Disputes about competitive obligations and obligations arising on the basis of tenders, auctions and other forms of bidding (including their recognition as invalid -valid)

          Relations related to the sale of debtors' property at auction within the framework of enforcement proceedings are regulated by the norms of the Civil and Civil Procedure Codes of the Republic of Kazakhstan, the Law of the Republic of Kazakhstan "On Enforcement Proceedings and the Status of Bailiffs" dated April 2, 2010 No. 261-IV, the Law "On Mortgage of Immovable Property", as well as regulatory resolutions of the Supreme Court of the Republic of Kazakhstan No. 2 dated June 20, 2005 "On certain issues of the application by courts of legislation on enforcement proceedings" and No. 10 dated December 19, 2003 "On the application by Courts of legislation on challenging Decisions and Actions (or Inaction) of State authorities, local governments, public associations, organizations, officials individuals and government employees", the Rules for the sale of seized property, including at auction in the form of an electronic auction, approved by the Order of the Minister of Justice of the Republic of Kazakhstan dated February 20, 2015 No. 100.

             The circumstances established by a court decision that has entered into legal force in a previously considered civil case are binding on the court and are not proven again in other civil cases involving the same persons.

             By the decision of the Al-Farabi District Court of the mountains. Shymkent dated 26.01.2015. in the case of the complaint of Abdurakhmanov Gapyrzhan Tadjibaevich, the actions of a private bailiff Kuttybayeva R.A. were recognized as illegal and the decision of 18.11.2014 on the transfer of seized property for sale and on the appointment of auctions of seized property – a mortgaged residential building with a land plot located at the address: gor. Shymkent, Katyn Kopr district, Toktarova St., house No. 3, owned by G.T. Abdurakhmanov, with an initial selling price of 12,061,495 tenge.

This decision by the Appellate Judicial Board for Civil and administrative cases of the South Kazakhstan Regional Court of 04/06/2015 was canceled and a new decision was made.

At the same time, the board indicated that by the decision of the Abaysky District Court of Shymkent dated 10.01.2014, which entered into force, the Bank's claim was satisfied, it was decided to judicially sell the mortgaged property - an apartment building with an adjacent land plot cadastral No. 19-309-101-183, located at:

South Kazakhstan region, Shymkent, Katyn Kopr district, Toktarova St., house No. 3, owned by Abdurakhmanov Gapyrzhan, having determined the initial sale price of the collateral in the amount of 12,061,495 tenge.

By virtue of Part 2 of Article 71 of the CPC, the circumstances established by a court decision that entered into force in a previously considered civil case are binding on the court and are not proven again in other civil cases involving the same persons.

Under these circumstances, the private bailiff had no grounds for ordering a re-assessment of the property. Consequently, Mr. Abdurakhmanov's claims cannot be satisfied.

The applicant's arguments about the violation by the private bailiff of the terms of the enforcement proceedings cannot in themselves serve as a basis for the cancellation of the disputed decision of the private bailiff in this enforcement proceeding.

Cancelled with the termination of the proceedings

             By the decision of the Petropavlovsk court No. 2 dated 05.05.2015, the claim of Yuri Nikolaevich Gudymenko to the private bailiff Nurpeisov Gafur Maratovich, Bogdanov Evgeny Anatolyevich for invalidation of the auction was satisfied.

The court declared invalid the auctions conducted through an electronic auction according to the protocol dated 11/25/2014 on the sale of an apartment owned by Gudymenko Yuri Nikolaevich.

By the decision of the Appellate Judicial Board for Civil and Administrative Cases of the North Kazakhstan Regional Court dated 08.07.2015, the civil proceedings were terminated with reference to paragraph 3 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated 20.06.2005. "On certain issues of the application by courts of legislation on enforcement proceedings," according to which the actions of a bailiff to execute an enforcement document or refusal to commit such actions may be appealed by the debtor or the recoverer.

In these cases, according to article 240-5 of the Civil Procedure Code of the Republic of Kazakhstan, the complaint is filed with the district court of the area served by the bailiff within ten days from the date of the commission of the action (refusal to perform the action) by the bailiff or from the day when the specified persons, who were not notified of the time and place of the action, became aware of it.

