Appeal against the court's decision to recover the amount owed under the loan agreement
To the Court of Appeal for Civil Cases
cases of the Kyzylorda Regional Court
Kazakhstan, Kyzylorda, street _______________. +7 _______________
From the defendant: _______________ IIN: _______________.
the city of Kyzylorda, _______________. +7 _______________.
Proxy representative: Law and Law Law Company LLP
BIN 190240029071 Almaty, Zhibek Zholy ave., 50, office 202, Business center Quarter
info@zakonpravo.kz / www.zakonpravo.kz +7 708 578 57 58; + 7 727 978 57 55.
The plaintiff: _______________ INN _______________
address: Almaty city, Auezovsky district, Tole bi street,
_______________ phone number 8 _______________
The defendant in the counterclaim: LLP "_______________" BIN _______________
Almaty city, street _______________
The appeal
on the decision of the Kyzylorda City Court of the Kyzylorda region dated June 01, 2020
_ On _ June 20__, the Kyzylorda City Court of the Kyzylorda region, consisting of: the presiding judge ___________________, at the secretary of the court session ___________________, considered in open court the civil case on the claim: ___________________ ( further, the Plaintiff) to ___________________ ( further, the Defendant) about the recovery However, a counterclaim was also considered. ___________________ to ___________________, LLP "___________________" where the court DECIDED: Statement of Claim ___________________ to the defendant ___________________ about debt collection - partially satisfy. Collect from the defendant ___________________ in favor of the plaintiff ___________________ the amount of the principal debt in the amount of 60,000 tenge, the amount of remuneration in the amount of 8,400 tenge, the amount of a penalty in the amount of 6,000 tenge, the amount of expenses for paying for the assistance of a representative in the amount of 7,440 tenge, the amount of court costs in the amount of 744 tenge, in total in the amount of 82 584 tenge. To dismiss the rest of the claim and to dismiss the counterclaim ___________________ The defendants are a Limited Liability Partnership "___________________", ___________________ to declare the loan agreement invalid - to refuse in full.
I consider the decision of the court of first instance to be illegal, unfounded and subject to cancellation on the following grounds: The defendant, during the trial, without recognizing the plaintiff's claims, explained that the online loan agreement in the amount of 60,000 tenge with LLP "___________________"she didn't make a deal. The specified agreement has been concluded ___________________, who, through deception and abuse of trust, using her identity card and a bank card with a PIN code provided to her, issued an online loan in the amount of 60,000 tenge in her name, monetary the funds that, after being credited to her card account, were transferred with her consent to the name of a certain citizen ___________________, In this regard, she did not actually take out a loan and did not conclude with _______ LLP.___________" a loan agreement in the amount of 60,000 tenge and that a criminal case is currently under way, according to which she is the victim, in connection with which she believes that she should not be liable under this loan agreement and which she should be asked to invalidate.
Dear Board of Appeal, we would also like to draw your attention to the fact that initially, according to the Plaintiff, according to the Statement of Claim, the Loan agreement was concluded between the Defendant _________________, and TOO "___________________". Subsequently, after the formation of debt on the part of the Defendant, LLP "___________________" completely ceded the right of claim to the Plaintiff to an individual citizen ___________________, accordingly a contract of assignment of the rights of claims (assignment) was concluded according to which the LLP "___________________" transferred his right to claim the debt from the debtor. Subsequently, the Plaintiff filed a lawsuit against the Defendant to recover debts from the Defendant in the amount of KZT 214,400 and court costs, arguing that the Defendant violated its obligations under the Agreement and did not repay the loan item.
Article 68 of the CPC RK. "Evaluation of evidence" states that each piece of evidence must be evaluated taking into account its relevance, admissibility, and reliability, and all the evidence collected together is sufficient to resolve a civil case. In this civil case, we observe that the evidence provided is false and unfounded. An appeal against the court's decision to recover the amount in accordance with Article 5. The application of civil legislation by analogy is said In cases where relations are not directly regulated by legislation or agreement of the parties and there are no customs applicable to them, the norms of civil legislation governing similar relations (analogy of the law) apply to such relations, since this does not contradict their essence. If it is impossible to use the analogy of law in these cases, the rights and obligations of the parties are determined based on the general principles and meaning of civil legislation and the requirements of good faith, reasonableness and fairness (analogy of law).
