Termination of enforcement proceedings cancellation of arrests and encumbrances
When drafting a complaint against the actions of a private bailiff related to the payment of his activities, readers would like to share the judicial practice of the Law Firm Law and Law, for example, a Debtor contacted the company's office who, according to the claimant's application for termination of enforcement proceedings in connection with the passage of the refinancing program, the CSI terminated enforcement proceedings on writ of execution. Thus, earlier, the District Court, having considered in the premises of the district court in open court a civil case on the claim of Bank CenterCredit JSC to the Debtor for the recovery of the amount owed, the Court decided: To recover the amount owed from the Debtor in favor of Bank CenterCredit JSC. After receiving the writ of execution, the CSI initiated enforcement proceedings and carried out a number of actions to enforce the court decision, thus, additional collateral, non-residential premises, was sold by a private bailiff through an Auction. Subsequently, the Bank sent a statement to the CSI regarding the termination of enforcement proceedings in connection with the Debtor's passage through the refinancing program, where the CSI terminated enforcement proceedings on the above-mentioned writ of execution.
However, subsequently, the CSI by its Resolution approved the amount of payment for the bailiff's activities, which amounted to 4,000,000 tenge. The said Resolution was received by the Debtors on purpose. Subsequently, the Decision to approve the amounts of payment for the performed enforcement actions was appealed to the court, where the Debtor did not agree with the actions of the bailiff due to the following circumstances: In cases of termination of enforcement proceedings, the bailiff issues a decision on this within 24 hours. The enforcement document or its copy with the appropriate mark is sent by the bailiff to the court or other authority that issued the document. Simultaneously with the termination of the enforcement proceedings, the enforcement measures are subject to cancellation. According to enforcement documents terminated on the basis of this article, after the execution of which the enforcement sanction, execution costs, penalties and the amount of payment for the activities of a private bailiff are subject to recovery, enforcement measures are subject to cancellation only after their recovery. According to the Law of the Republic of Kazakhstan On Enforcement Proceedings and the Status of Bailiffs, Article 120. "The procedure for collecting amounts of payment for the activities of a private bailiff from a debtor" provides: If no payment has been made for the activities of a private bailiff during execution, execution costs have not been reimbursed, and advance payments made by the recoverer, the private bailiff issues and sends resolutions to the debtor on the approval of the amounts of payment for the performed executive actions. However, paragraph 2 of the said article stipulates that the execution of the enforcement document does not exempt the debtor from paying the actual costs incurred for the execution and payment for the activities of a private bailiff, if it is executed after its presentation for enforcement. That is, it is necessary to pay attention to the proposal to "pay the actual expenses incurred." And paragraph 3 of the article also indicates that the debtor's execution of the enforcement document, bypassing the private bailiff, does not exempt him from paying the actual costs incurred for the execution and payment of the activities of the private bailiff.
Most importantly, article 118 of the Law on Enforcement Proceedings and the Status of Bailiffs, "Rules for Determining the amount of payment for the activities of a private bailiff," provides that payment for the activities of a private bailiff is made from funds recovered from the debtor and is set at three to twenty-five percent, and paragraph 2 of this article clearly stipulates. Payment for the activities of a private bailiff is made only in the case of full or partial execution of the enforcement document. If the enforcement document of a property nature is partially executed, then only a part of the payment for his activities is paid to the private bailiff, in proportion to the amount recovered or the value of the property. What is specified in the Letter in detail Ministry of Justice of the Republic of Kazakhstan dated June 29, 2017 No. 3T-L-848 "On the issue of the procedure for foreclosing on employees' salaries by private bailiffs and payment for their activities" A private bailiff has the right to charge amounts for his services only in the amounts provided for in this Article and established by the Government of the Republic of Kazakhstan. A private bailiff is prohibited from changing the established amounts of payment for his activities. Thus, by abusing his official position with the above actions, the CSI violated the basic principles of enforcement proceedings, namely: legality, respect for human honor and dignity, inviolability of the minimum property necessary for the existence of the debtor and his family members.
Naturally, under such circumstances, the notification of the CSI on the approval of the amounts of payment for the performed executive actions and amounts excludes the possibility of further lifting of all arrests and fulfillment of contractual obligations. Based on the above, the court was asked to declare illegal the actions of a private bailiff to issue a resolution approving the amounts of payment for the performed enforcement actions, which amounted to 4,000,000 tenge, and also requested that the private bailiff be charged with eliminating the full extent of violations of the Debtor's rights. Based on these arguments, the Court fully satisfied the claims and restored the violated rights of the Debtor.
Attention!
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