In this case, Gudymenko Yu.N. is a party to the enforcement proceedings – the debtor, the auctions were appointed within the framework of the enforcement proceedings, respectively, all actions of the bailiff committed within the framework of the enforcement proceedings and related to the sale of the debtor's property are subject to appeal by the debtor only in accordance with art. 240-5 CPC RK.

The legislator introduced a special norm – Article 240-5 of the CPC RK, which provides for the procedure for appealing actions (omissions) of a bailiff in the execution of a decision, which stipulates that disputes related to the execution of a court decision are considered within ten days, and also provided for a ten-day period for filing such a complaint.

The accelerated, shortened deadlines are caused by the fact that the stage of execution of the court decision is underway, therefore, the consideration of disputes in a lawsuit is not permissible and will contradict the principle of timely execution of enforcement documents, stipulated in art. 3 of the Law of the Republic of Kazakhstan dated 04/02/2010.

"On enforcement proceedings and the status of bailiffs." Thus, the board came to the conclusion that the debtor's claims for enforcement proceedings, Gudymenko Yu.N., against the private bailiff Nurpeisov G.M. for invalidation of the auction in the order of the claim proceedings are not subject to consideration.

At the same time, the board pointed out that this does not deprive Gudymenko Yu.N. of the right to appeal to the court against the actions of the bailiff in accordance with the procedure established by art. 240-5 of the CPC RK, in compliance with the requirements for the time limits for filing a complaint, and taking into account the right of Gudymenko Yu.N. to restore the time limits for filing a complaint, in the case of their passes.

We believe that in this case the case was not subject to termination by the court, since the grounds for termination are provided for in art. 247 of the CPC and the fact that the case was subject to consideration in accordance with art. 240-5 of the CPC is not a reason for termination.

The plaintiff's rights have not been violated, as the auction did not take place.

             By the decision of the Almaty District Court of Astana dated 26.06.2015, the claim of ForteBank JSC against the bailiff of the Astana Department of Justice Alpanov B.Zh., Bekeev Murat Ilyasovich, Kamysbaeva Rosa Perzhanovna regarding the recognition of illegal decisions of the bailiff of the Astana Department of Justice Alpanov B.Zh., on bidding dated 27.03.2015 was denied.

The claim is motivated by the fact that the bailiff unlawfully issued a contested resolution to put the apartment up for auction, despite the fact that the property is collateral for the borrower's residential mortgage loan.

The court found that the state bailiff Alpanov B.Zh., as part of the enforcement proceedings for recovery in favor of Bekeev M., issued a decree on the auction of the seized property dated 27.03.2015, in which he ruled:

to put up for auction the real estate owned by the debtor Kamysbaeva R.P. on the right of ownership- an apartment in Astana.

At the same time, according to the information on the website, it was established that the auctions scheduled for this resolution did not take place, which was confirmed by the protocol on the auction results dated 04/16/2015.

Taking into account the fact that the contested auctions did not take place, accordingly, the plaintiff's right was not violated, the court refused to satisfy the claims.

It seems that the court's conclusion is correct that the auction did not take place as a result, and the decision to hold the auction itself did not entail any consequences for the plaintiff.

By the decision of the Ust-Kamenogorsk City Court of the East Kazakhstan region dated 06/25/2015, the claim of Gulnar Anvarbekovna Mananbayeva to the private bailiff of the Regional Chamber of Private Bailiffs for the East Kazakhstan region, Ibraimov Aydin Seidgalievich, Akhmetzhanova Aigul Amangeldinovna on invalidation of electronic auctions dated 12/9/2014 and the purchase agreement dated 12/9/2014 was left without satisfaction.

The plaintiff, filing this claim, pointed out that on 05/22/2006, a bank loan agreement in the amount of 2,500,000 tenge was concluded between her and Tsesnabank JSC, and a General Loan Agreement was concluded between them at 17% for a period of 228 months until 2026.

As collateral for the mortgage loan, the plaintiff mortgaged an apartment located atUst-Kamenogorsk, Kazakhstan str.,70 apartment,130, which belongs to her by right of ownership. There is an overdue debt.

