff of the executive district of Almaty city ............... ( further - HSI) to ....................... (hereinafter referred to as Debtors). For which a Private bailiff: .................., motivates his demands that September 14, 20.... year between Bank Center Credit JSC and gr. ......... A loan agreement was concluded, under the terms of which a loan in the amount of 49,190,000 tenge was issued for a period of 18 months. In order to ensure the fulfillment of obligations stipulated in the bank loan agreement, a mortgage agreement was concluded on September 15, 2009, as well as additional agreements No. 1 dated September 29, 2009, under which non-residential premises were provided as collateral, part of the Letter A office located at ...... street in Almaty. 280. In addition, a guarantee agreement was concluded with LLP ".............", according to which the latter has assumed the obligation to jointly and severally answer to the bank for the debtor's fulfillment of obligations to the same extent as the debtor.
Dear Court, the loan was acquired by the Debtor as a mortgage loan dated September 15, 20..... year, as evidenced by the relevant agreements. Accordingly, thanks to the support and foresight of our Nation's Leader. Nursultan Nazarbayev, the guarantor of statehood and defender of all citizens of the Republic of Kazakhstan, was instructed to adopt a program for refinancing mortgage housing loans/mortgage loans for his compatriots in need. In order to implement the instructions of the Head of State. The Government and the National Bank of the Republic of Kazakhstan have adopted a program for refinancing residential mortgage loans. This Program assumes that government support will be provided to citizens who received mortgage housing loans/mortgage loans in the period from 2004 to 2009 secured by collateral. The allocated funds will be used to ease the conditions for servicing residential mortgage loans and do not involve writing off debts of problem borrowers.
"In this regard, the National Bank has sent a letter to banks with a recommendation to suspend the procedures for evicting borrowers who potentially meet the criteria being developed, as well as to revoke writ of execution submitted to public and private bailiffs for debt collection through the sale of mortgaged housing and the eviction of borrowers/mortgagors from property. However, until today, the CSI and the Recoverer have not proposed the above-mentioned program to the Debtor. In connection with this, we have sent a corresponding Application for passage under the refinancing program to the bank on 02/11/20... year.
Your Honor, we consider the CSI's request to change the procedure and method of execution of the enforcement document to be groundless and illegitimate, since the loan to the debtor was originally issued as a Mortgage loan. According to art. 21. The Law of the Republic of Kazakhstan On mortgage of real estate "Mortgage sale in court" provides for:
The sale of a mortgage in court is carried out in accordance with a court decision on the claim of the mortgagee. In this case, the sale of real estate, which is the subject of a mortgage, is carried out by selling at public auction in accordance with the procedure established by procedural legislation.
Foreclosure on property mortgaged under a mortgage agreement may be refused if the violation of the basic obligation committed by the debtor is extremely insignificant and the amount of the mortgagee's claims as a result is clearly disproportionate to the value of the mortgaged property. What is specified in detail in the Information Letter of the Advisory Council on the Development of a unified judicial practice in the Administration of Justice of the Karaganda Regional Court dated April 4, 2012 "On the application of the Law "On Mortgage of Real Estate" when considering cases of claims by banks against borrowers for early recovery of the loan subject"
When making decisions on foreclosure on real estate mortgaged under a mortgage agreement, the court must determine and indicate in the decision:
1) all amounts payable to the mortgagee from the value of the pledged property, with the exception of the costs of protection and sale of immovable property, which are determined upon completion of its sale. For amounts calculated as a percentage, the amount for which remuneration is accrued, the amount of remuneration and the period for which they are due must be indicated; 2) the real estate that is the subject of the mortgage, from the value of which the mortgagee's claims are satisfied; 3) the initial sale price of the mortgaged real estate upon its sale; 4) measures to ensure the safety of immovable property until its sale, if necessary.
Also in 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", in paragraph 10. The issue of foreclosure on property that is collateral for the obligation of a mortgage housing loan, as well as on the subject of collateral belonging to a third party (the real surety), is subject to consideration by the court in a separate lawsuit on the claim of the mortgagee for foreclosure on the mortgaged property in accordance with the requirements of Article 21 of the Law of the Republic of Kazakhstan dated December 23, 1995. No. 2723 "On mortgage of real estate". That is, the CSI is not a party to the enforcement proceedings, which is specified in more detail in art. 15. The Law on Enforcement Proceedings ... "Parties to enforcement proceedings" where provided for:
The parties to the enforcement proceedings are the recoverer and the debtor.
The recoverer is a natural or legal person in whose favor or in whose interests the enforcement document has been issued.
The debtor is a natural or legal person who is obliged to fulfill the requirements stipulated in the executive document.
Regarding the Foreclosure of mortgaged property, the Civil Protection Act provides for in Article 57 of the above-mentioned law "Foreclosure of Mortgaged property":
Foreclosure may be levied on the pledged property if the debtor's other property is insufficient to fully satisfy all claims against it that are not secured by collateral, in compliance with the rights of the pledgee established by the civil legislation of the Republic of Kazakhstan.
If the debtor's non-pledged property is insufficient to satisfy the claims of recoverers who do not have the right to pledge the debtor's property, foreclosure on the pledged property, with the exception of property that is collateral for secured bonds and real estate that is collateral for a mortgage loan obligation, may be applied in the interests of non-mortgagees of recoverers, the claims of which have precedence over the claim of the pledgee, based on the court ruling. A court ruling on foreclosure on mortgaged property is issued at the request of the bailiff at a court hearing, notifying the pledgee, the recoverer and the debtor of the time and place of the court session. The sale of property is carried out according to the rules for the sale of mortgaged property. In this case, the claims are satisfied from the value of the sold property in the order of priority established by articles 110-112 of this Law.
Foreclosure on mortgaged property, with the exception of real estate that is collateral for a mortgage loan obligation, is allowed in order to satisfy the claims of the recoverer(s) that do not have an advantage over the claim of the mortgagee, if there is no other property that can be foreclosed on in order to satisfy the claims of these recoverers, or such property is insufficient. In this case, foreclosure on the mortgaged property is allowed by court ruling in compliance with the rights of the mortgagee.
In its Petition, the CSI requests the Court to: Determine and indicate the initial sale price for the debtor's real estate at 280 Tole Bi Street in Almaty in the form of non-residential premises, part of the Dieter A. office. On this circumstance, the case is in Almalinsky District Court No. 2 of Almaty, in a civil case. №..........., A complaint is being considered against the action of a Private bailiff to refuse to accept an alternative assessment report because: Private bailiff of the executive district of Almaty .............., a resolution was issued on 25.09.20..... on the participation of a specialist in the assessment of seized property and the execution of this assessment resolution was entrusted to the appraisal company LLP "Appraisal and Consulting Company.....", which on October 04, 20 ... conducted an inspection of the evaluation facility for non-residential premises located at the address: Almaty, Auezovsky district, St......, d....., 13th floor. According to Report No...... dated October 05, 20.... of the Year of Evaluation companies, LLP " Evaluation and Consulting Company ".......", The debtor's collateral amounted to 94,082,000 tenge. Which we received on December 20.... years.
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