An appeal against a simplified court decision
The Judicial Board of Appeal
on civil cases of the Almaty City Court
Almaty, Kazybek Bi str., 66
from the Defendant: E.E.
Zh.
IIN .
Address: 15 L. Street,
S. Shulbinsk, A.region.
Phone number: ..
The plaintiff: Kaspi Bank JSC
050013, Republic of Kazakhstan,
154A Nauryzbai Batyr str., Almaty
IIC KZ69125KZT1001300249
in the UUMO of the National Bank of the Republic of Kazakhstan, BIC NBRKKZKX
BIN 971240001315
Plaintiff's representative: K.A.E.
by power of attorney No. 817 dated 05/16/2023
M.T. 8,701 ...
The appeal
on a simplified court decision
On March 5, 2024, the Bostandyk District Court of Almaty, composed of the presiding judge A.Utebekov, considered in simplified proceedings civil case No. 7514-24-00-2/2293 on the claim of the Joint-Stock Company Kaspi Bank against E.E.Zh. for debt collection, the Court, guided by Articles 267-4, 229 of the CPC, the court DECIDED: To satisfy the claim of Kaspi Bank JSC. To collect from E.E.Zh in favor of the Joint-Stock Company "Kaspi Bank" the amount of debt in the amount of 1,562,006.19 (one million five hundred sixty two thousand six) tenge 19 thousand; expenses for the payment of state duty in the amount of 46,860 (forty-six thousand eight hundred and sixty) tenge; also expenses for the executive inscription 15,938 (fifteen thousand nine hundred and thirty-eight) tenge.
I consider the decision of the court of first instance to be unlawful and unjustified and is subject to cancellation on the following grounds:
I, the defendant E.E. Zh (now E.E. Zh), on February 14, 2024, through the IP "Judicial Cabinet", sent a petition for the request of documents in civil case No. 7514-24-00-2/2293, in order to comprehensively, fully and objectively study the said civil case, it was necessary to obtain all the documents in the civil case, to make a review by March 05, 2024 In accordance with part 1 of Article 46 of the CPC RK, persons participating in the case have the right to get acquainted with the case materials and make copies of them. According to paragraph 1 of Article 165 of the CPC RK, "Within three working days from the date of acceptance of the claim, it sends, in accordance with the procedure provided for in Chapter 11 of this Code, or hands over to the defendant and third parties copies of the claim and attached documents substantiating the plaintiff's claims, and also obliges the defendant to submit a written response to the plaintiff's claims within the prescribed period. with the application of evidence substantiating the arguments." At my request, the court did not send all the documents attached to the statement of claim substantiating the plaintiff's claims for review.
According to the statement of claim, the Plaintiff indicates that the Defendant did not take measures to repay the loan debt. As the Defendant, I made payments on the overdue loan, in particular, there were repayments in the period from 09/08/2020, from 10/22/2021 to 02/24/2022, the total amount of 116,590 (one hundred sixteen thousand five hundred and ninety) tenge.
According to the statement of claim, the amount owed as of 01/20/2024 is 1,562,006.19 (one million five hundred and sixty-two thousand six) tenge 19 tiyn, but in the attached executive inscription 05409- 009460/387 dated 07/27/2023, the amount owed was 1,359,790.62 tenge (one million three hundred and fifty-nine thousand seven hundred and ninety tenge, sixty-two tiyn). The amounts owed vary greatly.
According to the statement of claim, the plaintiff refers to the fact that "For the purpose of pre-trial settlement of the dispute, on 12.2023, the Bank sent a Pre-trial claim to the Defendant for repayment of the debt, but the Defendant did not fulfill it." As a Defendant, I have not received this pre-trial claim. The plaintiff did not attach a receipt form for this claim.
According to the statement of claim, a debt calculation dated 01/20/2024 was attached, but I, as the Defendant, was not provided with this calculation. Perhaps the court did not accept the fact that, according to Article 34 of Paragraph 6-1 of the Law "On Banks and Banking Activities" - Under the borrower's bank loan agreement – an individual who is not related to the implementation of entrepreneurial activities, a bank, or an organization engaged in certain types of banking operations is prohibited from demanding payment of remuneration, penalties (fines, penalties), as well as commissions and other payments related to the issuance and servicing of a loan accrued after ninety consecutive calendar days of delay in fulfilling an obligation to repay any of them. payments for the amounts of the principal debt and (or) remuneration.