She believes that as a result of the auction on 09.12.2014, her rights and legitimate interests were violated, since she was not informed of the decision to initiate enforcement proceedings. Moreover, the private bailiff did not inform her of the subsequent executive actions and resolutions, as a result of which the auction took place.

The court denied the plaintiff's claim with reference to the fact that on 04/09/2014 G.A. Manabayeva was given permission to sell the seized property independently, and the debtor was duly notified of the upcoming auctions using the English and Dutch methods, which she refused to sign, however, there is a video in the case file that was shown at the court session.

A postal notification dated 11/25/2014 was sent by the private bailiff G.A. Mananbayeva about the upcoming auctions using the Dutch method, since the debtor refused to sign the submitted documents during the entire time of the enforcement actions.

As a result, the court of first instance concluded that there had been no violations during the bidding process by the private bailiff Ibraimov A.S..

The court recognized that the plaintiff had been duly notified of all the enforcement actions taken by the bailiff.

             By the decision of the Al-Farabiysky District Court of Shymkent dated 05.05.2015, in the claim of Uakov Sherim Zholdibayevich to private bailiff Turanov Nurmakhan Yesenovich, a branch of Bi-Logistics JSC, Kazkommertsbank JSC on the recognition of illegal actions of the bailiff aimed at organizing an electronic auction for the sale of an apartment, a resolution and an act of transfer of property to the balance, the cancellation of The electronic auction of 06/27/2014 was refused. The claim was motivated by the fact that the bailiff did not send the plaintiff a copy of the decision on the appointment of the assessment, the report on the assessment of the apartment.

By the decision of the Appellate Judicial Board for Civil and Administrative Cases of the South Kazakhstan Regional Court dated 16.06.2015, this decision was left unchanged, since on 16.06.2014, the location of the above-mentioned seized collateral is mkr. Vostok, 32 sq.3, Shymkent, the debtor, Sh.Zh. Uakov, received a notification from the bailiff about the upcoming electronic auction scheduled for 06/27/2014.

Attached to the notification are copies of the authorized resolution on foreclosure on mortgaged property, on the transfer of seized property for sale, and information about the electronic auction. It can be seen from the materials of the enforcement proceedings that the bailiff Turanov N.E. duly notified the debtor Uakov Sh.Zh. of the enforcement actions performed at his place of residence and at the location of the pledged property.

In addition, the bailiff has taken measures to personally serve a notice of the upcoming electronic auction. The case materials established that the representative of the plaintiff, U.Sh.Zh. - Seitkhanov A., received from the bailiff copies of the documents of the enforcement proceedings on 16.02.2015

Or, by the decision of the Ust-Kamenogorsk City Court of 02/25/2015, the claim of Serikbaev S.S. against the private bailiff Ibraimov M.O., Shkarpetin A.V., a third party of Bank CenterCredit JSC for invalidation of the auction was denied, and the claim of Andrey Viktorovich Shkarpetin against Serikbaev Serik Sovetkhanovich, a third party of Bank CenterCredit JSC I am satisfied with the release of the property from arrest. The claim of Serikbaev S.S. was motivated by the fact that the proposal for the voluntary execution of the enforcement document was sent by the bailiff seven days later. The decision to appoint a specialist for assessment was not handed to him, he was not familiar with the assessment and did not receive a copy of the report, therefore he was deprived of the right to appeal it. I do not agree with a certain market value of the property, considers it undervalued. In addition, he was not notified about the issuance by the bailiff of permission for the independent sale of the foreclosed property, did not receive copies of resolutions on the transfer of seized property for sale, notifications of upcoming auctions, and resolutions on failed auctions using the English method. Shkapertin A.V. He asked to satisfy his claim, referring to the fact that by the ruling of the judge of the Ust-Kamenogorsk City Court dated June 05, 2013, in order to secure the claim of Bank CenterCredit JSC against Serikbaev S.S. for debt collection, an apartment building with a land plot was seized.

