Statement of claim to the court against the decision of the bailiff on the transfer of real estate for auction
To the Alatau District Court of Almaty. Almaty, Shanyrak district, Zhankozha Batyr str. 26 8 (727) 333-14-04
from the defendant: ..................... IIN .........................
Proxy representative: Law and Law Law Company LLP, represented by
The General director of Sarzhanov Galymzhan Turlybekovich. BIN 190240029071. Almaty, Abylai Khan ave.,
79/71, office 304 info@zakonpravo.kz / www.zakonpravo .kz + 7 727 978 5755; +7 700 978 5755
Defendant: Private bailiff of the executive district of the city
Almaty Ospanbayev Baurzhan Zholdybaevich
B_ospanbaev[@]mail.ru 26/1 Nusupbekova str., office 603 phone: 8 702 411 13 33
complaint
on the action of a Private bailiff on the transfer of mortgaged property for sale
Between "Kassa Nova Bank" DB JSC "ForteBank" and ...................... ( further – the Borrower, the Plaintiff) a Bank loan agreement was concluded № ................, in accordance with which the bank provided the defendant with a loan in the amount of 5,000,000 tenge, for a period of 48 months with an interest rate of 19% per annum. Also between Kassa Nova Bank JSC and .............. 9 A bank loan agreement was signed on June 2017 № ..................., for which the Borrower was granted a loan by the bank in the amount of 5,000,000 tenge, for a period of 60 months with an interest rate of 19% per annum. In order to ensure the fulfillment of obligations under the Loan Agreement, in accordance with Mortgage Agreement No............ On July 15, 2015, an apartment building was provided as collateral, located at the address: Almaty, mkr......, ul. ............., D.33. Due to financial difficulties at the Borrower., there were repeated requests in writing and verbally to the bank - to provide any preferential conditions for the fulfillment of 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 Alatau District Court of Almaty dated May 29, 2019 recovered from .......... in favor of "Bank Kassa Nova" DB JSC "ForteBank" the amount of debt in the amount of 6,823,718 (six million eight hundred twenty three thousand seven hundred eighteen) tenge and court costs for the payment of state duty in the amount of 204,712 tenge were collected.
It was also decided to foreclose on mortgaged real estate, in the form of a residential building with a total area of 126.1 sq.m., with a land area of 0.0593 ha, located at the address: Almaty, md. …..., St. ..........., D.33, owned by right of ownership .................., due to the payment of debt in favor of the Joint-Stock Company "Bank Kassa Nova" Subsidiary Bank of the Joint-Stock Company "ForteBank"by setting an initial selling price of 31 492 521 (thirty one million four hundred ninety two thousand five hundred twenty one) tenge. On May 19, 2020, as a private bailiff of the Executive district of Almaty city ............... enforcement proceedings were initiated and a resolution was issued on the transfer of the mortgaged property for sale, which we received on 05/25/2020. Dear Court, By the Decision of the Private Bailiff of the Executive District of Almaty city ................ on the transfer of mortgaged property for sale – disagree on the following circumstances:
Statement of claim to the court against the decision of the bailiff on the transfer of real estate for auction
The CSI specifically notes 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. 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. We would like to inform you that the Plaintiff is currently taking all measures to independently sell the collateral. 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 Plaintiff's children live in this house with their family, who also have their share in the rights in this property.
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.
Statement of claim to the court against the decision of the bailiff on the transfer of real estate for auction
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. 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.
The court resolves the case within the limits of the plaintiff's claims. In accordance with Articles 75-78 of the Constitution of the Republic of Kazakhstan, everyone has the right to be heard in court; Courts do not have the right to apply laws and other regulatory legal acts that infringe on human and civil rights and freedoms enshrined in the Constitution. If the court finds that a law or other regulatory legal act to be applied infringes on the rights and freedoms of a person and citizen enshrined in the Constitution, it is obliged to suspend the proceedings and apply to the Constitutional Council with a motion declaring this act unconstitutional., and art. 15 CPC RK civil proceedings are conducted on the basis of competition and equality of the parties, This can be fully realized only if each of the persons involved in the case is given the opportunity to attend the court session. also in article 13. Equality of all before the law and the court it is stated that Justice in civil cases is carried out on the basis of equality before the law and the court, in the course of civil proceedings, none of these citizens can be given preference and none of them can be discriminated against on the grounds of their origin, social, official and property status, gender, race, nationality, language, attitude to religion, beliefs, place of residence or any other circumstances; legal entities may not be preferred and none of them may be discriminated against based on their location, organizational and legal form, subordination, form of ownership and other circumstances. Statement of claim to the court against the decision of the bailiff
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