On the basis of Articles 267-3, 267-4. of the Civil Procedure Code of the Republic of Kazakhstan, the defendant has the right to file with the court that issued the decision in simplified (written) proceedings, an application for cancellation of this decision within five working days from the date of receipt of a copy of the court decision.
Disagreeing with the court's decision, the Defendant sent an Application to the court for the cancellation of the court's decision adopted in a simplified manner, citing the following arguments: that the defendant did not know about this court session, had never received notifications about upcoming court sessions, and was thus deprived of the opportunity to provide his reasoned objection.
Also, the defendant did not have the opportunity to familiarize himself with the subject of the statement of claim, the nature and size of the plaintiff's claims and collect the necessary materials to protect his interests, since the court's decision affects the interests of the defendant.
In accordance with Part 3 of Article 267-3 of the Civil Procedure Code of the Republic of Kazakhstan, the Court notifies the parties, sets a deadline within fifteen working days for the defendant to submit a response (objection) to the statement of claim, accompanied by documents and evidence that substantiate it.
According to 267-3 of the CPC of the Republic of Kazakhstan, copies of the court decision are sent to the parties using means of communication that record its receipt, or are issued no later than five working days from the date of the final decision.
Dear Court of Appeal, we disagree with the arguments indicated in the court's decision adopted in a simplified manner in a civil case on debt collection.
We consider the decision of the court of first instance to be unjustified, since the Court did not take into account the payments made, the difficulty and temporary insolvent situation, and the intention to settle the case amicably.
Within the established time frame, the Defendant filed a private complaint against the court's decision, however, on March 26, 2024, the court, guided by the requirements of Articles 406, 268-269 of the CPC, determined that E.E.Zh.'s appeal against the decision of the Bostandyk District Court of Almaty dated March 5, 2024, should be left without motion and provided for correcting deficiencies until April 11, 2023 of the year.
Dear Board of Appeal, the reason for appealing the decision of the court of first instance is the fact that the Defendant intends to conclude a mediation agreement during the consideration of the case. Accordingly, we ask you to cancel the simplified court Decision in order to approve a mediation agreement for the amount of the overdue debt. In accordance with Article 8 of the CPC, everyone has the right to apply to the court for protection of violated or disputed constitutional rights, freedoms or protected interests.
In accordance with Article 15 of the Civil Procedure Code of the Republic of Kazakhstan, the parties choose their position, ways and means of defending it independently and independently of the court, other bodies and persons during civil proceedings.
In accordance with Articles 401, 402, 403, 404 of the Civil Procedure Code of the Republic of Kazakhstan, it is stipulated that an appeal may be filed against court decisions that have not entered into force. The right of appeal against a court decision belongs to the parties and other persons involved in the case, and are considered by the appellate judicial board for civil cases of the regional and equivalent courts in a collegial composition of at least three judges of the board. Appeals are filed through the court that issued the decision. An appeal may be filed within one month from the date of the final decision, and by persons who did not participate in the trial, from the date of sending them a copy of the decision.
In accordance with paragraph 4, art. 267-4 of the CPC RK, an appeal may be filed against the decision, an appeal petition may be filed by the prosecutor after the deadline for filing an application for revocation of this decision, and if the application is filed, within one month after the court ruling on the refusal of this application.
For the purpose of a comprehensive, complete and objective consideration of the said civil case, the court will be provided with evidence that may affect the content of the decision.
Based on the above and guided by Articles 401, 402, 403, 404, 267-4 of the CPC RK,
I ask the Court:
To satisfy the Defendant's appeal against the Decision of the Bostandyk District Court of Almaty dated March 5, 2024;
The decision of the Bostandyk District Court of Almaty dated March 5, 2024 – to cancel;
Assist the parties in concluding a mediation agreement and approve mediation for the overdue amount of debt.
With respect,
___________/ E.E.J. "___"___________2024 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.
Attorney at Law Almaty Lawyer Legal Services Legal Advice Civil Criminal Administrative Cases Disputes Protection Arbitration Law Firm Kazakhstan Law Office Court Cases