The Cassation Judicial Board of the East Kazakhstan Regional Court dated September 28, 2015, agreeing with the conclusions of the court of first instance, indicated that the property value of 4,610,743 tenge, established by the specialist in report No. 1- 241/u dated June 06, 2014, corresponds to its market value. The postal items dated August 01, 2014 and September 22, 2014, attached to the case file, completely refute the arguments of the debtor's complaint and indicate that the debtor has received orders on the transfer of seized property for sale using the English and Dutch methods and notices of upcoming auctions. The Board pointed out that the court of first instance had come to a reasonable conclusion that the acquired Shkarpetin A.V. An apartment building with a plot of land located at 206 Abai Ave., Ust-Kamenogorsk, is subject to release from arrest imposed by a judge's ruling dated June 05, 2013. This conclusion is consistent with the provisions of Articles 264, 265 of the Civil Code, which establish that the owner has the right to demand the elimination of any violations of his right, even if these violations were not connected with the deprivation of possession.

It follows from the above examples that the courts refuse to satisfy the plaintiffs' claims if the debtor is duly notified of all the procedural actions performed.

The plaintiff's omission of the limitation period served as the basis for the denial of the claim.

By the decision of the Taraz City Court dated 04/9/2015 in the claim of M.U. Saydalieva to the private bailiff B.S. Karakulov, A.S. Sailybaev, N.N. Kalybayeva. R., GLOBAL CAPITAL LLP, to a third party - Bank Center Credit JSC on the cancellation of auctions for the sale of collateral, the bailiff's decision to hold repeated auctions, the decision to recognize secondary auctions as having taken place, the act of acceptance and transfer of documents and bringing the parties to their original position, on the recognition of the property assessment report dated 03.10.2013 illegal , the recognition of the illegal purchase and sale agreement dated 06/18/2013 and the barter agreement dated 12/14/2013 was refused.

The Judicial Board of Appeal for Civil and Administrative Cases of the Zhambyl Regional Court, leaving the said court decision unchanged by its decision of 11.06.2015, indicated that during the enforcement proceedings by a private bailiff, the acts it contested were generally handed over to the debtor personally. The Board indicated that the actions of the bailiff may be appealed by the party to the enforcement proceedings in accordance with Articles 240-5 of the CPC RK within ten days.

At the same time, not only the ten-day period was missed, but also the three-month period provided for filing a complaint about violated rights, provided for in art.280 of the CPC RK. Thus, the court of first instance reasonably concluded that it had satisfied the petition of the defendants' representatives to apply the limitation period to the plaintiff's claims.

Thus, part 1 of art.240-5 of the CPC RK sets a 10-day deadline for filing a complaint against the action (inaction) of the bailiff, and this is the procedural period. If the deadline was missed and there was no request for reinstatement, the application should have been returned.

The auction was conducted in compliance with the Rules for the sale of seized property, therefore the claim was denied.

By the decision of the Kostanay City Court of the Kostanay region dated 05/28/2015, left unchanged by the decisions of the Appellate Judicial Board for Civil and Administrative Cases of the Kostanay Regional Court dated 08/08/2015 and the cassation judicial board of the Kostanay Regional Court dated 08/19/2015, in the claim of Raisova Mariyash Smagulovna to Bi-Logistics Joint Stock Company, Zhusupova Gulstan Bagitzhanovna, a private bailiff Basenova Nesibeli Zarivanovna, Kazkomertsbank JSC, Raisova G.H. on the recognition of auctions dated 04/28/2015 through an electronic auction for the sale of a residential building with a land area of at.Zarechnoye, Kostanay district, Sadovaya St., No. 44, was refused invalid.

The courts pointed out that the plaintiff had not provided any objective and sufficient evidence to invalidate the contested bidding.

At the same time, the court objectively established that BiLogistics JSC in Kostanay region conducted auctions in compliance with the Rules for the sale of seized property, and there was no evidence of any violations of electronic bidding by the plaintiff to the court of first instance or the court of appeal.

The courts concluded that the actions of Bi-Logistics JSC, as well as the bailiff, were lawful for the sale of property in order to enforce the court decision.

The legitimate rights and interests of a person who was not a participant in the auction may not be violated.

By the decision of the specialized interdistrict economic court of Aktobe region dated 04/24/2015, the claim of IP Baizhanov A.O. to the State Institution "Shalkarsky district Financial Department of the Akimat of the Shalkarsky district" on invalidation of the protocol of the electronic auction dated 11/04/2014, the purchase and sale agreement of the school dated 11/04/2014 was denied.

