Withdrawal of the Objection to the Plaintiff's Statement of Claim
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To the Turksib District Court of Almaty to Judge Iemberdieva M.M.
Republic of Kazakhstan, Almaty, 050011, Spartak St., 11. Tel: 8 727 333-13-74.
From: ..................... IIN:................... Almaty, ul.................... №172
Proxy representative: Galymzhan Turlybekovich Sarzhanov
IIN 850722301036 Almaty, 79/71 Abylai Khan ave., office 304
info@zakonpravo.kz / www.zakonpravo.kz + 7 727 978 5755; +7 700 978 5755
Review of the statement of claim
about debt collection
In your proceedings, there is a civil case No. 2-2117/2014 dated July 01, 2014 on the claim of the Bureau for Work with Debtors LLP (hereinafter referred to as the Plaintiff) to ................. (hereinafter referred to as the Defendant)., on the recovery of the amount owed. Withdrawal of the Objection to the Plaintiff's Statement of Claim, we do not agree with the Plaintiff's claims for the following reasons. On 03.01.2007, Alliance Bank JSC (hereinafter referred to as the Bank) and the Defendant entered into a Bank Loan Agreement No. 1506077-1417–EK/2007 (hereinafter referred to as DBZ), under the terms of which the Defendant received a loan in the amount of 220,000 tenge for a period of 36 months until 03.01.2010 on terms of urgency, payment and repayment. Withdrawal of the Objection to the Plaintiff's Statement of Claim In connection with the Defendant's improper fulfillment of assumed obligations On 07/29/2011, an assignment agreement was concluded between the Bank and the Plaintiff, according to which the Bank fully ceded its right of claim under the bank loan agreement to the Defendant in favor of the Plaintiff. According to the debt certificate as of 02/28/2014, the total amount of debt is: Total – 299,695 (two hundred and ninety-nine thousand six hundred and ninety-five) tenge, of which:
Withdrawal of the Objection to the Plaintiff's Statement of Claim
The principal debt is 107,589 (one hundred seven thousand five hundred eighty-nine) tenge; Remuneration is 100,275 (one hundred thousand two hundred seventy-five) tenge; Penalty is 91,831 (ninety one thousand eight hundred thirty-one) tenge; At the time of filing the claim, the defendant's debt amounted to 299,695 tenge. In accordance with Part 3 of Article 365 of the Civil Code of the Republic of Kazakhstan, "The debtor is not considered overdue until the obligation cannot be fulfilled due to the delay of the creditor." In accordance with Part 1 of Article 359 of the Civil Code of the Republic of Kazakhstan. "The debtor is responsible for non-fulfillment and (or) improper fulfillment of obligations in the presence of fault, unless otherwise provided by law or contract. The debtor is found innocent if he proves that he has taken all measures in his power to properly fulfill the obligation." Also, in accordance with Part 1 of Article 364 of the Civil Code of the Republic of Kazakhstan, "If non-fulfillment or improper fulfillment of obligations occurred due to the fault of both parties, the court accordingly reduces the amount of liability of the debtor." In an article in the Legal Gazette dated February 17, 2011, written by such prominent statesmen as: M. Alimbekov, former Chairman of the Supreme Court of the Republic of Kazakhstan and D. Tumabekov. judge of the Supreme Court of the Republic of Kazakhstan, it says that - QUOTE: " ... banks, microfinance and lending organizations do not submit timely demands to the court to recover from the borrower the amount owed on the principal debt, remuneration (interest), as a result of which the amounts of penalties (penalties) to be collected are deliberately increased, which ultimately leads to an increase in the amount of total debt and foreclosure on collateral property, the value of which is disproportionate to the loan received."
We believe that the employees of the Bureau for Work with Debtors LLP deliberately delayed going to COURT in order to plunge the Borrower into larger debts. Thus, the Plaintiff refers to art. 272 of the Civil Code of the Republic of Kazakhstan, the obligation must be performed properly in accordance with the terms of the obligation and the requirements of the law, and in the absence of such conditions and requirements - in accordance with business practices or other commonly imposed requirements, although he does not fulfill obligations in full and to the terms of the contract, which raises doubts about conscientious fulfillment of obligations. In support of the words according to art. 728 p. 6. of the Civil Code of the Republic of Kazakhstan. If the borrower violates the deadline set for repayment of the next part of the loan item and (or) payment of remuneration for more than forty calendar days. That is, according to this paragraph of the Civil Code of the Republic of Kazakhstan, the plaintiff should have gone to court in 2011, and not as in 2014, based on the above, we observe the creditor's guilt. According to art. 359 of the Civil Code of the Republic of Kazakhstan, the grounds for liability for breach of an obligation. The debtor is responsible for non-fulfillment and (or) improper fulfillment of the obligation in the presence of fault, unless otherwise provided by law or contract. The debtor is found innocent if he proves that he has taken all measures in his power to properly fulfill the obligation. According to clause 3. of Article 366 of the Civil Code of the Republic of Kazakhstan, the debtor is not obliged to pay remuneration (interest) for the time of the creditor's delay.
