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The practice of considering applications for foreclosure on the debtor's immovable property in enforcement proceedings (Article 250-1 of the CPC)
By Law No. 342-VI of the SAM, the norms of the CPC are supplemented by Article 250-1, which provides for the procedure for foreclosing on the debtor's immovable property in enforcement proceedings.
In particular, in the course of compulsory execution of a court decision, if it is impossible to repay debts at the expense of other property or if the property is insufficient, the recoverer or bailiff has the right to apply to the court with an application for foreclosure on the debtor's immovable property.
Prior to the introduction of the said amendment to the CPC, the bailiff and the parties to the enforcement proceedings, on the basis of Article 246 of the CPC, applied to the court with a request to change the method and procedure for executing a court decision by foreclosing on immovable property.
Meanwhile, the method and procedure of execution actually defined by the judicial act does not change, the court only imposes foreclosure on property. In this regard, the CPC was supplemented with Article 250-1 to clarify.
The court shall consider the application within ten working days from the date of receipt of the application to the court at the location of the immovable property.
The jurisdiction of consideration of such applications is legally established.
CHSI Kairollayeva A.K. appealed to the Pavlodar City Court with an application for foreclosure on the debtor's real estate of Akmalova E.M. in order to enforce the court's decision to recover the amount owed in favor of Bank Center Credit JSC.
From the submitted materials, it has been established that the property on which the CSI requests foreclosure is in the form of an apartment in the city of Aksu, Pavlodar region.
In this regard, the CSI has the right to apply with this submission to the Aksu City Court.
Paragraph 8 of the normative resolution of the Supreme Court dated March 31, 2017 No. 1 "On the application by courts of certain norms of legislation on enforcement proceedings" clarified that foreclosure on the debtor's share of common property by dividing common property, determining a share or allocating a share in court upon the application of the bailiff or the claim of the recoverer.
By a ruling of the Pavlodar City Court dated October 28, 2020, the application of CHSI Dairova A.K. for foreclosure on 1/10 of the share of Orumbaev M.I. in the apartment was satisfied.
The court found that 1.2 million tenge was recovered from M.I. Orumbayev to the state income. By the ruling of this court, the share of M.I. Orumbaev in the apartment was determined as 1/10.
Taking into account that the judicial act has not been executed since 2017, and the debtor did not have any other property at the expense of which the court decision can be executed, the court foreclosed on 1/10 of his share in the total joint property.
Examples of refusals to satisfy applications for foreclosure on real estate.
By the ruling of the court No. 2 of the city of Uralsk, the application of Mazhitov B.M. for foreclosure on immovable property of Aydnalieva Z.G. in the form of a residential building was denied, since there are no documents on property valuation in the materials of the enforcement proceedings for the recovery of an amount in his favor in the amount of 729,475 tenge, and the court is unable to determine the proportionality of the value of the property to the size of the remaining debt the debtor.
The Karabalyk District Court of Kostanay region refused to satisfy the application of GSI Alshimbayev for foreclosure on the residential building of the Kozmin debtors in the framework of enforcement proceedings to recover in favor of the State Institution "Ministry of Labor and Social Protection of the Population of the Republic of Kazakhstan" the amount of 2,970,056 tenge. The court stated that the bailiff did not provide evidence of compliance with the requirements of Article 72 of the Law "On Enforcement Proceedings and the Status of Bailiffs" and compliance with the order of property that may be subject to foreclosure.
By the ruling of the Aktobe city Court No. 3 dated November 10, 2020, the submission of the CSI Bakhytzhanova M.N. on foreclosure on the real estate of the debtor Dzhumashev A.S. in the framework of enforcement proceedings for the recovery of alimony for the maintenance of adult children in favor of Atabayeva D.Y. was denied, since the property in the form of an apartment is the common joint property of the parties and the bailiff no measures have been taken to determine their shares.
The statement of the recoverer or bailiff in terms of content must comply with the requirements of subparagraph 1), 2), 3), 5), 7), 8) part 2 of Article 148 of the CPC (requirements to the statement of claim).
In case of non-compliance with the application of the recoverer or the bailiff submitted to the court, it is subject to return without consideration in accordance with the procedure established by part 2 of Article 152 of the CPC (procedure for returning the statement of claim).
The Ust-Kamenogorsk city Court returned the petition of CHSI Suleimenov D.Zh. to change the method and procedure for executing the court decision in accordance with Article 246 of the CPC and foreclosure on the immovable property of High Z.V.
The Court noted that the procedure for foreclosing on the debtor's immovable property by filing an application is regulated by Article 250-1 of the CPC, and not by filing a petition based on Article 246 of the CPC.
By the ruling of the Gabit Musrepov district Court of the North Kazakhstan region dated September 02, 2020, the application of the CHSI Tauekelov K.T. for foreclosure of the debtor's non-immovable property in enforcement proceedings was returned, since it does not contain information confirming the debtor's ownership of the immovable property to which the CHSI requests foreclosure.
According to the rules of this article, the recoverer's application for foreclosure on the immovable property of a pledgor who is not a debtor, or if the immovable property was acquired by the debtor under a residential mortgage loan, is not subject to consideration.
CHSI Olzhibaev R.T. applied to the court for foreclosure on the real estate of AgroKazRosKus LLP, indicating that by the decision of the Almaty District Court of Nur-Sultan dated August 31, 2017, 41,795,503 tenge was recovered from the debtor in favor of Agrarian Credit Corporation JSC.
By the ruling of the District court No. 2 of the Tayynshinsky district of the North Kazakhstan region dated December 04, 2020, on the basis of Article 21 of the Law "On Mortgage of Real Estate", the application was refused, since the property is pledged by JSC Agrarian Credit Corporation.
Not only bailiffs, but also recoverers have the right to apply to the courts in accordance with Article 250-1 of the CPC.
This provision grants the recoverer the right to independently apply to the court for foreclosure on the debtor's immovable property, without waiting for certain actions on the part of the bailiff. This will eliminate possible red tape in enforcement proceedings and discipline the debtor, limiting his ability to abuse the right by hiding property.
So, Dubin A.A. applied to the court for foreclosure of the debtor's non-immovable property in the framework of enforcement proceedings to recover in his favor from Yakimova E.G. the amount of 1,000,000 tenge and court costs.
The debtor has registered property in the form of an apartment building, the value of which has not been determined, as well as a store worth 3,000,000 tenge.
By the ruling of the district court No. 2 of the Gabit Musrepov district of the North Kazakhstan region dated December 21, 2020, the foreclosure was levied on the real estate of Yakimova E.G. in the form of a store.
By the ruling of the Baykonyr district court dated December 08, 2020, the application of the recoverer N.A. Shukeeva for foreclosure on the property of the Asyl-Arman residential complex was returned due to the location of the property in the territory of the Tselinograd district of the Akmola region.
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