As stated in the court's decision, the recognition of the auction for the disputed object of privatization as invalid entails the invalidity of the purchase and sale agreement. On November 04, 2015, an auction was held, following the results, an agreement No. 1 dated November 04, 2014 was concluded with the winner, Onumaganbet B.K.

The plaintiff did not participate in the above-mentioned auction and was not a participant in it. In fact, the plaintiff disputes the auction and indicates that the akimat is the owner of the building, the auction was conducted illegally. At the same time, the plaintiff was not a participant in the auction, therefore, the auction did not violate the legitimate rights and interests of the plaintiff.

While upholding the said decision, the Appellate Judicial board for Civil and Administrative Cases of the Aktobe Regional Court in a resolution dated 06/24/2015 indicated that, in accordance with paragraphs 2.3 of Article 8 of the Law of the Republic of Kazakhstan "On Administrative Procedures", a legal act of a state body terminates from the moment its requirements or instructions contained therein are fulfilled by the persons to whom it is addressed. this legal act.

Before the termination of a legal act, it may be revoked by the State body that adopted the legal act, by a higher State body or by a court.

Since the protocol on the results of the electronic auction was terminated by the conclusion of a purchase and sale agreement, it is not subject to appeal, and therefore, the proceedings in challenging the protocol should have been terminated by the court of first instance in accordance with paragraph 1 of Article 247 of the CPC RK.

However, given that the court denied the claim, which has the same legal consequences as the termination of the proceedings, the board considered the court's decision lawful and justified.

Proper notification of the debtor about the day of the auction, as well as his failure to apply to the court for a delay in the sale of the mortgage item, was the basis for rejecting the claim.

             By the decision of the Ust-Kamenogorsk City Court dated 02/03/2015, the claim of Dairbekov Zh.M. to JSC Bank Center Credit, Sharipov T.A. on the recognition of extrajudicial auctions as invalid was denied.The claim is motivated by the fact that the pledgee violated the procedure for appointing and holding auctions, namely: the notice dated 09/15/2014 on bidding was handed to the plaintiff only on 10/06/2014, at the same time he learned about the sale of his property.

The decisions of the Appellate Judicial Board for Civil and Administrative cases of the East Kazakhstan Regional Court dated 05/28/2015 and the Cassation Judicial Board of the East Kazakhstan Regional Court dated 10/01/2015 left this court decision unchanged.

At the same time, the higher authorities indicated that the debtor was J.M. Dairbekov at the address indicated in the mortgage agreement, 13-38 Michaelis St., and the known residential address of his mother, K. Bolpasheva. He was absent, as indicated by the acts of 04/18/2014 and 05/13/2014.

In accordance with paragraph 2 of Article 25 of the Law, upon receipt of a notification of non-fulfillment of the main obligation, the mortgagor has the right to file a lawsuit with the court claiming that there are no grounds for mortgage realization. The mortgagor also has the right to apply to the court for a delay in the implementation of the mortgage on the terms provided for in paragraph 4 of Article 21 of this Law.

However, the plaintiff, upon receiving notification of non-fulfillment of obligations, did not exercise these rights. As the analysis of cases according to the classifier shows, the majority of cases in this category are cases related to the sale of the debtor's property at auction within the framework of enforcement proceedings.

Since disputes related to the sale of the debtor's property at auction in the framework of enforcement proceedings account for a large number of cases, the generalization was carried out on the basis of the studied judicial acts according to the classifier for such cases.

Proper familiarization of the debtor with the assessment and compliance with the bidding procedure were the grounds for rejecting the claim.

By the decision of the Ust-Kamenogorsk City Court of 23.01.2015, which was left unchanged by the decision of the appellate judicial Board for civil and administrative cases of the East Kazakhstan Regional Court of 04.03.2015, the claim of Vakhitova M.N. to the private bailiff of the Regional Board of Private Bailiffs of East Kazakhstan region Ibraimov A.S., third parties of Kazkommertsbank JSC, Ulishcheva was denied. L.V. on the recognition of the auction as invalid.

