The form of a private complaint against the court ruling on the refusal to grant a delay in the sale of real estate
To the Court of Appeal for Civil Cases
and administrative cases of the Almaty City Court legal
address: 66 Kazybek Bi str., Almaty. E-mail: 0201@sud.kz
Postal code: 050000
The applicant: .......................... IIN .................... city of Almaty,
Bostandyk district, md.. ..............., 19, sq. 67
Proxy representative: Law and Law Law Company LLP
represented by CEO Galymzhan Turlybekovich Sarzhanov.
BIN 190240029071. Almaty, 79/71 Abylai Khan ave., office 304
info@zakonpravo.kz / www.zakonpravo.kz + 7 727 978 5755; +7 708 578 5758.
PRIVATE COMPLAINT
on the definition of the Bostandyk district court of Almaty.
On June 29, 2020, the Bostandyk District Court of Almaty, composed of the presiding judge T.V. Chernysh, with the secretary of the court session, G. Asilbekov, with the participation of a representative of the defendant ............, – Sarzhanova G.T., having considered the application ................. on the postponement of the execution of the decision of the Bostandyk District Court of Almaty dated August 19, 2019, the Court determined: In satisfaction of the application ............., to postpone the execution of the decision of the Bostandyk District Court of Almaty dated August 19, 2019 - to refuse. And she motivated her ruling below as follows: By the decision of the Bostandyk District Court of Almaty dated August 19, 2019, the claims were satisfied and it was decided: To repay the debt ................................. before Bank CenterCredit JSC, foreclose on collateral in the form of an apartment consisting of three living rooms with a total area of 80.70 sq.m., located at the address: Almaty, Bostandyk district, md.Orbita-4, 19, sq.67, owned by ................. and set the initial selling price of the sale in the amount of 29,639,254 (twenty-nine million six hundred thirty-nine thousand two hundred fifty-four) tenge.
Collect on a shared basis from ..................................in favor of Bank CenterCredit JSC, the cost of paying the state fee is 1,263 (one thousand two hundred and sixty-three) tenge, that is, 421 (four hundred and twenty-one) tenge each. The decision entered into force on February 18, 2020, a writ of execution was issued and submitted for enforcement. Having heard the explanations of the persons involved in the case, having examined the case materials, the court concludes that there are no grounds for postponing the execution of the court decision on the following grounds. According to the requirements of Article 238 of the CPC, the court that reviewed the case and issued a decision has the right, at the request of the persons participating in the case, based on the property status of the parties or other valid reasons, to postpone the execution of the decision. According to the provisions of 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", on the grounds provided for in Article 238 of the CPC, the execution of a judicial act may be postponed, delayed in installments, or the method and procedure for its execution may be changed if the judicial act is not enforced in accordance with the procedure established by the provided for in Articles 143 or 241 of the CPC. As established in the court session, the court's decision is subject to compulsory execution. Consequently, the execution of the decision cannot be postponed, on the grounds provided for in Article 238 of the CPC, which entails a refusal to satisfy the application.
The form of a private complaint against the court ruling on the refusal to grant a delay in the sale of real estate
However, the Respected Appeals Board does not agree with the court's ruling, as in the current difficult times, the Borrower's family had a number of undesirable and unpleasant consequences for Borrowers and their families, both financially and morally, which caused an extremely desperate state to pay off their Loan obligations. Due to the financial difficulties of the Borrower, there have been repeated written and oral requests to the bank to provide any preferential conditions for fulfilling obligations under the Bank Loan Agreement in the hope of resolving the situation peacefully before the court order. In connection with the non-fulfillment of contractual obligations, the bank sued, after which, by a decision of the Bostandyk District Court of Almaty, the amount of debt in the amount of KZT 16,303,913 was recovered from the Debtor in favor of the Recoverer.
The plaintiff also emphasizes that the court's decision is not enforced, which is a violation of the requirements of the legislation of the Republic of Kazakhstan. And the fact that the debtor's failure to fulfill obligations to the creditor is the basis for the creditor to file claims for foreclosure on the mortgagor's property, regardless of the provisions of the Pledge Agreement. However, dear court, the defendant is taking all measures to enforce the court's decision and is fully cooperating with the recoverer and the bailiff. The Civil Procedure Code of the Republic of Kazakhstan does not contain a list of grounds for the installment execution of a judicial act, but only establishes a criterion for their determination. - circumstances that make it difficult to execute a judicial act, giving the court the opportunity in each specific case to decide on their existence, taking into account all the circumstances of the case, while respecting the balance of interests of individuals., In accordance with paragraph 23 of 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", the debtor's property status as a basis for granting him a deferral or installment payment means that the debtor cannot voluntarily or forcibly fulfill the obligation in full at one time by selling his property. property provided for in Articles 20 and 44 of the Civil Code.
Currently, the Private bailiff of the executive district of Almaty, G.S. Baykushikova, has initiated enforcement proceedings and issued a resolution on the transfer of mortgaged property for sale, which we received by mail on 06/26/2020. To date, the collateral fully covers the debt and is estimated at 34 791,983 tenge. According to the Law of the Republic of Kazakhstan On Enforcement Proceedings and the Status of Bailiffs, article 40. It provides for postponement, installments, changes in the method and procedure of execution, indexation of the amounts awarded, If there are circumstances that make the execution of enforcement actions difficult or impossible, the recoverer or the debtor or the bailiff has the right to raise the issue of changing the method and procedure of execution before the court that reviewed the case or before the court at the place of execution. The issue of postponement or installment of execution, as well as the indexation of the amounts awarded, is decided by the court at the request of the parties to the enforcement proceedings. The debtor, after the arrest and assessment of the property by the bailiff and before the seizure or sale of the property, with the written permission of the bailiff and within the time limit set by him, has the right to sell the seized property at a value not lower than the estimated value.
In connection with this, the defendant has received permission from the bailiff to sell the real estate itself. Today, the Defendant is taking all measures to sell the property. By virtue of Article 13 of the Constitution of the Republic of Kazakhstan, everyone has the right to defend their violated or disputed rights, freedoms or legally protected interests. According to the Law of the Republic of Kazakhstan On Mortgage of Immovable Property (hereinafter referred to as the Law), provided for in art. 21. The sale of mortgages in court is carried out in accordance with the 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. At the request of the pledgor, the court, if there are valid reasons, has the right to postpone its sale for up to one year in a decision on foreclosure on mortgaged immovable property in cases where: 1) the mortgagor is a citizen, regardless of which immovable property is mortgaged by him under a mortgage agreement, provided that the pledge is not related to the implementation of entrepreneurial activity by this citizen.; 2) the subject of the mortgage is a land plot consisting of agricultural land. The postponement of the sale of mortgaged immovable property does not affect the rights and obligations of the parties under the main obligation and does not release the debtor from compensation for the creditor's increased losses during the postponement, remuneration and penalties due to him. The form of a private complaint against the court ruling on refusal If the pledgor satisfies the claims of the pledgee within the time period provided to him by the postponement, the court, at the request of the pledgor, cancels this decision.
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