Statement of claim for invalidation of the microloan agreement
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To the Almalinsky District Court of Almaty
267 Tole bi Street, Almaty, 8 (727)333-11-60 727-2872@sud.kz
From the Plaintiff: .......Nazym Nurlankyzy IIN .......... city of Almaty,
Kapalskaya street, 14, sq. 24 +7-708-102-80-88
The defendants: Microfinance organization "Online Kaz Finance" LLP
BIN 160840000397 Almaty, 502 Seifullin ave. post@solva.kz,
www.solva.kz 8(727) 346-89-83
ID Collect Collection Agency LLP BIN 200840024621
502 Seifullin ave., Almaty, info@idcollect.kz +7 700 003 77 33
Statement of claim
on the recognition of the loan agreement as invalid
Between Microfinance Organization Online Kaz Finance LLP (hereinafter referred to as the Defendant) and .........Nazim Nurlankyzy (Hereinafter referred to as the Plaintiff) signed a micro-loan agreement No. 1797159 dated November 11, 2019 (hereinafter referred to as the Agreement) in the amount of 2,192,000 tenge. On November 26, 2021, the borrower transferred the rights of claim under the Contract of Assignment of the Rights of Claim to ID Collect Collection Agency LLP (hereinafter referred to as the Defendant) in accordance with art. 339 of the Civil Code of the Republic of Kazakhstan, the right (claim) belonging to the creditor on the basis of an obligation may be transferred by him to another person under a transaction (assignment of a claim) or transferred to another person on the basis of a legislative act. In order to repay the debt under the Contract, the Plaintiff made payments to the Defendant's current account in the amount of 1,411,100 tenge. However, according to the latest information from the defendant, the plaintiff's debt amounts to 1,840,547 tenge: -principal debt 1,61,854.82 tenge -remuneration debt 123 140.65 tenge -penalty debt 55 552.29 tenge, thereby the defendant draws the plaintiff into bonded conditions. We would like to draw your attention to the fact that the Defendant's actions in this situation are unlawful for the following reasons:
Statement of claim for invalidation of the microloan agreement
According to art. 359 of the Civil Code of the Republic of Kazakhstan, the grounds for liability for breach of an obligation. The debtor is responsible for non-fulfillment and (or) improper fulfillment of the obligation in the presence of fault, unless otherwise provided by law or contract. The debtor is found innocent if he proves that he has taken all measures in his power to properly fulfill the obligation. According to clause 3. of Article 366 of the Civil Code of the Republic of Kazakhstan, the debtor is not obliged to pay remuneration (interest) for the time of the creditor's delay. According to article 5. The application of civil legislation by analogy is stated in cases where the relations provided for in paragraphs 1 and 2 of Article 1 of this Code are not directly regulated by legislation or agreement of the parties and there are no customs applicable to them, the norms of civil legislation governing similar relations (analogy of the law) apply to such relations, since this does not contradict their essence. If it is impossible to use the analogy of law in these cases, the rights and obligations of the parties are determined based on the general principles and meaning of civil legislation and the requirements of good faith, reasonableness and fairness (analogy of law).
Thus, Article 36 of the Law of the Republic of Kazakhstan "On Banks and Banking Activities in the Republic of Kazakhstan" and on Microfinance Organizations must be taken into account when a delay occurs in fulfilling an obligation under a bank loan agreement. The borrower must notify the borrower in the manner provided for in the bank loan agreement of the need to make payments under the bank loan agreement and the consequences of the borrower's failure to fulfill its obligations. Regarding the accrued penalties, we disagree because this amount of penalty is excessively large compared to the losses of the creditor, whereas according to the Law On Microfinance Organizations, the amount of penalty (fine, penalty) for violating the obligation to repay the loan amount and (or) payment of remuneration under a bank loan agreement concluded with an individual cannot exceed within ninety days of delay 0.5 percent of the overdue payment amount for each day of delay, after the expiration of ninety days, the delay may not exceed 0.03 percent of the overdue payment amount for each day of delay, but not more than ten percent of the loan amount for each year of the bank loan agreement." Also, in the demand for early fulfillment of obligations, we do not agree with these unreasonable amounts. In addition, after 40 days, the Lender already had the right to apply to the court with a claim for recovery of the debt amount. We believe that the Lender deliberately delayed the deadline for filing a lawsuit, thereby artificially overestimating the amount of the penalty due. According to paragraph 3, art. 725-1 of the Civil Code of the Republic of Kazakhstan, which stipulates that the rules for calculating the annual effective interest rate under a loan agreement are determined by a regulatory legal act of the authorized body for regulation, control and supervision of the financial market and financial organizations.
