Signing a mediation agreement by resolving the conflict and softening the positions of the parties
On November 7, 2019, the Kostanay City Court, composed of judge Kadyrova B.I., considered civil case No. 3910-19-00-2/8615 on the claim in the premises of the Kostanay City Court in a simplified procedure..... Natalia Valentinovna (Hereinafter Referred To As the Recoverer) to ....... Ramil Nailovich (Hereinafter Referred To As The Defendant), The Judge Decided to satisfy Zagainova N.V.'s Statement of claim. To recover from ...... R.N., in favor of ...... NV, the principal debt of 1,000,000 tenge; penalty of 27,002 tenge; court costs, in total amount of 1,070,050 tenge. In connection with the improper execution of the Kostanay City Court's decision, the court issued writ of execution No. 3910-19-00-2/8615-1 dated December 18, 2019, on the basis of which Private bailiffs of Kostanay Li E.I., enforcement proceedings were initiated.414/19-39-1751 dated December 25, 2020 on recovery from ..... R.N., in favor of ...... NV, the amount of 1,070,050 tenge. Subsequently, the Recoverer submits an application for a change in the method of execution of the court, which was registered under No.2m/7898, thus the Recoverer explains in his statement as follows: The defendant does not take any measures aimed at executing the court decision, and therefore I consider it necessary to foreclose on the debtor's property. To change the procedure and method of execution of the Kostanay City Court's decision by foreclosing on the Defendant's real estate, namely a garden house with a built-up area of 94.0 sq.m. with a land plot with a total area of 0.0947 hectares. located at the address: Kostanay, SO PKSO "Khimik", 3rd quarter, 44. The claimant notes that the court's decision is not being enforced, which is a violation of the requirements of the legislation of the Republic of Kazakhstan - dear Court, they do not agree with the Claimant's requirements because: the Defendant is taking all measures to enforce the court's decision and the Defendant is fully assists the judicial officer in the execution of a judicial act. To date, the Borrower pays monthly according to his financial ability.
Signing a mediation agreement by resolving the conflict and softening the positions of the parties
At the moment, the Defendant has been laid off at work due to the well-known state of emergency, which is a well-known fact introduced by the Decree of the President of the Republic of Kazakhstan dated March 15, 2020 "On the introduction of a state of emergency in the Republic of Kazakhstan" and does not need to be proved. Despite the crisis and the difficult financial situation caused by the worldwide pandemic, the Defendant has repeatedly made and is making payments on the debt, which confirms the following payment receipts:
payment receipt dated 22/01/2020 in the amount of 20,000 (twenty thousand) tenge;
payment receipt dated 11/02/2020 in the amount of 200,000 (two hundred thousand) tenge;
payment receipt dated 16/03/2020 in the amount of 20,000 (twenty thousand) tenge;
payment receipt dated 13/04/2020 in the amount of 20,000 (twenty thousand) tenge;
payment receipt dated 08/06/2020 in the amount of 20,000 (twenty thousand) tenge;
receipt of payment dated 07/14/2020 in the amount of 20,000 (twenty thousand) tenge;
payment receipt dated 08/17/2020 in the amount of 50,000 (fifty thousand) tenge;
receipt of payment dated 17/09/2020 in the amount of 20,000 (twenty thousand) tenge;
payment receipt dated 20/10/2020 in the amount of 20,000 (twenty thousand) tenge;
As a result, as of 10/22/2020, the repayment amount for the debt is 390,000 (three hundred and ninety thousand) tenge, and the remaining amount of the debt is 680,050 tenge. Dear Court, when considering the Claimant's Application, we ask you to take into account the fact that this Defendant's garden house is the only property, as evidenced by the certificate of ownership. Foreclosure on the Defendant's sole property is premature. Whereas in accordance with art . 72 of the Law "On Enforcement proceedings and the status of bailiffs" violated the order of foreclosure on the property of an individual. We believe that the actions of the Claimant are aimed at a principled nature, despite the fact that the Claimant is the Defendant's own sister. The issue is not just to collect the amount owed from the Defendant, but to deprive the Defendant of the only real estate. The Recoverer claims that the Defendant does not comply with the court's decision properly, but we believe that both the Recoverer and the Civil Protection Service did not carry out sufficient coercive measures in accordance with the regulations and the Administrative Code of the Republic of Kazakhstan. The law states that after the initiation of enforcement proceedings, the bailiff must carry out all actions related to the identification of the debtor's property, including cash, movable and immovable property. According to the requirement of article 55 of the Law "On Enforcement Proceedings", foreclosure on enforcement documents is applied primarily to the debtor's monetary amounts. If the debtor does not have sufficient sums of money to repay the debt, foreclosure is levied on other property belonging to the debtor. If the debtor's other property is insufficient, foreclosure may be levied on his property, the value of which exceeds the amount of the foreclosure under the enforcement document. However, practice shows that bailiffs do not always comply with this requirement. The Supreme Court has introduced amendments and additions to the regulatory resolution "On certain issues of the application of legislation on enforcement proceedings."
