Complaint against the decision of a private bailiff to approve the amount of payment for his activities
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To the Bostandyk District Court of Almaty, Almaty, Bostandyk district,
050043, md. Orbita - 2, 20a from: Xxxxxx xxxxxx xxxxxx IIN XXXxxxxxxx
Proxy representative: Law and Law Law Company LLP
BIN 190240029071 Almaty, Medeu district, 050000, 79/71 Abylai Khan ave., office 304.
info@zakonpravo.kz / www.zakonpravo.kz + 7 (708) 578 5758
defendant: Private bailiff of the executive district of Almaty city
gr. ......... License No. 1510 dated 10.10.2014 Almaty, 69A Satpayev str., office 305 +7 702 837 36 31
Claim
on the resolution of a private bailiff on the approval of the amounts of payment for his activities
On October 01, 2018, the District Court No. 2 of Almaly district of Almaty, chaired by Judge Kadyrov A.Kh., with the secretary of the court session gr. ............, with the participation of the plaintiff's representative, Bank RBK JSC – gr. ........... (hereinafter referred to as the Recoverer), defendant gr ......... (hereinafter referred to as the Debtor), his representative – gr. ........., He considered in open court the petitions of the parties for approval of the mediation agreement during the execution of the court's decision in civil case No. 7520-18-00-2/15538, and DETERMINED: The petition of the plaintiff's representative, Bank RBK JSC - gr. ......A.J., by proxy, defendant gr. ……... P.G., his representative, gr........ G.R., on approval of the mediation agreement at the stage of execution of the decision of the district court No. 2 of the Almaly district.Almaty, dated August 24, 2018, in a civil case on the claim of Bank RBK JSC against gr. ........., with the participation of a private bailiff gr........ on foreclosure on mortgaged property, the Court Determined a Mediation agreement to satisfy.
Complaint against the decision of a private bailiff to approve the amount of payment for his activities
September 23, 2020 gr. ......... P.G. appealed to a private bailiff to terminate the enforcement proceedings, as the Recoverer did not take any action to terminate the enforcement proceedings. Enforcement proceedings in connection with debt repayment and in accordance with clauses 2-1, clause 2, Article 47 of the Law of the Republic of Kazakhstan "On Enforcement Proceedings and the Status of Bailiffs" (hereinafter referred to as the Law), enforcement proceedings were terminated due to the conclusion by the parties of an Agreement on the settlement of a dispute (conflict) through mediation. On the same day, the Bailiff issued a Resolution approving the amounts of payment for the activities of a private bailiff (hereinafter referred to as the Resolution), by which he approves the amount of payment for the activities of a private bailiff in the amount of 1,596,617 tenge. Dear Court, we disagree with the Decision to approve the amounts of payment for the activities of a private bailiff for the following reasons: In accordance with paragraph 2 of Article 118 of the Law, payment for the activities of a private bailiff is made only in the case of full or partial execution of the enforcement document. If the enforcement document of a property nature is partially executed, then only a part of the payment for his activities is paid to the private bailiff, in proportion to the amount recovered or the value of the property. What is specified in detail in the Letter of the Ministry of Justice of the Republic of Kazakhstan dated June 29, 2017 No. 3T-L-848 "On the issue of the procedure for foreclosing on employees' salaries by private bailiffs and payment for their activities." Also in accordance with paragraph 3 of art. 118 of the Law, a private bailiff has the right to charge amounts for the payment of his services only in the amounts provided for in this article and established by the Government of the Republic of Kazakhstan. A private bailiff is prohibited from changing the established amounts of payment for his activities. According to paragraph 1 of the Resolution of the Government of the Republic of Kazakhstan dated May 4, 2014 No. 437 "On approval of the amount of payment for the activities of a private bailiff", the amount of payment for the activities of a private bailiff under property (monetary) executive documents in the amount of up to 60 MCI is set at 25% of the recovery amount.
