The initial estimated value of mortgaged real estate has been increased when sold through an auction.
On February 8, 2018, the Judicial Board for Civil Cases of the Almaty Regional Court with the participation of the representative of the defendant BP - Sarzhanov G.T., having considered in open court in the building of the Almaty Regional Court, a civil case on the claim of Eurasian Bank JSC against BAP, a third party who does not make independent claims, on the subject of a dispute to a private Marat Kuttybayuly, the bailiff of the Almaty region, Myrzabaev, about foreclosure on mortgaged property received on the appeal of the defendant BA.P. on the decision of the Talgar District Court of the Almaty region dated August 23, 2017. The plaintiff JSC "Eurasian Bank" filed a lawsuit against BA.P., a third party who does not declare independent claims, on the subject of dispute to the private bailiff of the Almaty region, M.K. Myrzabaev, on foreclosure on mortgaged property in the form of non-residential premises with a total useful area of 764.00 sq.m., with a land plot of 0.4144 square meters. ha, with cadastral number 03-051-197-..., located at: Almaty region, Talgar district, .... rural district, with....., Kozhakhanova St., ug. Mamytova, to collect from B.A.P. in favor of JSC "Eurasian Bank" a state fee in the amount of 1,134.5 tenge. In substantiation of the claim, the plaintiff indicated that on the basis of the Bank Loan Agreement No. F17/262/2007 dated July 3, 2007, concluded between BP and JSC Eurasian Bank, the borrower was provided with a loan in the amount of 75,600,000 tenge. To ensure proper fulfillment of obligations by the borrower under the Mortgage Agreement No. F17/262/2007/2 on May 8, 2008, she pledged non-residential premises with a total area of 764.00 sq.m., with a land plot of 0.4144 ha, with cadastral number 03-051197-561, located at: Almaty region, Talgar district, ... rural district, with..... Due to the fact that the borrower violated its obligations within the time limits set by the agreement, the Bank is forced to go to court. By the decision of the district court no.2 Auezovsky district, Almaty, dated May 27, 2011, the claim of Eurasian Bank JSC against B.A.P., K.O.Yu. and S.O.N. partially satisfied with the recovery of the debt amount, 99,987,183 tenge was recovered in solidarity with BA.P., CO.Y. in favor of Eurasian Bank JSC. The counterclaim by BA.P., SHO.N. for invalidation of the mortgage agreement was denied. The decision came into force on September 22, 2011. On April 17, 2014, a writ of execution was issued, which is currently under compulsory execution at the Office of Myrzabaev M.K. Thus, the execution of the judicial act is impossible and today the court decision has not been executed. To date, the debt owed to the Bank amounts to 94,003,431,006 tenge. According to the report No. 1.0977 dated May 2, 2017, provided by the NOC of BTK LLP, the estimate is 67,352,000 tenge. By the decision of the Talgar District Court of the Almaty region dated August 23, 2017, the claim of Eurasian Bank JSC was satisfied, it was decided: to foreclose on the mortgaged property belonging to BA.P. in the form of non-residential premises with a total usable area of 764.00 sq.m., with a land plot of 0.4144 ha, cadastral number 03-051-197- .., located at: Almaty region, Talgar district, ... rural district, with..., Kozhakhanova St., ug.ul.Mamytova; to collect from B.A.P. in favor of JSC "Eurasian Bank" a state fee in the amount of 1,134.5 tenge.
The initial estimated value of mortgaged real estate has been increased when sold through an auction.