In particular, paragraph 6 is worded as follows: "When considering complaints about the actions of bailiffs and claims for the protection of property rights of third parties in the process of executing enforcement documents, it should be borne in mind that enforcement of enforcement documents is primarily directed at the debtor's money, including those held in banking institutions, from third parties. If the debtor does not have enough money to repay the debt, foreclosure is applied to other property. Actions to foreclose on property are carried out according to the rules provided for in article 40 of the Law "On Enforcement Proceedings". In Article 317 of the Civil Code of the Republic of Kazakhstan. It is indicated that foreclosure on the pledged property may be refused if the violation of the obligation secured by the pledge committed by the debtor is extremely insignificant and the amount of the claims of the pledgee as a result is clearly disproportionate to the value of the pledged property. The violation is extremely insignificant and the amount of the pledgee's claims is clearly disproportionate to the value of the pledged property, while the following conditions are met: the amount of the unfulfilled obligation (excluding penalties (fines, penalties) is less than ten percent of the value of the property. On 04/10/2020, a private bailiff, Li E.I., issued a resolution on the participation of a property valuation specialist and the execution of this resolution was entrusted to the Appraisal Company Stella+ LLP. According to the report No. 224/09/20 dated September 14, 2020 of the Appraisal Company Stella+ LLP, the value of the debtor's real estate amounted to 3,930,000 tenge. We do not agree with the assessment of the Appraisal Companies of Stella+ LLP, as the market value is estimated incorrectly and unreliably, as well as unfairly underestimated, since each house located in this area is individual and requires a detailed approach. According to paragraph 18 of Article 1 of the Law of the Republic of Kazakhstan "On Valuation Activities", market value is the estimated amount of money for which an asset would be exchanged on the valuation date between an interested party and a seller as a result of a commercial transaction after proper marketing, in which each of the parties would act being knowledgeable, prudent and without coercion.
It is established that when the appraiser determines the market value of the property, only the comparative method and cost methods are used, and the revenue method is not used. According to paragraph 21, paragraph 2 of the Valuation Standard "Valuation of real estate", approved by the Decree of the Government of the Republic of Kazakhstan dated February 12, 2013 No. 124, the comparative approach provides for the following sequence of valuation procedures: 1) collecting and analyzing information on the sale or offer of similar real estate and determining the objects of comparison; 2) choosing a method for calculating the value of the appraised object, taking into account the volume and reliability of the available information; 3) comparing the appraised object with the objects of comparison, followed by adjusting the sale price or the offer price of the objects of comparison; 4) determining the value of the appraised object by taking into account the amount of corrective adjustments to the value of the objects of comparison; 5) agreeing on the calculation results. At the same time, in the analyzed report, as part of the cost calculation using the comparative approach, there is no justification for the applied adjustments (amendments) with the objects of comparison. In addition, in accordance with the requirements of the Valuation Standard, the report does not provide a detailed calculation of the value of the object, limiting itself to the data indicated in the calculation table of the report, which is a violation of the requirements of the valuation standard. When deducing the total cost, there is no justification for giving weight coefficients to the results obtained by the comparative method, and the hierarchy analysis method recommended in the methodological literature has not been used. According to paragraph 20 of the Valuation Standard, it is stated that the amount of accumulated depreciation of real estate is equal to the totality of physical, functional and external (economic) depreciation. When deducing the total cost, the appraiser did not specify the percentage of house wear, since when evaluating a property with physical wear, the appraiser must take note of the specified coefficient.
Signing a mediation agreement by resolving the conflict and softening the positions of the parties
Thus, as we can see, there is a poor-quality and biased assessment. The main principles of evaluation activities are objectivity and reliability, which is not respected during the evaluation. These violations affect the interests of the Defendant, since the valuation is carried out on the property by right of ownership for the purposes of court bidding, which implies possible alienation at market prices. In accordance with Article 257 of the CPC, upon termination of ownership, property is assessed based on its market value. In this case, the Defendant believes that a poor-quality and biased assessment affects the interests of the Defendant, since the repayment of the debt on the receipt due to the existing single housing is of primary importance to the Defendant. Dear court, to this day, since receiving the Assessment from the CSI, it is not possible for us to make an Alternative Assessment since the Debtor does not have a Purchase and Sale Agreement, respectively, we do not have an alternative assessment report since the appraisal companies of Kostanay requires a purchase and sale agreement for this house to evaluate the property and determine the value. But at the same time, Stella+ LLP made an assessment without a purchase and sale agreement. In accordance with art. 8 of the CPC RK, everyone has the right to apply to the court for protection of violated or disputed constitutional rights, freedoms or protected interests. In accordance with Article 15 of the Civil Procedure Code of the Republic of Kazakhstan, the parties choose their position, ways and means of defending it independently and independently of the court, other bodies and persons during civil proceedings.