Statement of claim for invalidation of the microloan agreement
According to paragraphs 6, 7 of Resolution No. 197 of the Board of the National Bank of the Republic of Kazakhstan dated August 27, 2018 "On Approval of the Rules for Calculating the Annual Effective Interest Rate under the Loan Agreement", it is stipulated that the calculation of the annual effective interest rate under the loan agreement includes all payments of the borrower on the principal debt and remuneration, as well as commissions and other payments for the entire term of the loan agreement. The calculation of the annual effective interest rate under the loan agreement does not include a penalty (fine, penalty fee) for violating the obligation to repay the loan amount and (or) pay remuneration under the loan agreement. According to paragraph 2, art. 725-1 of the Civil Code of the Republic of Kazakhstan, where a loan agreement concluded with an individual borrower that does not comply with the requirements of paragraph 1 of this Article is void. In accordance with Part 1 of Article 715 of the Civil Code, under a loan agreement, one party (the lender) transfers, and in cases stipulated by the Civil Code or the agreement, undertakes to transfer ownership (economic management, operational management) to the other party (the borrower) money or things defined by generic characteristics, and the borrower undertakes to return the same amount of money to the lender in a timely manner. or an equal number of items of the same kind and quality. By virtue of clause 1 of Article 382 of the Civil Code of the Republic of Kazakhstan, the terms of the contract are determined at the discretion of the parties, except in cases where the content of the relevant condition is prescribed by law. According to clause 1 of Article 383 of the Civil Code of the Republic of Kazakhstan, the contract must comply with the rules binding on the parties, established by law (mandatory norms) in force at the time of its conclusion. By virtue of clause 1 of Article 159 of the Civil Code, a transaction made without obtaining the necessary permission is void. It follows from Clauses 2 and 3 of Articles 157-1 of the Civil Code that an invalid transaction does not entail legal consequences, except for those related to its invalidity. In these circumstances, we require the Defendant to return the funds in the amount of 0.5 MCI for the payment of the State Fee, in accordance with paragraph 7, paragraph 1, art. 610 of the Code of the Republic of Kazakhstan "On Taxes and other mandatory payments to the Budget" (Tax Code). In accordance with Part 1 of article.8 of the CPC RK, everyone has the right, in accordance with the procedure established by this Code, to apply to the court for protection of violated or disputed rights, freedoms or legitimate interests. Based on the above and in accordance with paragraph 2, art. 725-1 of the Civil Code of the Republic of Kazakhstan, I ask the Court:
To invalidate the Microcredit Agreement No. 1797159 dated November 11, 2019, concluded between Microfinance Organization Online Kaz Finance LLP and ......Nazym Nurlankyzy;
To reduce the penalty under the Microcredit Agreement No. 1797159 dated November 11, 2019, concluded between Microfinance Organization Online Kaz Finance LLP and ..........Nazym Nurlankyzy up to 10% percent;
To recover from the defendant in favor ........Nazym Nurlankyzy, the cost of paying the state duty in the amount of 2,917 tenge;
Yours sincerely,, ___________/ .....Nazym Nurlankyzy
Attention!
Law and Law Law Law draws your attention to the fact that this document is basic and does not always meet the requirements of a particular situation. Our lawyers are ready to assist you in legal advice, drawing up any legal document suitable for your situation.
For more information, please contact a Lawyer / Attorney by phone: +7 (708) 971-78-58; +7 (700) 978 5755, +7 (700) 978 5085.
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