In the appeal, the defendant B.A.P. asks the decision of the court of first instance to cancel and make a new decision to dismiss the claim of JSC Eurasian Bank for foreclosure on the mortgaged property, indicating that the mortgaged property, non-residential premises, is currently an operating kindergarten "...". According to the protocol on the results of the competition dated August 1, 2017, ..Kindergarten... LLP, located at 96 Sultan Street, Almaty, is a potential supplier and is included in the list for placing a state educational order for preschool educational organizations. In its response to the appeal filed by defendant A.P. Bayanova, the plaintiff, Eurasian Bank JSC, requested that the judicial act remain unchanged, and the appeal filed by defendant A.P. Bayanova be dismissed. At the meeting of the appellate instance, the representative of the defendant B.A.P. - Sarzhanov G.T., having supported the arguments of the appeal, asked the judicial act to cancel and make a new decision to dismiss the claim of Eurasian Bank JSC for foreclosure on the mortgaged property. After listening to the explanations of the defendant's representative, examining the case materials, and the arguments of the appeal of the defendant B.A.P., the judicial board for civil cases believes that the decision of the court of first instance should be left unchanged, and the appeal of the defendant B.P. should be dismissed on the following grounds. It follows from the case file that according to the Bank Loan Agreement No. F17/262/2007 dated July 3, 2007, concluded between B.A.P. and JSC Eurasian Bank, the borrower was provided with a loan in the amount of 75,600,000 tenge. To ensure proper fulfillment of obligations by the borrower under the Mortgage Agreement No. F17/262/2007/2 on May 8, 2008, she pledged non-residential premises with a total area of 764.00 sq.m., with a land plot of 0.4144 ha, with cadastral number 03-051197-561, located at: Almaty region, Talgar district, .. rural district, with..... Due to the fact that the borrower violated its obligations within the time limits set by the agreement, the Bank appealed to the court. The final decision of the district court No .2 Auezovsky district, Almaty, dated May 27, 2011, the claim of Eurasian Bank JSC against B.A.P., K.O.Yu. and S.O.N. for debt collection was partially satisfied, jointly with B.A.P., K.O.Yu. 99,987,183 tenge was recovered in favor of Eurasian Bank JSC. The counterclaim by B.A.P., S.O.N. for invalidation of the mortgage agreement was denied. The decision came into force on September 22, 2011.
This court decision, by virtue of part 2 of Article 76 of the Civil Procedure Code of the Republic of Kazakhstan, is of prejudicial importance in resolving this dispute. In pursuance of the judicial act that entered into force on April 17, 2014, a writ of execution was issued, which is currently being enforced by the CHSI Myrzabaev M.K. The Court of First Instance reliably established that today the defendant's debt to the Bank amounts to 94 003 431,006 tenge. According to the report No. 1.0977 dated May 2, 2017, provided by the NOC of BTK LLP, the valuation of the disputed property is 67,352,000 tenge. To objectively verify the arguments of the appeal against the existing kindergarten, the board appointed a forensic construction and commodity examination to determine the market value of the kindergarten "...", located at 96 Beybarys Sultan str., Almaty region, Talgar district, village of ..., with a land plot of 0.4144 hectares, with a cadastral number 03-051-197-.... From the conclusions of the expert opinion No.6945 dated January 24, 2018 of the Institute of Forensic Examinations in Almaty, it follows that the market value of the kindergarten "..", located at 96 Beybarys Sultan str., Almaty region, Talgar district, village ..., with a land plot of 0.4144 hectares, with cadastral number 03-051-197- 561 at As of the time of the study, it may amount to 84,554,594 tenge. By virtue of paragraph 3 of Article 12 of the Constitution of the Republic of Kazakhstan, a citizen of the Republic, by virtue of his very citizenship, has rights and duties. Paragraph 5 of this provision of the Basic Law states that the exercise of human and civil rights and freedoms should not violate the rights and freedoms of others, infringe on the constitutional order and public morality. According to paragraph 1 of article 14 of the Constitution, everyone is equal before the law and the court. According to paragraph 2 of Article 299 of the Civil Code of the Republic of Kazakhstan, the pledge of enterprises, buildings, structures, apartments, rights to land and other immovable property (mortgage) is regulated by the Mortgage Act. The general rules on collateral contained in the Civil Code apply to mortgages in cases where the Mortgage Law does not establish other rules. According to article 21 of the Law of the Republic of Kazakhstan "On Mortgage of Immovable Property", the sale of a mortgage in court is carried out in accordance with a 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. In accordance with paragraph 1 of Article 317 of the Civil Code, foreclosure on pledged property in order to satisfy the claims of the pledgee (creditor) may be levied in the event of non-fulfillment or improper fulfillment by the debtor of the obligation secured by the pledge for which he is responsible. According to paragraph 2 of the said article, 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 pledgee's claims as a result is clearly disproportionate to the value of the pledged property.
The initial estimated value of mortgaged real estate has been increased when sold through an auction.