The Universal Declaration of Human Rights (articles 7, 8 and 10), the International Covenant on Civil and Political Rights (article 14) and the Convention for the Protection of Human Rights and Fundamental Freedoms (article 6) establish that everyone is equal before the law and the courts and that everyone has the right to a fair trial in determining their civil rights and duties. and the public hearing of the case within a reasonable time by a competent, independent and impartial court established by law. Based on the above and in accordance with the Civil Code of the Republic of Kazakhstan and the Law "on Enforcement Proceedings and the Status of Bailiffs", the Court was asked to: Natalia Valentinovna's application for foreclosure on property in the form of a garden house with a built-up area of 94.0 sq.m. with a land plot with a total area of 0.0947 ha. located at the address: Kostanay, SO PKSO "...", ..., 44 – to leave without satisfaction; To enable the Borrower to execute the court decision voluntarily and conclude a Mediation agreement. During the court hearing on October 28, 2020, the Plaintiff ....... Natalia Valentinovna IIN ...., hereinafter referred to as "Party − 1" and the Defendant ...... Ramil Nailovich IIN ...., hereinafter referred to as the Party - 2, we have concluded this Mediation Agreement on the following: The Parties have concluded a mediation agreement on civil case No. 3910-19-00-2/8615, as well as on material No.2m/7898 on the application of Party -1 to Party -2 for the recovery of the amount owed in the amount of 1,070,050 tenge, where the remaining debt currently amounts to 575,050 tenge, and there are arrears in payment for the activities of the CSI in the amount of 160,507.5 tenge, as well as for the costs of property valuation in the amount of 30,000 tenge, for the conclusion on the technical inspection of the building structure of the country house 90,000 tenge, for postage 930 tenge. As a result, the amount of debt on enforcement proceedings amounted to 856,487.5 tenge. In order to resolve the conflict, each Side has softened its position, and the Parties want to formalize the resolution of disputes through settlement through the signing of a Mediation Agreement. The parties (the plaintiff, the defendant and the third party) have agreed on the following:
Party-1, in connection with the conclusion of this Mediation Agreement, completely waives its stated requirements to Party-2 and undertakes to write a statement to CHSI Li E.I., (hereinafter referred to as the Third Party) about the transgression of enforcement proceedings No.414/19-39-1751 in connection with the conclusion of a mediation agreement.
In connection with the conclusion of this Mediation Agreement, Party-2 fully agrees that, within 2 (two) months from the date of approval by the court of the mediation agreement, it undertakes to return the remaining amount of debt under the court decision, which amounts to 575,050 tenge to Party -1.
The -2 Party undertakes to pay the amount owed for the activities of a Third Party, Private Bailiff Li E.I., which amounts to 160,507.5 tenge, after repayment of the amount owed by the court decision.
The -2 Party undertakes to pay the amount of arrears on expenses of CHSI Li E.I., which amounts to 120,930 tenge, after repayment of the amount of arrears by court decision.
The parties were informed of the consequences of the conclusion and approval by the court of a Mediation agreement and the termination of proceedings provided for in Articles 277-278 of the CPC RK, namely, in the event of termination of proceedings, a second appeal to the court on a dispute between the same parties, on the same subject and on the same grounds is not allowed.
The -1 Party to the -2 Party's application for recovery of the amount owed by a court decision in the amount of 1,070,050 tenge does not have the right to re-apply to the court for the above-mentioned Claims.
The Parties confirm that the conclusion of this Mediation Agreement does not contradict the law and does not violate anyone's rights, freedoms and legitimate interests.
The text of this Settlement Agreement has been studied and read by the Parties, the agreement is drawn up in four copies, one for each party and one copy for submission to the court for approval and storage in the materials of this civil case.
The parties, in accordance with the requirements of Articles 174-178 of the Civil Procedure Code of the Republic of Kazakhstan, request the presiding judge in the case in which this civil case is pending to approve this Mediation Agreement and terminate the proceedings, attach this Mediation Agreement to the materials of the civil case.
This Mediation Agreement is subject to execution based on the principles of voluntariness and good faith of the Parties.
If this Agreement is not voluntarily executed, it is subject to compulsory execution on the basis of a writ of execution issued by the court at the request of the person who concluded this mediation agreement.
Thus, the parties came to a Mediation agreement, which was approved by the court through mutual concessions of the parties.
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