The complaint about the actions (inaction) of the bailiff was considered by the court in the general claim proceedings when it was necessary to be guided by the norms of the Law "On Enforcement Proceedings and the Status of Bailiffs"
P. filed a lawsuit with the State Institution "Department for the Enforcement of Judicial Acts of Astana city", the state bailiff A., JSC "B" with the involvement of third parties M., JSC "N" to declare the auction of December 14, 2011 for the sale of a store with a land plot invalid. By the decision of the Almaty District Court of Astana dated June 13, 2012, which was left unchanged by the decision of the Appellate Judicial Board of the Astana City Court dated August 08, 2012, P.'s claim was satisfied. The auction for the sale of a store with a land plot, held on December 14, 2011, was declared invalid. By the decision of the Cassation Judicial Board of the Astana City Court dated October 09, 2012, the court's decision and the decision of the Appellate judicial Board remained unchanged. At the hearing, the representative of the winner of the bidding, M. disagreeing with the judicial acts that took place in the case, he asks the judicial acts to cancel and make a new decision to dismiss the claim of P. The court found that the decision of the specialized interdistrict Economic Court of Astana dated October 15, 2010, which entered into force, recovered from P. in favor of JSC "N" the amount of debt is 65,722,839 tenge and the state duty is 1,972,392 tenge. Foreclosure was levied on the pledged property – a store with an area of 279.40 square meters.m. with a land plot of 0.0175 hectares, owned by P. with the determination of the amount of 67,695,231 tenge payable to the plaintiff. The initial sale price of the mortgaged real estate has been set at the time of its sale in the amount of 71 572 200 tenge.
The bailiff of the Department for the Enforcement of Judicial Acts of Astana, Zh., issued resolutions dated January 21, 2011 on the initiation of enforcement proceedings and the adoption of measures to ensure the enforcement of enforcement proceedings. According to the decision of the bailiff dated February 18, 2011, the auction for the sale of the debtor's property using the English method, scheduled for February 16, 2011, was declared invalid. After agreeing with the recoverer JSC "N", by a resolution dated May 11, 2011, the bailiff appointed a specialist in real estate valuation. According to the report dated May 12, 2011, the cost of a store with a land plot was 57,407,281 tenge. The auction, scheduled for July 15, 2011, did not take place. According to the protocol dated December 14, 2011, M. was recognized as the winner of the repeat auction, the property was sold for 28 703 641 tenge. When deciding to declare the specified auctions for the sale of the debtor's property invalid, the courts were motivated by the fact that the bailiff violated the requirements of the law on enforcement proceedings. According to the courts, there is no information about the announcement of the upcoming auction in print media in the enforcement proceedings. There is no information about the offer to the claimant to keep the property for himself at a price reduced by 20%. The bailiff did not take into account the fact that the debtor expressed disagreement with the valuation of the property in the amount of 57,407,281 tenge. The evidence of an unreliable valuation, according to the court, is that more than six months have passed since the valuation was carried out and before the property was sold at auction. The bailiff improperly ordered a repeat auction four months after the initial one.
The complaint about the actions (inaction) of the bailiff was considered by the court in the general claim proceedings when it was necessary to be guided by the norms of the Law "On Enforcement Proceedings and the Status of Bailiffs"
One of the grounds for satisfying the claim was the absence in the materials of the enforcement proceedings of the bailiff's decision on the appointment of the auction, the protocol on the failed auction and the decision on the recognition of the auction, failed (according to the English method). The Supervisory Judicial Board annulled the judicial acts in the civil case. The case was sent for a new hearing to the same court in a different composition on the following grounds.The case materials established that, pursuant to the decision of the Specialized Economic Court of Astana dated October 15, 2010, bailiff A. Two enforcement proceedings have been initiated. At the same time, A. explained in court that he had forgotten these decisions in other enforcement proceedings and expressed his willingness to submit the materials of the enforcement proceedings to the court. All documents have been submitted by the courts of first instance and appeal, but they have been left unexplored and without proper assessment. Moreover, in a letter dated July 18, 2011, the claimant was asked to leave the specified property at a price reduced by 20% from the initial estimate. Thus, the courts' conclusions that the absence of these acts of the bailiff significantly violates the rights of P. do not correspond to the case file and are unfounded. In addition, the case file contains information about the announcement of the upcoming auctions in the periodical press, namely in the "Legal Gazette" dated February 04, July 04 and December 02, 2011. This circumstance was also ignored by the court.
