How to appeal against the bailiff's decision on the sale of mortgaged real estate

District Court No. 2 of Almaly district of Almaty

Almaty city, Tole bi street, 8 (727) 333-11-50

From the defendant: ............................ IIN .................... Almaty region,

Talgarsky district, Panfilovsky rural district, S. ..........., St. ..........., D. 98.

Representative by proxy:

Law and Law Law Company LLP represented by the General Director

Sarzhanov Galymzhan Turlybekovich.

BIN 190240029071. Almaty, 79/71 Abylai Khan ave., office 304

info@zakonpravo.kz / www.zakonpravo.kz + 7 727 978 5755; +7 700 978 5755

Defendant: A private bailiff of the executive

districts of Almaty Sagatbekuly Galym

Almaty, Karasai Batyr St., No. 123/1.    

 

complaint

on the action of a Private bailiff on the transfer of mortgaged property for sale  

 

Between JSC Eurasian Bank (hereinafter referred to as the Bank) and ......... ( further – the Borrower, the Plaintiff) a Bank loan agreement was concluded .......... dated 07/03/2007, according to which the bank provided the defendant with a loan in the amount of 75,600,000 tenge. In order to ensure the fulfillment of obligations under the Loan Agreement, according to the Mortgage Agreement № .............. On 05/08/2008, non-residential premises with a total area of 764.00 sq.m. were provided as collateral. with a land plot of 0.4144 ha, cadastral number 03-051197-561, located at: Almaty region, Talgar district, Panfilovsky rural district, S................. Due to the financial difficulties of the Borrower, there have been repeated written and oral requests to the bank to provide any preferential conditions for fulfilling obligations under the Bank Loan Agreement in the hope of resolving the current situation in a peaceful manner before the court order. In connection with the non-fulfillment of contractual obligations, the bank sued after which the Decision of the district court No.2 Auezovsky district of Almaty dated 05/27/2011, the claim of JSC "Eurasian Bank" to ............... the claim for recovery of the amount of debt and invalidation of the mortgage agreement is partially satisfied, in solidarity with ............... 99,987,183 tenge was recovered in favor of Eurasian Bank JSC.  

And also on August 23, 2017, the Talgar District Court of the Almaty region decided to foreclose on the mortgaged property belonging to .................... in the form of non-residential premises with a total usable area of 764.00 sq.m., with a land plot of 0.4144 ha, cadastral number 03- 051-197-561, located at: Almaty region, Talgar district, Panfilovsky rural district, S. .............., St.. On June 26, 2019, the Private bailiff of the executive district of Almaty, Sagatbekuly G., initiated enforcement proceedings and on July 04, 2019, issued a resolution on the transfer of the mortgaged property for sale, which we received on 06/02/2020. Dear Court, By the decision of the Private Bailiff of the Executive District of Almaty, Sagatbekuly G., on the transfer of mortgaged property for sale, we disagree on the following circumstances: The CSI emphasizes that the court's decision is not 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. However, dear court, the Plaintiff is taking all measures to enforce the court's decision and is fully cooperating with the recoverer and the bailiff. To date, the Borrower pays monthly for 100 000 – 120 000 tenge and has already repaid a significant amount due to the execution of the court decision. We would like to inform you that the Plaintiff is currently taking all measures to resolve and enforce the court's decision. 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 property as a security measure is the only kindergarten in the village of Karabulak, moreover, this immovable property belongs to socially significant objects. To date, the Kindergarten has experienced many difficulties since its formation. Despite all the financial and economic crises, the Kindergarten is currently one of the most advanced technological preschool institutions in the Talgar district. The kindergarten is constantly modernizing and improving the education system, so pupils are already learning Kazakh, Russian and English in kindergarten, and they are 100% ready to exceed the thresholds of secondary schools, showing a high level of preschool education.

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. 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. According to the Law of the Republic of Kazakhstan On 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 others. owners. Provided by art . 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.

At the request of the pledgor, the court, if there are valid reasons, has the right to postpone its sale for up to one year in a decision on foreclosure on mortgaged immovable property in cases where: 1) the mortgagor is a citizen, regardless of which immovable property is mortgaged by him under a mortgage agreement, provided that the pledge is not related to the implementation of entrepreneurial activity by this citizen; 2) the subject of the mortgage is a land plot of agricultural land. The postponement of the sale of mortgaged immovable property does not affect the rights and obligations of the parties under the main obligation and does not release the debtor from compensation for the creditor's increased losses during the postponement, remuneration and penalties due to him. If the pledgor satisfies the claims of the pledgee within the time period provided to him by the postponement, the court, upon the application of the pledgor, cancels this decision. Postponement of mortgage sale is not allowed in the following cases:: 1) if it may lead to a significant deterioration in the financial situation of the pledgee; 2) if proceedings have been initiated against the pledgor or the pledgee to declare him bankrupt. By abusing his official position, the above-mentioned actions violated the Basic Principles of Enforcement proceedings, namely: legality, respect for human honor and dignity, and the inviolability of the minimum property necessary for the existence of the debtor and his family members.

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