According to article 5. The application of civil legislation by analogy is stated In cases where the relations provided for in paragraphs 1 and 2 of Article 1 of this Code are not directly regulated by legislation or agreement of the parties and there are no customs applicable to them, the norms of civil legislation governing similar relations (analogy of the law) apply to such relations, insofar as this does not contradict their essence. If it is impossible to use the analogy of law in these cases, the rights and obligations of the parties are determined based on the general principles and meaning of civil legislation and the requirements of good faith, reasonableness and fairness (analogy of law). Thus, Article 36 of the Law of the Republic of Kazakhstan "On Banks and Banking Activities in the Republic of Kazakhstan" and on Microfinance Organizations must be taken into account when a delay occurs in fulfilling an obligation under a bank loan agreement. The borrower must notify the borrower in the manner provided for in the bank loan agreement of the need to make payments under the bank loan agreement and the consequences of the borrower's failure to fulfill its obligations. In terms of accrued penalties, they disagree because this amount of penalty is excessively large compared to the creditor's losses whereas according to art. 35 of the Law on Banks and Banking Activity states "The amount of the penalty (fine, penalty fee) for violating the obligation to repay the loan amount and (or) pay remuneration under a bank loan agreement concluded with an individual may not exceed 0.5 percent of the overdue payment amount for each day of delay, after ninety days of delay. ninety days of delay may not exceed 0.03 percent of the overdue payment amount for each day of delay, but not more than ten percent of the loan amount for each year of the bank loan agreement." Also, in the demand for early fulfillment of obligations, we do not agree with the above unreasonable amounts. In addition, after 40 days, the plaintiff already had the right to apply to the court with a claim for recovery of the debt. We believe that the Plaintiff intentionally delayed the deadline for filing a lawsuit, thereby artificially overestimating the amount of the penalty due. According to art . 297 of the Civil Code of the Republic of Kazakhstan if the penalty to be paid is excessively large in comparison with the creditor's losses, the court has the right to reduce the penalty, taking into account the degree of fulfillment of obligations by the debtor and the debtor's interests that deserve attention, the court reduces the debtor's liability if the creditor intentionally or negligently contributed to an increase in the amount of losses caused by non-performance or improper performance, or did not take reasonable measures to reduction.
Withdrawal of the Objection to the Plaintiff's Statement of Claim
Taking into account the date of assignment of the claim in 2011 and the date of filing the Claim with the court, more than 3 years have passed and we consider that the Plaintiff has missed the general statute of limitations. The statute of limitations is the period of time during which a claim may be satisfied that has arisen from violations of a person's right or a legally protected interest. calculations are provided for by law and cannot be changed by agreement of the parties in accordance with art. 177 of the Civil Code of the Republic of Kazakhstan. Provided for in Article 178 of the Civil Code of the Republic of Kazakhstan, paragraph 1. The specified General limitation period is set at three years. Also according to Art. 179. The claim for the protection of the violated right is accepted for consideration by the court regardless of the expiration of the limitation period, and the limitation period is applied by the court only upon the application of the party to the dispute made before the court's decision. The expiration of the limitation period before the filing of a claim is the basis for the court's decision to dismiss the claim. The Universal Declaration of Human Rights (articles 7, 8 and 10), the International Covenant on Civil and Political Rights (article 14) and the Convention for the Protection of Human Rights and Fundamental Freedoms (article 6) establish that everyone is equal before the law and the courts and that everyone has the right to a fair trial in determining their civil rights and duties. and the public hearing of the case within a reasonable time by a competent, independent and impartial court established by law. Based on the above, we believe that the amount of the Defendant's debt should be calculated in accordance with the principles of good faith, reasonableness and fairness, therefore, it is necessary to take into account all the above circumstances.
The court must take into account the difficult financial situation of the defendant and the unreasonable inaction of the Bureau for Work with Debtors LLP for a long time, which led to an excessive increase in the penalty and make a decision in accordance with the principles of good faith, reasonableness and fairness. On the basis of the above, I request and in accordance with art. 166 of the Civil Procedure Code of the Republic of Kazakhstan,
I ASK THE COURT:
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.
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