Petition to the court for suspension of the bailiff's actions
To the Medeu District Court of Almaty
Republic of Kazakhstan, Almaty,
______________________.
from the Applicant: ______________________
IIN №______________________.
______________________IIN ______________________
about. at the address of Almaty, ______________________.
Representative by proxy:
Sarzhanovgalymzhanturlybekovich
IIN: 850722301036.
Almaty, Medeu district,050002, Zhibekzholy ave.,
50, office 202, Business center Block.
info@zakonpravo.kz / www.zakonpravo.kz
+ 7 (708) 578 57 58.
Defendant: Private bailiff
Executive district of Almaty city
______________________IIN ______________________.
050000, the Republic of Kazakhstan, the city of Almaty, ______________________.
tel.:8 ______________________.
THE PETITION
on the suspension of the actions of the CSI on the sale of collateral through an auction in a Single electronic platform
__ May 20__, as a private bailiff of the Regional Chamber of Private Bailiffs of Almaty, _________________. A decree was issued on the transfer of the mortgaged property for sale, which we received on purpose __.06.20__ year. Dear Court, By the Decision of the Private Bailiff of the Regional Chamber of Private Bailiffs of Almaty, _________________. We do not agree on the transfer of the pledged property for sale due to the following circumstances: the CSI emphasizes that the court's decision is not being enforced, which is a violation of the requirements of the legislation of the Republic of Kazakhstan. And the fact that the debtor's failure to fulfill obligations to the creditor is the basis for filing claims for foreclosure on the mortgagor's property, regardless of the provisions of the Pledge Agreement. Dear Court,!! The debtors do not fully agree with the Decision of the CHSI and do not recognize it, as it does not correspond to the current reality:
The mortgaged house as a security measure is the only real estate owned by the defendant, who, at the time of receiving the loan, is still raising imperfectly summer children. To date, the defendant's children live in this house with their family, who also have their share in the rights in this property originally mortgaged by 2 houses, and one has already been sold independently to pay off the debt.
In addition to the collateral property, the Debtor has a Land plot located at the address: Almaty city, Medeu district, ________________.
There is also an apartment in the city of Nur-Sultan, located at ul. ________________.
The debtor, after the arrest and assessment of the property by the bailiff and before the seizure or sale of the property, with the written permission of the bailiff and within the time limit set by him, has the right to sell the seized property at a value not lower than the estimated value. In this regard, we have sent a corresponding application to the CSI from the bailiff for the actual sale of real estate to date, no response has been received. The defendant is taking all measures to realize the property. Also according to Article 72. The order of sale of the debtor's property, when foreclosing on the property of an individual, the sale of this property is carried out in the following order: 1) first of all - property that is not essential items, securities, currency valuables, precious metals and precious stones, jewelry, decorative items and furnishings;
Petition to the court for suspension of the bailiff's actions
2) in the second place - vehicles, real estate (except housing)In this case, Volkswagen Golf and Mercedes Benz cars are listed in the name of the debtors; 3) in the third row - a dwelling. In this case, the Private bailiff did not consider it necessary to prioritize the sale of the debtor's property in accordance with Article 72 of the Law of the Republic of Kazakhstan On Enforcement Proceedings and the Status of Bailiffs, since the debtors have a land plot and an apartment, as evidenced by the Certificate in the appendices. By virtue of Article 13 of the Constitution of the Republic of Kazakhstan, everyone has the right to defend their violated or disputed rights, freedoms or legally protected interests. According to the Law of the Republic of Kazakhstan On the mortgage of immovable property (hereinafter referred to as the Law), Article 5. it says For immovable property in common joint ownership, a mortgage can be established with the written consent of all owners. Also in this Article, a participant in common shared ownership may pledge his share in the right to common property without the consent of other owners.
According to Article 9 of the Law, the transfer of rights under a mortgage agreement is carried out in compliance with the rules on assignment of claims, and in the case of the issuance of a mortgage certificate - in accordance with the procedure established by Article 16 of this Law, and is subject to state registration in this case, this provision of the article is violated. In accordance with Article 55 of the Law, Foreclosure on the debtor's property includes the seizure of property and (or) its compulsory sale or transfer to the recoverer. Foreclosure on enforcement documents applies primarily to the debtor's monetary amounts, including those held in banks and organizations engaged in certain types of banking operations, unless otherwise specified in the enforcement document. If the debtor does not have sufficient sums of money to repay the debt, foreclosure is levied on other property belonging to the debtor. The bailiff, with the written consent of the recoverer or the recoverers of the same queue and the debtor, having previously assessed the property, in accordance with Article 68 of this Law, has the right to transfer it in kind without sale. Foreclosure on the debtor's property is applied in the amount and volume necessary for the execution of the enforcement document, taking into account the costs of execution and the costs of paying for the activities of a private bailiff.
If the debtor's other property is insufficient, foreclosure may be levied on his property. The petition to the court for the suspension of the bailiff's actions is provided for in article 57. According to the Law, foreclosure may be levied on the pledged property if the debtor's other property is insufficient to fully satisfy all claims against it that are not secured by collateral, in compliance with the rights of the pledgee established by the civil legislation of the Republic of Kazakhstan. If the debtor's non-pledged property is insufficient to satisfy the claims of recoverers who do not have the right to pledge the debtor's property, foreclosure on the pledged property, with the exception of property that is collateral for secured bonds and real estate that is collateral for a mortgage loan obligation, may be applied in the interests of non-mortgagees of recoverers, the claims of which have precedence over the claim of the pledgee, based on the court ruling.
Foreclosure on mortgaged property, with the exception of real estate that is collateral for a mortgage loan obligation, is allowed in order to satisfy the claims of the recoverer(s) that do not have an advantage over the claim of the mortgagee, if there is no other property that can be foreclosed on in order to satisfy the claims of these recoverers, or such property is insufficient. In this case, foreclosure on the mortgaged property is allowed by court ruling in compliance with the rights of the mortgagee. According to Article 250 of the CPC RK. A complaint may be filed against the actions (inaction) of the bailiff in executing enforcement documents, including challenging tenders, during enforcement proceedings or against the refusal to commit such actions by the recoverer or debtor. According to the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated March 31, 2017 No. 1, On the application by courts of Certain Norms of the Law on Enforcement proceedings, the issue of foreclosure on property that is collateral for a mortgage loan obligation, as well as on collateral belonging to a third party (the real guarantor) is indicated, It is subject to consideration by the court in a separate lawsuit on the claim of the mortgagee for foreclosure on the mortgaged property in accordance with the requirements of Article 21 of the Law of the Republic of Kazakhstan dated December 23, 1995 No. 2723 "On Mortgage of immovable property".
According to Article 21. It is said about the mortgage of real estate that 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. By virtue of Articles 65,66 of the CPC RK, each party must prove the circumstances to which it refers both on the basis of its claims and objections. In this case, the evidence is provided by the parties and other persons involved in the case. According to Part 1 of Article 219 of the CPC RK, when making a decision, the court evaluates the evidence, determines which circumstances relevant to the case have been established and which have not been established, what are the legal relations of the parties, what law should be applied in this case and whether the stated claim is subject to satisfaction.
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