Complaint against the decision of a private bailiff to approve the amount of payment for his activities
We would like to point out that the Debtor does not refuse to pay the costs incurred by the Bailiff when performing enforcement actions, in case of documentary confirmation of the costs incurred. According to Article 113 of the Law, the costs of performing enforcement actions are the budgetary funds spent on their organization and conduct, the funds of the parties to the enforcement proceedings, and other persons and organizations involved by the bailiff in the execution process. The costs of performing executive actions include the funds spent on: 1) identification, inspection, assessment of the debtor's property; 2) organization and conduct of an inventory and seizure of the debtor's property, transportation and storage of such property; 3) organization of the sale of seized property; 4) payment for translators, specialists and other persons involved in the prescribed manner to perform enforcement actions; 5) transfer (forwarding) to by mail to the recoverer of the collected amounts; 6) bank expenses related to the disbursement of the collected amounts from the cash control account and the current account; 7) search for the debtor; 8) advance payment of the recoverer; 9) travel of the bailiff when performing enforcement actions on all types of public transport - urban, suburban and local communications (except taxis), including payment of travel expenses of bailiffs; 10) other necessary actions during the execution of the enforcement document;
Complaint against the decision of a private bailiff to approve the amount of payment for his activities
11) other remuneration to persons involved by the bailiff in the course of execution. In accordance with paragraph 4 of Article 114 of the Law, the recovery of expenses for the performance of enforcement actions and their reimbursement to the body or person who incurred the costs are carried out on the basis of a decision of the state bailiff approved by the head of the territorial department, a senior bailiff, or a decision of a private bailiff and documents confirming the costs incurred. Thus, the decision of the Bailiff issued in violation of the requirements of the law on determining the amount of payment for the activities of a private bailiff is illegal. In accordance with paragraph 1 of Article 250 of the Code of the Republic of Kazakhstan dated October 31, 2015 No. 377-V "Civil Procedure Code of the Republic of Kazakhstan" (hereinafter referred to as the Code) for the actions (inaction) of a bailiff to execute enforcement documents, including challenging tenders, in the course of enforcement proceedings or for refusal to commit such A complaint may be filed against the actions of the recoverer or the debtor.; The complaint is filed with the district (city) court of the territorial area served by the bailiff or at the place of registration of a private bailiff within ten working days from the date of the action (refusal to perform the action) or from the day when the recoverer or debtor, who was not notified of the time and place of the action by the bailiff, became aware of it. The complaint is filed at the place where the enforcement actions are performed, if the territorial area served by the bailiff or the place of registration of a private bailiff are located in the same locality as the place where the enforcement actions were performed; A preliminary appeal to higher authorities and to a higher official in the order of subordination does not prevent the filing of a complaint to the court.
Complaint against the decision of a private bailiff to approve the amount of payment for his activities
According to paragraph 3 of Article 250 of the Code, the court, having recognized the complaint as justified, makes a decision to recognize the actions (inaction) of the bailiff as illegal and obliges him to eliminate the violation in full or restore the violated rights, freedoms or legitimate interests of the recoverer or debtor in another way; A copy of the decision is sent to the judicial authorities for territorial jurisdiction; If these actions may If the violations can only be committed by a bailiff, the court sets in the decision a time limit within which the violations committed must be eliminated. In accordance with paragraph 1 of Article 8 of the Code, everyone has the right, in accordance with the procedure established by this Code, to apply to the court for protection of violated or disputed rights, freedoms or legitimate interests. According to paragraph 1 of Article 13 of the Code, justice in civil cases is carried out on the basis of equality of all before the law and the court. Based on the above, I ask the Court:
To recognize the illegal actions of a private bailiff gr. ........A. B., on the imposition of a Ruling from 23.09.2020 informed about the approval of payment of a private enforcement agent in the amount of 1 596 617 (one million five hundred ninety-six thousand six hundred seventeen tenge) ;
To assign to the private bailiff gr......... A.B., the duty to eliminate in full the violations of the Debtor's rights.
Sincerely, Proxy Representative __________/ Sarzhanov G.T. "___" ____________2020 the year.
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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