The claim is motivated by the fact that the bailiff violated the debtor's rights to independently sell the property - a residential building located in Opytnoe Pole, Stroitelnaya str., 2-4, at a price not lower than the estimated price, as well as the procedure for bidding, which was not notified by registered mail with delivery notification.

Leaving the decision of the court of first instance unchanged, the board indicated that by the notification dated August 13, 2014, received by M.N. Vakhitova personally on 08/14/2014, the debtor was familiar with the assessment. On the same day, permission was given for the independent sale of the property, which was handed over to Tleubayeva.

The plaintiff's failure to provide evidence of the participation of affiliated companies in the disputed auction was the basis for rejecting the claim.

By the decision of the Ust-Kamenogorsk City Court of the East Kazakhstan region dated 10.02.2015, the claim of Vityazeva L.K. to the private bailiff Zhangudeeva Z.F., Bank CenterCredit JSC on the recognition of the electronic auction as invalid was denied.

By filing this claim, the plaintiff points out that enforcement proceedings against L.K. Vityazeva in favor of Bank CenterCredit JSC are pending against Z.F. Zhangudeeva, a private bailiff, with foreclosure on the mortgaged property, a two-room apartment. On 09.09.2014, the public auction for the sale of the above-mentioned apartment was declared invalid due to the lack of bids from participants.

Subsequently, on November 21, 2014, the collateral was sold at a repeated electronic auction by lowering the value of the property for 7,262,521 tenge to the winner of the auction, Bank CenterCredit JSC.

Therefore, this auction cannot be legitimate. The court of first instance motivated its refusal of the claim by the fact that the plaintiff's party had not provided evidence of the participation of affiliated persons in the disputed auction in support of the claims to the court.

This decision was left unchanged by the decision of the Appellate Judicial Board for Civil and Administrative Cases of the East Kazakhstan Regional Court dated 05/12/2015, with reference to the fact that the plaintiff's arguments about the illegality of the auction were declared untenable by the court, since the plaintiff's party did not provide evidence of the participation of affiliated persons in the disputed auction, whereas, on the contrary, V.E. Bushin, questioned at the court session as a witness, testified that on 11/21/2014 he actually took part in an electronic auction, where he expected to purchase this apartment at a much lower price.

The Board concluded that the auctions conducted by the bank were consistent with the norms of substantive law and the terms of bank loan agreements, and the plaintiff's rights had not been violated.

By the decision of the Ust-Kamenogorsk City Court of the East Kazakhstan region dated 27.03.2015, left unchanged by the decision of the Appellate Judicial Board for Civil and Administrative Cases of the East Kazakhstan Regional Court dated 12.05.2015, the claim of Amanova G.S. to JSC "Bank Center Credit" on recognition of the results of the auction illegal was denied.

Amanova G.S. motivated her claim by the fact that by a court decision dated November 18, 2009, debts under a bank loan agreement in the amount of 5,485,825 tenge were recovered from her and foreclosure was levied on the apartment.

The Bank began the out-of-court sale procedure, and therefore, on 08/09. 2011, it drew up a notice of bidding, which it did not notify her about.

She also does not know the result of these trades. On February 15, 2012, the bank again issued a notice of bidding, which she reviewed on February 24, 2012, while in prison.

The appellate instance left the judicial act of the first instance unchanged and pointed out that, in accordance with paragraph 2 of Article 25 of the Law "On Mortgage of Immovable Property", after receiving notification of non-fulfillment of the main obligation, the mortgagor G.S. Amanova did not file a lawsuit with the court claiming that there were no grounds for mortgage sale, a written refusal to carry out the sale of mortgaged real estate in She has not submitted an out-of-court document registered by the authorized body to the Bank.

The Board concluded that the auctions conducted by Bank CenterCredit JSC were consistent with the norms of substantive law and the terms of the bank loan agreements dated December 25, 2006, December 2, 2008 and the mortgage agreement dated February 28, 2007, and therefore the rights of Amanova G.S. were not violated.

The application was returned due to the lack of jurisdiction by the Judge of the Zhetysu District Court of Almaty by a ruling dated 23.01.2015. Yarysh Yaroslav Valentinovich's application for the actions of a private bailiff S.S. Zhumasheva was returned due to the lack of jurisdiction.

