An application to the Medeu District Court for the annulment of a simplified court decision
Medeu District Court of Almaty
050000 street, Almaty Nusupbekova 26/1,
8 (727) 333-10-70
from the Defendant: I.A.N.
IIN........
city …
+7 708 …
Representative by proxy:
Law and Law Law Firm
BIN 201240021767
79 Abylai Khan Ave., office 304, Almaty
info@zakonpravo.kz / www.zakonpravo.kz
+7 708 578 5758; +7 727 971 78 58.
Statement
on the cancellation of a simplified court decision
On June 17, 2024, Judge A.K. Kumarova of the Medeu District Court of Almaty, having considered in a simplified procedure the civil case No. 7517-24-00-2/16130 on the claim of the Limited Liability Partnership "Expert Plus Collection Agency" to the Defendant I.A.N. on debt collection.
Guided by Articles 223-226, 267-4 of the CPC, the court decided: To satisfy the claim of the Limited Liability Partnership Collection Agency Expert Plus to I.A.N. for debt collection.
To collect from I.A.N. in favor of LLP "Collection Agency "Expert Plus" the amount of debt in the amount of 42 280 tenge, the cost of paying for the assistance of a representative in the amount of 4,228 tenge, the cost of paying state duty in the amount of 1,268 tenge, court costs in the amount of 170 tenge, a total of 47 946 tenge.
(the final version of the decision was published on 06/18/2024).
Dear Court, the Defendant did not know about this court session, and she never received notifications about upcoming court sessions, thereby being unable to provide her reasoned objection. The defendant found out about the court's decision on October 01, 2024, when the bailiff arrested the accounts, there is no Claim and documents attached to it in the judicial office except for the court's decision. Also, the Defendant did not have the opportunity to get acquainted with the subject of the statement of claim, the nature and size of the plaintiff's claims and collect the necessary materials to protect her interests, since the decision of the Medeu District Court of Almaty 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 Part 1 of art. 267-4 of the Civil Procedure Code of the Republic of Kazakhstan, copies of the court decision are sent to the parties using means of communication that ensure recording of its receipt, or are issued no later than five working days from the date of the final decision.
It should be noted that: The defendant does not agree with the court's Decision on the following grounds:
The court's decision does not contain any information about the legal relationship between the Defendant and the Expert Plus Collection Agency LLP, from which the Debtor owed debts to the recoverer. The debtor has not entered into any civil relations with the Recoverer of the Expert Plus Collection Agency LLP. It is not clear to the Defendant on the basis of which agreement the debt was formed from the court Decision, information about this Agreement is not available in the database of the First Credit Bureau.
In this case, the Plaintiff's claim is not indisputable. According to Part 1 of Article 342 of the Civil Code of the Republic of Kazakhstan, the debtor has the right not to fulfill the obligation to the new creditor before providing him with evidence of the transfer of the claim to this person.
In connection with the Plaintiff's failure to fulfill the obligations stipulated by law, the Defendant has the opinion that the Plaintiff's actions are aimed at seizing property through deception and abuse of the Defendant's trust.
According to clause 1 of Article 383 of the Civil Code of the Republic of Kazakhstan, the contract must comply with the rules binding on the parties, established by law (mandatory norms) in force at the time of its conclusion.
By virtue of clause 1 of Article 159 of the Civil Code, a transaction made without obtaining the necessary permission is void. From clauses 2 and 3 of Article 157-1 of the Civil Code, it follows that an invalid transaction does not entail legal consequences, except for those related to its invalidity.
The law states that Expert Plus Collection Agency LLP was obliged to notify the Borrower of the transfer of the right (claim) to a third party via SMS notifications and/or emails within thirty calendar days from the date of conclusion of the assignment agreement, indicating the purpose of further payments to repay the loan to a third party (name and location the location of the person to whom the right (claim) has been transferred under the loan agreement), the full amount of the transferred rights (claims), as well as the remaining overdue and current amounts of the principal debt, remuneration, commissions, penalties (fines, penalties) and other amounts payable.
According to the Law of the Republic of Kazakhstan "On Banks and Banking Activities", where, when a bank assigns rights (claims) under a loan agreement to a third party, the requirements and restrictions imposed by the legislation of the Republic of Kazakhstan on the relationship between the lender and the borrower under the loan agreement apply to the borrower's legal relationship with the third party to whom the right has been assigned (requirement).
Also, according to paragraphs 4-1, Article 4 of the Law of the Republic of Kazakhstan "On Microfinance Activities", where, when a microfinance organization assigns rights (claims) under a micro-loan agreement to a third party, the requirements and restrictions imposed by the legislation of the Republic of Kazakhstan on the relationship between the lender and the borrower under a micro-loan agreement apply to the borrower's legal relationship with a third party. to whom the right (claim) has been assigned.
According to paragraph 2, art. 725-1 of the Civil Code of the Republic of Kazakhstan, where a loan agreement concluded with an individual borrower that does not comply with the requirements of paragraph 1 of this Article is void.
By virtue of clause 1 of Article 382 of the Civil Code of the Republic of Kazakhstan, the terms of the contract are determined at the discretion of the parties, except in cases where the content of the relevant condition is prescribed by law.
According to clause 1 of Article 383 of the Civil Code of the Republic of Kazakhstan, the contract must comply with the rules binding on the parties, established by law (mandatory norms) in force at the time of its conclusion.
By virtue of clause 1 of Article 159 of the Civil Code, a transaction made without obtaining the necessary permission is void. From clauses 2 and 3 of Article 157-1 of the Civil Code, it follows that an invalid transaction does not entail legal consequences, except for those related to its invalidity.
According to Article 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 a simplified (written) procedure an application for cancellation of this decision within five working days from the date of receipt of a copy of the court decision. The application is filed if the defendant has not been properly notified of the receipt of the statement of claim and its consideration in a simplified (written) procedure and has not been able to provide feedback, as well as evidence that may affect the content of the decision. An application for revocation of a decision is considered in accordance with the rules established by Chapter 21-1 of this Code, taking into account the requirements provided for in part two of this Article. The decision may be appealed by the parties or appealed by the prosecutor on appeal after the deadline for filing an application for revocation of this decision has expired, and if the application has been filed, within one month after the court issued a ruling rejecting this application.
In addition, the pre-trial procedure for resolving the case was not settled between the parties in accordance with the norms of Articles 152 and 279 of the CPC RK and Article 402 of the Civil Code of the Republic of Kazakhstan, providing that the judge returns the statement of claim, and the court leaves the statement of claim without consideration if the plaintiff does not comply with the pre-trial procedure established by law for this category of cases, the mandatory procedure for preliminary pre-trial dispute resolution and the possibility of this procedure have not been lost and have been preserved.
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.
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.
According to Article 15 of the Civil Procedure Code of the Republic of Kazakhstan, during civil proceedings, the parties choose their position, ways and means of defending it independently and independently of the court, other bodies and persons.
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.
On the basis of the above and in accordance with art. 267-4 of the CPC RK,
I ask the Court:
· To cancel the decision of the Medeu District Court of Almaty adopted in a simplified manner on June 17, 2024 on the claim of the Limited Liability Partnership Collection Agency Expert Plus against the Defendant I.A.N. on debt collection;
· Consider the civil case No. 7517-24-00-2/16130 on the claim of the Limited Liability Partnership Collection Agency Expert Plus against the Defendant I.A.N. for the recovery of the amount owed on the merits in accordance with the generally established procedure.
Yours sincerely,, __________/ I.A.N.
"___"__________2024 the year
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