Private complaint against the decision of a Private bailiff
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To the Judicial Board of Appeal
on civil and administrative matters
Almaty Regional Court
from: ______________,
IIN ____________,
Location: Almaty region,
Karasai district, _____________
phone: 8 (702) ________
the person whose actions
appealed:
Private bailiff,
executive district of Almaty region
regions, __________, Taldykorgan, ul. ___________________.
Phone: 8 (701) __________
PRIVATE COMPLAINT
on the decision of a private bailiff
Private bailiff of the executive district of the Almaty region ______________ I applied to the court for a sanction for foreclosure on real estate located at the address: Almaty region, Karasai district, ___________, cadastral number ___________, owned by private property ___________. 12.03.2018. resolution of a private bailiff ______________ on foreclosure on property, authorized by the specialized interdistrict Economic Court of the Almaty region.
With this resolution of the CHSI ______________ I disagree, it was made unlawfully and unreasonably and is subject to cancellation on the following grounds: First of all: In accordance with Article 25 of the Constitution of the Republic of Kazakhstan (the Basic Law of the Republic of Kazakhstan), housing is inviolable. The deprivation of housing is not allowed, except by a court decision. Entry into a dwelling, its inspection and search are allowed only in cases and in accordance with the procedure established by law.
Also, according to Article 13 of the Constitution of the Republic of Kazakhstan, everyone has the right to judicial protection of their rights and freedoms. It is not clear how, with the existence of these norms of the Constitution of the Republic of Kazakhstan, the bailiff could issue a decree and decide the fate of a person. And the court, in turn, limited by the scope of Articles 240-7 of the CPC RK (which states that the judge is obliged to authorize or refuse to sanction on the same day when the material is submitted to the court), fully examines the material and authorizes the decision of the bailiff. With such a heavy workload, we can assume that the court, without examining the material, issues a sanction and returns the case for execution, thereby violating my constitutional rights as a citizen.
A private bailiff shows personal interest and tries to purposefully sell my collateral as soon as possible. During the consideration by the court of first instance, the claims of Damu Entrepreneurship Development Fund JSC for the recovery of the amount of debt and foreclosure on the pledged property were denied in terms of foreclosure on the pledged property. That is, the judge of the first instance, having listened to the opinions of the parties at the court session and comprehensively, objectively examined all the evidence provided, refused the plaintiff in terms of foreclosure. However, Judge _________ grossly violating my constitutional rights, depriving me of the right to contest the trial, authorized the decision of a private bailiff in one day ______________ Secondly,:
According to the requirements of paragraph 2 of Article 57 of the Law of the Republic of Kazakhstan "On Enforcement Proceedings and the Status of Bailiffs" (hereinafter referred to as the Law), a court ruling on foreclosure on mortgaged property is issued at the request of the bailiff at a court hearing, notifying the mortgagee, the recoverer and the debtor of the time and place of the court session. 57 of the Law clearly states that 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 claim of the recoverer(s) who 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 claim of these recoverers, or such property is not enough.
In this case, foreclosure on the mortgaged property is allowed by court ruling in compliance with the rights of the mortgagee. In accordance with Article 25 of the Constitution of the Republic of Kazakhstan (the Basic Law of the Republic of Kazakhstan), housing is inviolable. The deprivation of housing is not allowed, except by a court decision. Entry into a dwelling, its inspection and search are allowed only in cases and in accordance with the procedure established by law.
Also, according to Article 13 of the Constitution of the Republic of Kazakhstan, everyone has the right to judicial protection of their rights and freedoms. In accordance with paragraphs 7, 8 of the Normative Resolution of the Supreme Court No. 2 dated 06/20/2005. "on some issues of the courts' application of legislation on enforcement proceedings" when appealing against the action of the bailiff on the illegality of foreclosure on other (except money) property, the court checks whether the ownership of the property to the debtor has been clarified. Thirdly: Article 55 of the Law provides for the procedure for foreclosing on the debtor's property:
Foreclosure on the debtor's property includes the seizure of property (or) its compulsory sale or transfer to the recoverer.
The debtor's monetary amounts, including those held in banks and organizations engaged in certain types of banking operations, are primarily levied on enforcement documents, if a different procedure is defined in the enforcement document.
Foreclosure on the debtor's cash amounts, which are listed according to accounting (cash) documents, is carried out regardless of the debtor's consent immediately upon their provision or discovery, regardless of the place of their storage. The debtor's cash amounts, including those stored in the safes of the debtor's cash desk and located in an isolated room of this cash desk or other premises of the debtor, are subject to seizure immediately upon their discovery, if it is reliably known about their belonging to the debtor.
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 value of which exceeds the amount of the foreclosure under the enforcement document. In such cases, after the sale of the property, the debtor is refunded the proceeds less the amount collected under the enforcement document and the costs of execution, as well as the amounts for paying for the activities of a private bailiff.
In addition, no one informed me properly about the place and time of consideration of the decision of a private bailiff to foreclose on my property. The judicial act was passed without my participation, although it was in relation to my collateral. The judge of the first instance did not give me the opportunity to review the ruling and prepare an appropriate review, to present my arguments.
I also assume that in this case it is more appropriate to consider this issue within the framework of art.233 of the Civil Procedure Code of the Republic of Kazakhstan, that is, on the proposal of interested parties to change the method and procedure for the execution of a court decision. We believe that the private bailiff should have submitted a proposal to change the method and procedure for executing the court decision to the judicial authority that issued the court decision, that is, to the Specialized Interdistrict Economic District Court of the Almaty region, since the court decision was issued by this court.
I ASK THE COURT:
Resolution of a private bailiff ______________ about foreclosure on real estate located at the address: Almaty region, Karasay district, ___________, cadastral number ___________, owned by right of ownership ___________, The decision authorized by the interdistrict Economic Court of the Almaty region dated 12.03.201_ should be canceled.
With respect,
Representative by proxy
___________________/ Sarzhanov G.T
"___"____________20__ G.
Attention!
The Law and Law Law Firm draws your attention to the fact that this document is basic and does not always meet the requirements of a specific situation. Our lawyers are ready to assist you with legal advice and drafting any legal document that suits your situation.
For more information, please contact a Lawyer/Lawyer by phone; +7 (708) 971-78-58; +7 (700) 978 5755, +7 (700) 978 5085.
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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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