Recognizing the auction as invalid, the court referred to paragraph 2 of Article 85 of the Law "On Enforcement Proceedings and the Status of Bailiffs" indicating that the bailiff violated the deadline for repeated auctions. However, this conclusion of the court also does not correspond to the materials of the civil case. According to these materials, the bailiff, guided by the requirements of paragraph 12 of article 42 of the said Law, is forced to first suspend and then resume proceedings at the request of the claimant. In addition, the courts violated the procedure for considering disputes in this category. Whereas the plaintiff, P. essentially challenging the actions of the bailiff, the courts must be guided by the provisions of the Law of April 02, 2010 "On enforcement proceedings and the status of bailiffs." According to paragraph 5 of Article 10 of the aforementioned Law, the decision of the bailiff is subject to mandatory execution and can be appealed to the court in accordance with the civil procedure legislation of the Republic of Kazakhstan. According to the mentioned norm of the CPC, the claims of P. must be considered in the order of appeal against the actions of the bailiff. Thus, the law establishes a procedural time limit for appealing against the actions (omissions) of the bailiff. According to the requirements of part 1 of Article 126 of the CPC, complaints and documents filed after the expiration of the procedural period, unless a request for restoration of the missed period is filed, are not considered by the court and returned to the person to whom they were submitted. These circumstances have not been investigated by the court. Moreover, P.'s claims were considered by the court in the general claim proceedings, that is, with the application of the law, which is not subject to application. Within the meaning of P.'s claims, the court asked the court, recognizing the auction as illegal, to oblige the bailiff to conduct a repeat auction. However, the court left this claim of the plaintiff essentially unresolved. The conclusions of the Cassation Judicial Board of the Astana City Court that the recognition of these auctions as invalid does not deprive the enforcement authorities of the right and does not exempt them from bidding on the property that has been foreclosed by the court, and that M. It is also entitled to participate in auctions with the offset of the amount paid in case of victory in them, it cannot be recognized as a resolution of the claim of P. essentially in full. According to the requirements of article 83 of the Law "On Enforcement Proceedings and the Status of Bailiffs", according to the auction results, after payment of the value of the acquired property, a purchase and sale agreement is concluded with the buyer of the property at auction. The specified agreement is the basis for the registration by the buyer of the ownership right (transfer of ownership) to receive property from the state authorities. According to M.'s representative, the ownership of the disputed property is registered with him.
Consequently, in order to resolve P.'s claim for the recovery of property and the holding of repeated auctions, the court must examine, in accordance with the established procedure, the legality of the concluded purchase and sale agreement in order to ensure the protection of the rights of interests of both P. and M. by explaining to the plaintiff his right to change the subject and the basis of the claim in accordance with Article 49 of the CPC. In such circumstances, the supervisory judicial board considered the author's allegations of a violation of M.'s interests to be noteworthy. as a bona fide acquirer, since the court has not resolved the issues of protecting his interests by applying the consequences of invalidating the transaction, which are provided for by the norms of Article 157 of the Civil Code. The norms of paragraph 3 of Article 261 of the Civil Code have also not been taken into account, according to which the confiscation of property on the grounds specified in paragraph 1 of this Article is not allowed if the property is sold in accordance with the procedure established for the execution of court decisions. Thus, the courts of the first, appellate and cassation instances incorrectly determined and clarified the range of circumstances relevant to the case, as well as incorrectly applied the norms of substantive and procedural law, which, according to the requirements of paragraphs 1) and 4) of part 1 of Article 364 of the CPC, is the basis for the cancellation of the court decision.
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.
Attorney at Law Almaty Lawyer Legal Services Legal Advice Civil Criminal Administrative Cases Disputes Protection Arbitration Law Firm Kazakhstan Law Office Court Cases