Thus, Article 36 of the Law of the Republic of Kazakhstan "On Banks and Banking Activities in the Republic of Kazakhstan" and on Microfinance Organizations must be taken into account when there is a delay in fulfilling obligations under the loan agreement. The borrower must notify the borrower in the manner provided for in the loan agreement of the need to make payments under the bank loan agreement and the consequences of the borrower's failure to fulfill its obligationThus, Article 36 of the Law of the Republic of Kazakhstan "On Banks and Banking Activities in the Republic of Kazakhstan" and oce Organizations must be taken into account when there is a delay in fulfilling obligations under the loan agreement. The borrower must notify the borrower in the manner provided for in the loan agreement of the need to make payments under the bank loan agreement and the consequences of the borrower's failure to fulfill its obligations. In accordance with clause 4 of art.36-1 of the Law "On BanIn accordance with clause 4 of art.36-1 of the Law "On Banks and Banking Activities in the Republic of Kazakhstan", a bank, an organization engaged in certain types of banking operations, is prohibited from assigning rights (claims) under a loan agreement to a third party, with the exception of assignment of rights (claims) to the following persons: - collection agency; - bank; - organizations that perform certain types of banking operations; - a subsidiary of the bank acquiring doubtful and uncollectible assets of the parent bank; - an organization specializing in improving the quality of credit portfolios of second-tier banks; - a special financial company established in accordance with the legislation of the Republic of Kazakhstan on project financing and securitization, during the securitization transaction.
Because, TOO "___________________" They performed certain types of banking operations without having a license, and therefore did not have the right to assign the right of claim to an individual. ___________________. Whereas, according to paragraph 1, art. 725-1 of the Civiluse, TOO "_______________" They performed certain tyking operations without having a license, and therefore did not have the right to assign the right of claim to an individual. ___________________. Whereas, according to paragraph 1, art. 725-1 of the Civil Code of the Republic of Kazakhstan, a loan agreement concluded with an individual borrower has the following features:
the annual effective interest rate under the loan agreement may not exceed one hundred percent, including in the event of a change in the repayment period of the loan;
the amount of the penalty (fine, penalty) for violating the obligation to rethe amount of the penalty (fine, penalty) for violating the obligation to repay the loan amount and (or) pay remuneration under the loan agreement may not exceed 0.5 percent of the amount of the outstanding obligation for each day of delay, but not more than ten percent of the amount of the loan issued per year;
all payments of the borrower under the loan agreement, including the amount of remuneration, penalties (fines, penalties), commissions and other payments stipulated in the loan agreement, with the exception of the loan item, in aggregate may not exceed the amount of the loan issued for the entire period of the loan agreement;
By virtue of paragraph 2 of Article 725-1 of the Civil Code of the Republic of Kazakhstan, if a loan agreement concBy virtue of paragraph 2 of Article 725-1 of the Civil Code of the Republic of Kazakhstan, if a loan agreement concluded with an individual borrower that does not comply with the requirements of paragraph 1 of Article 725-1 of the Civil Code of the Republic of Kazakhstan is void. 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. The loan agreement concluded between the Plaintiff and the Defendant does not comply with the requirements of paragraph 1 of Article 725-1 of the Civil Code. Also, the amount of remuneration and penalties does not meet the requirements of art. 725-1 of the Civil Code. As well as the provision of a loan with payment of remuneration refers to banking operations, this type of activity is subject to licensing. Thus, the LLP "___________________", In fact, he carries out professional activities in the financial services market through online lending, but does not have an appropriate license and is not a proper subject of this activity.
In accordance with Article 4 of the Law of the Republic of Kazakhstan "On State Regulation, Control and Supervision of the Financial Market and Financial Organizations", persons who do not have an appropriate ccordance with Article 4 of the Law of the Republic of Kazakhstan "On State Regulation, Control and Supervision of the Financial Market and Financial Organizations", persons who do not have an appropriate license issued in accordance with the legislation of the Republic of Kazakhstan are not allowed to carry out professional activities in the financial market. According to paragraph 1 of Article 13, paragraph 5 of Article 14 of the Law "On Microfinance Organizations", the name of a microfinance organization must necessarily contain the words "microfinance organization". The register of microfinance organizations that have been registered is posted on the authorized body's Internet resource. From the list posted on the website of the National
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