Foreclosure on the mortgaged property of debtors with determination of the initial selling price

No. 6001-23-00-6ap/800 (2) dated August 2, 2023

Plaintiff: the head of KH "K" K.

Defendant: HSI D.

Interested parties: G., LLP "SMP"

           The subject of the dispute: the contesting of actions and acts.

Review on cassation of the interested party of SMP LLP.

PLOT:

By the decision of the judicial board for civil cases of the regional court dated October 4, 2022, foreclosure was levied on the mortgaged property of debtors with the determination of the initial sale price. On October 19, 2022, the court issued 3 (three) writ of execution.

The recoverer is Credit Partnership LLP.

By the decree of CHSI D. dated November 7, 2022, enforcement proceedings were initiated and the property of the debtors was seized. On the same day, the bailiff gave permission to debtor G. to independently sell the seized property until December 10, 2022.

On November 8, 2022, the bailiff sent K. (by registered mail) and his representative K. (by e-mail) written permission to sell the above-mentioned mortgaged property by December 10, 2022.

This permission is for not delivered, the mail was returned. There is no evidence of timely receipt of K.'s e-mail to the court.

By the resolutions of the CHSI D. dated December 13, 2022, the debtors' property was transferred for sale.

By a decree of the bailiff dated December 29, 2022, the auction was declared invalid, as fewer than two participants were registered.

Judicial acts:

1st instance: the claim was denied.

Appeal: the court's decision is overturned, the claim is satisfied.

Cassation: the appeal ruling is upheld.

Conclusions:

When deciding to dismiss the claim, the court of first instance proceeded from the fact that the opportunity provided by the bailiff on his own initiative to debtors to independently sell their property did not detract from their rights and did not contradict the law, the auction was conducted without violations.

The court of appeal, canceling the court's decision and making a new decision to satisfy the claim, reasonably assumed that the court of first instance had not given a legal assessment to the plaintiffs' arguments about the defendant's failure to notify them of the initiation of enforcement proceedings.

In accordance with paragraph 3 of Article 9 of the Law of the Republic of Kazakhstan "On Enforcement Proceedings and the Status of Bailiffs" (hereinafter referred to as the Law), the bailiff sends for execution a resolution on the initiation of enforcement proceedings with a copy of the enforcement document attached.

It was established that CHSI D. did not notify the debtors about the initiation of enforcement proceedings on November 7, 2022. Moreover, the defendant did not deny that these enforcement proceedings had been initiated against the plaintiffs without a corresponding statement from the recoverer, which was not based on the requirements of article 37 of the Law.

According to paragraph 2 of Article 74 of the Law, the bailiff, after the seizure and assessment of property and before the sale of property, simultaneously with familiarization with the assessment report, grants the debtor, upon his written request, the right to independently sell the seized property within a period of no more than one month at a cost not lower than seventy-five percent of its estimated value indicated in the assessment report. an assessment that has been completed no more than one year ago.

These requirements of the law were violated by the bailiff and the debtors' right to self-realization of property on their own initiative was limited before the sale of property.

The law provides the debtor with the opportunity to apply to the bailiff with an appropriate statement before the actual sale of the property. However, the debtors did not file this application.

Moreover, debtor K. was not familiar with this bailiff's permission dated November 8, 2022. Despite receiving the debtor's permission for the sale, she did not manage to sell her property, because the initiative did not come from her and there was no readiness for implementation. The right to self-dispose of seized property may be used by the debtor no more than once in one enforcement proceeding.

Therefore, by imposing a limited period for the sale of property on debtors without their will, the bailiff, in fact, deprived them of the opportunity to further exercise such a right within a month when a potential buyer appeared.

These circumstances indicate that the bailiff committed procedural violations, improper observance of the rights and legitimate interests of the plaintiff as a party to the enforcement proceedings.

 

 

 

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