The pawnshop's claim to the debtor-mortgagor for foreclosure on the collateral

 

Writ proceedings are a simplified judicial procedure for the consideration by a judge of indisputable claims filed by the recoverer against the debtor, the list of which is provided for by law.

The list of requirements for which a court order is issued is provided for in Article 135 of the CPC RK.

The applicant's application for a court order is accompanied by documents attesting to the pawnshop deposit. When issuing a court order, the courts are guided by the provisions of art. 140 of the CPC. The jurisdiction of cases considered by writ is determined by chapter 3 of the Code of Civil Procedure.

Writ proceedings are initiated on the basis of a pawnshop claimant's appeal to the court with an application for the recovery of monetary amounts from the debtor for undisputed claims.

The means of initiating a case in accordance with Part 1 of Article 136 of the CPC RK is an application for a court order. The requirements for the form and content of an application for a court order are provided for in art. 136 of the CPC RK.

According to paragraph 4 of Article 136 of the CPC RK, the requirement must be based on authentic documents.

In writing, the claimant indicates his claim and the circumstances on which it is based. Documents confirming the stated requirement are attached to the application. For the analyzed category of cases, a genuine mortgage is attached to the application.

Article 138 of the CPC RK regulates the issues of refusal to accept and return an application for a court order. This means that not every claim submitted to the court is the subject of judicial protection.

The judge refuses to accept or returns the application for a court order on the grounds provided for in Articles 151, 152 of the CPC RK. In addition, in accordance with Part 1 of Article 138 of the Civil Procedure Code of the Republic of Kazakhstan, the judge returns the application in cases where the claimed claim is not provided for in Article 135 of the Civil Procedure Code of the Republic of Kazakhstan; the debtor is outside the jurisdiction of the courts of the Republic of Kazakhstan; documents confirming the claimed claim have not been submitted; there is a dispute about the law that cannot be resolved on the basis of the submitted documents; the form and the contents of the application do not comply with the requirements of art. 136 of the CPC RK.

Judge of the Bostandyk District Court of Almaty by a ruling dated 05/22/2015. The application of L "B" LLP for issuing a court order to recover from TK.L. the debt on the pledge ticket in the amount of 4778334 tenge, 71675 tenge – the state duty by applying for the collateral item – an Audi – 07 car was returned with the attached documents.

The reason for the return of the application is the non–compliance of the application with the requirements of clause 5, clause 1, Article 141 of the CPC. In accordance with the provisions of paragraph 10 of Article 140 of the CPC, a court order is issued if the pawnshop claims against the debtor – mortgagor to foreclose on the collateral.

According to the above statement, the pawnshop requested a court order to recover the amount of the pledged property by applying for collateral. If deficiencies that can be eliminated are identified in the application, the judge has the right to set a time limit for their elimination for the recoverer. However, this period may not exceed three days. If the claimant resolves the identified deficiencies within the prescribed period, the application is considered submitted. If the claimant fails to comply with the judge's requirements to eliminate the identified deficiencies, a ruling is issued on the refusal to accept the application.

An application for a court order is considered by a judge within three days from the date of receipt of the application to the court.

The court order, which is the result of consideration of the applicant's indisputable claim, has a double legal meaning, namely, it is an act of the judge to consider the relevant application and an executive document.

The content of the court order is determined by art. 140 of the CPC RK. It must include the following:

production number and date of the order;

name of the court, surname and initials of the judge who issued the order;

the name, place of residence or location of the claimant;

name, place of residence or location of the defendant;

the law on the basis of which the claim is satisfied;

the amount of money to be recovered;

the amount of the penalty, if its recovery is provided for by law or contract;

the amount of the state fee to be collected from the defendant in favor of the recoverer or to the local budget;

terms and procedure for appealing a court order.

In accordance with Article 141 of the CPC RK, a copy of the court order is sent to the debtor immediately with a notice of delivery.

The terms and procedure for appealing a court order are regulated by art. 141 of the CPC RK. According to this provision of the law, the debtor has the right, within ten days from the date of receipt of a copy of the court order, to send an objection to the stated claim to the court that issued the order using any means of communication.

 

 

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