The Law of July 17, 2015 amended paragraph 2 of Article 317 of the Civil Code as follows. The violation of the obligation secured by the pledge 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:: 1) the amount of the unfulfilled obligation (excluding penalties (fines, penalties) is less than ten percent of the value of the pledged property determined by the parties in the pledge agreement; 2) the period of delay in fulfilling the obligation secured by the pledge is less than three months. The norms of Article 321 of the Civil Code establish a specific list of cases of early fulfillment of an obligation secured by a pledge and foreclosure on pledged property and cannot be considered as additional grounds for early fulfillment of obligations. Thus, it follows from paragraph 1 of Article 321 of the Civil Code that the pledgee has the right to demand early fulfillment of the obligation secured by the pledge in the following cases:: 1) if the pledged object has left the possession of the pledgor, from whom it was left, not in accordance with the terms of the pledge agreement; 2) violation by the pledgor of the rules on the replacement of the pledged object (Article 314 of this Code); 3) loss of the pledged object due to circumstances for which the pledgee is not responsible (paragraph 2 of Article 313 of this Code), if the pledgor has not exercised the right provided for in paragraph 2 of Article 314 of this Code; 4) foreclosure on the pledged object in in order to fulfill the pledgor's obligations under enforcement documents to third parties who do not have an advantage over the pledgee's claim, in the absence of the pledgor's other property. According to paragraph 2 of Article 321 of the Civil Code, the pledgee has the right to demand early fulfillment of the obligation secured by the pledge, and if his claim is not satisfied, to foreclose on the subject of the pledge in the case of: 1) violation by the pledgor of the rules on subsequent pledge; 2) failure by the pledgor to fulfill the obligations provided for in subitems 1 and 2 of paragraph 1 and paragraph 2 of Article 312 of this Code; 3) violation by the pledgor of the rules on the disposal of pledged property (paragraph 2 of Article 315 of this Code); 4) violation by the pledgor of the obligation secured by the pledge (Articles 317, 720 and 722 of the Civil Code, Article 20 of the Mortgage Law) (this subparagraph was supplemented by the Law of July 17, 2015).
The initial estimated value of mortgaged real estate has been increased when sold through an auction.
Thus, the above-mentioned norms of civil legislation regulate the procedure for foreclosure on pledged property. In such circumstances, the board finds the Bank's claims for foreclosure on collateral sound. The Board found that the defendant, in violation of the requirements of Article 21 of the CPC, despite the binding nature of the judicial act, the court's decision to recover a sum of money in the amount of 99,987,183 tenge, has not been executed since 2011, the plaintiff claims that the defendant's debt to the Bank amounts to 94,003,431,006 tenge. The defendant has not provided acceptable and relevant evidence indicating the payment of the debt in violation of the requirements of Article 72 of the CPC. The market value of the disputed real estate object was established by the Court of appeal in the amount of 84,554,594 tenge, according to the expert examination. Therefore, the board considers it necessary to determine the starting value of the disputed real estate object in the amount of 84,554,594 tenge, which should be supplemented by the reasoning and operative parts of the decision of the court of first instance. The panel finds the arguments of the defendant's appeal against the cancellation of the court's decision with a new decision to dismiss the claim to be untenable, since, since 2011, the defendant has not taken reasonable measures to repay the debt owed to the Bank and to execute the judicial act that entered into force. Therefore, the collegium does not see any grounds for revoking the judicial act. The court has observed the norms of substantive and procedural law. The court, guided by subparagraph 1) of Article 424, subparagraph 1) of Article 425, Article 426, Article 431 of the Civil Procedure Code of the Republic of Kazakhstan, the judicial board DECIDED: The decision of the Talgar District Court of the Almaty region dated August 23, 2017 should remain unchanged. To add the following words to the motivational and operative parts of the decision of the court of first instance: "To determine the starting value of the mortgaged property in the form of a kindergarten "Fairy Tale", located at 96 Beybarys Sultan str., Almaty region, Talgar district, village ..., with a land plot of 0.4144 hectares, 7 cadastral number 03-051-197-... in the amount of 84 554 594 . tenge. Thus, we increased the starting cost for the sale of collateral from 67,352,000 tenge to 84,554,594 tenge.
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