At the same time, the court stated in the ruling that, according to paragraph 1 of art. 240-5 of the CPC RK, a complaint may be filed against the actions (inaction) of the bailiff during the enforcement proceedings or against the refusal to commit such actions by the recoverer or debtor. The complaint is filed with the district court of the area served by the bailiff within ten days from the date of the action (refusal to perform the action) or from the day when the recoverer or debtor, who was not notified of the time and place of the action of the bailiff, became aware of it.

At the same time, the applicant is appealing against the actions of Saltanat Sangalievna Zhumasheva, the bailiff of the Almaty city Executive District, to initiate enforcement proceedings and declare the decision to initiate enforcement proceedings illegal.

In force .Paragraph 5, paragraph 19, of the Regulatory Resolution "On certain issues of the application by courts of the Norms of Chapter 27 of the CPC", an application challenging the action (inaction) of a bailiff committed by him in enforcement proceedings during the execution of a judicial act, in accordance with part 1 of Article 240-5 of the CPC, is filed with the district (city) court at the place of execution of the enforcement actions. In such circumstances, complaints are filed with the court of the territorial area served by the bailiff or at the place where the enforcement actions were performed.

The statement of claim was returned due to missing the deadline.

By the ruling of the judge of the court No. 2 of Uralsk, West Kazakhstan region, dated 04/03/2015, the statement of claim of Technosila LTD LLP was returned to the private bailiff S.M. Tynyshkaliev, Valentina Timofeevna Tolkacheva on invalidation of the auction dated 11/04/2014, cancellation of the bidding protocol dated 11/04/2014, invalidation of the purchase and sale agreement dated 11/07/2014, with return the parties to their original position .

In accordance with Articles 240-5, Part 1 of the CPC, a complaint against the actions (inaction) of a bailiff is filed with the district court within ten days from the date of the action (refusal to perform the action) or from the day when the recoverer or debtor, who was not notified of the time and place of the action of the bailiff, became aware of it.. The statutory time limit for filing a complaint is a procedural time limit, therefore it is subject to the provisions provided for in Chapter 10 of the CPC.

The court of first instance concluded that if the recoverer or the debtor filed a complaint after the expiration of the procedural period established by Article 240-5 of the CPC, and there is no request to restore the missed deadline, such complaints are not subject to consideration and are returned to the applicant by court ruling according to the rules of Article 126 of the CPC.

By the ruling of the Appellate Judicial Board for Civil and Administrative Cases of the West Kazakhstan Regional Court dated 05/12/2015, this ruling was canceled, indicating that, as can be seen from the reasoning part of the ruling, the judge, returning the statement of claim, indicated that Technosila LTD LLP had missed the deadline set by paragraph 1 of art.240-5 of the CPC for appealing actions the bailiff, which, by virtue of paragraph 1 of Article 126 of the CPC, excludes the possibility of considering the application without restoring the missed deadline.

However, according to the submitted application, the LLP disputes not only the actions of the bailiff in appointing and conducting the auction, but also the purchase and sale agreement concluded by the bailiff with the auction winner, Tolkacheva V.T., who is listed in the application as the second defendant.

In such circumstances, the LLP's application was subject to consideration in the order of claim proceedings and could not be returned on the grounds specified in the ruling.

By the decision of the judge of Pavlodar City Court dated 28.08.2015. at first, it was left without movement, and then, by the ruling of 11.09.2015, the statement of claim of Lyudmila Ivanovna Kamratova against BCK JSC was returnedTo Avdeev Nikolay Ivanovich, to the private bailiff Kuandykova A.A. on the recognition of the bidding and notification as invalid.

The judge left the claim without motion due to the fact that the plaintiff did not attach copies of the appealed decisions of the bailiff on putting the seized property up for auction and the protocol to the application.

The ruling also states that the plaintiff requests that the auction for the sale of the apartment be declared invalid. Accordingly, the claim is of a proprietary nature. However, the plaintiff did not specify the price of the claim in the statement of claim.

That is, the plaintiff must provide evidence to confirm the value of the amount from which the state fee should have been paid in the amount of 1% of the cost. In addition, the plaintiff needs to clarify the claims and involve as defendants persons whose rights and interests are affected by these claims.

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