On recognizing the actions of the CSR as illegal and forcing the lifting of the arrest from real estate, and prohibiting the debtor from performing certain actions

No. 6001-22-00-6ap/2467 dated August 2, 2023

Plaintiff: I.Zh.

Defendant: CHSI B.

Interested person: I.T.

The subject of the dispute: on recognizing the actions of the CSI at the request of the debtor as illegal and forcing them to take enforcement actions on it as soon as possible by issuing a resolution to lift the seizure of immovable property, on revoking the resolution prohibiting the debtor from performing certain actions dated 06/18/2021, on imposing the obligation to immediately issue a resolution suspending enforcement proceedings based on a ruling on taking measures to secure the claim.

Review of the plaintiff's cassation appeal.

PLOT:

By the decision of the district court of November 24, 2020, the claim of I.Zh. to I.T. on the division of jointly acquired property was partially satisfied. I.Zh. transferred to his personal property: an apartment in the city of "A" and an apartment building with a plot of land in the city of "T". I.T.'s personal property was transferred to: an apartment building in the city of "A" and an apartment in the city of "T". From I.T. in favor of I.Zh., monetary compensation in the amount of 3.5 tenge was collected.

By the resolution of the judicial board for civil cases of the court of the city of "A" dated March 2, 2021, the decision of the Karatau District Court of the city of "A" dated 11/24/2020 was amended. The monetary compensation collected from I.T., in favor of I.Zh., increased to 9.9 tenge at the expense of ½ shares in an apartment building in the city of "A" and in an apartment in the city of "T". Also, monetary compensation in the amount of 23.3 tenge was collected from I.Zh. in favor of I.T. at the expense of ½ shares in an apartment in the city of "A" and in an apartment building with a land plot in the city of "T". Upon receiving monetary compensation, I.T. loses his right to shares in the apartment and apartment building awarded to I.J. Upon receiving monetary compensation, I.Zh. loses his right to shares in the housing and apartment awarded to I.T.

By the resolutions of CHSI B. dated June 18, 2021, enforcement proceedings were initiated for No.90/21-79-939 on recovery from I.Zh. in favor of I.T. monetary compensation in the amount of 23.3 tenge, no.91/21-79-939 on the transfer to the personal ownership of I.T. apartment located in the city of "T", also enforcement proceedings for No. 92/21-79-939 on the transfer to the personal ownership of I.T. of a residential building located in the city of "A". On the same day, measures were taken to ensure the execution of enforcement documents within the framework of the enforcement proceedings of the CSI.

Orders have been issued to seize property and prohibit the debtor from performing certain actions. On July 11, 2022, debtor I.Zh. filed a petition to the CHSI for the lifting of the seizure of immovable property and the cancellation of the decree prohibiting the debtor from performing certain actions. On July 14, 2022, the CSI responded to the above-mentioned petition with a letter stating that the arrest would be lifted only after the termination of enforcement proceedings.

On July 18, 2022, the plaintiff filed a lawsuit against the defendant to declare the actions of the CSI illegal at the request of July 11, 2022 and to impose the obligation to take executive action as soon as possible with the issuance of a resolution to lift the arrest on apartments; to cancel the resolution prohibiting the debtor from taking certain actions to dispose of property.

By a court ruling dated July 25, 2022, measures were taken to secure the claim. Until the case is resolved on its merits, it is prohibited to perform certain actions, and the recovery of an enforcement document is suspended, which is being challenged in court. The disputed act has been suspended.

On August 15, 2022, the plaintiff filed an application with the court for an increase in claims, which also asked the court to oblige the defendant to immediately issue a decision to suspend enforcement proceedings based on the ruling on taking measures to secure the claim dated July 25, 2022.

Judicial acts:

1st instance: the claim is partially satisfied.

The actions of CHSI B. regarding the failure to issue judgments at the request of debtor I.Zh. dated July 11, 2022, were declared illegal.

The defendant is obligated to properly consider the petition of I.J. dated July 11, 2022 for the lifting of the seizure of immovable property and for the cancellation of the decree prohibiting the debtor from performing certain actions by issuing appropriate resolutions.

Appeal: the court's decision has been changed, the claim has been denied.

Cassation: the decision of the appeal is overturned, the court's decision is upheld.

Conclusions: Partially satisfying the claim, the court of first instance came to the reasonable conclusion that the plaintiff's petition dated July 11, 2022 to lift the seizure of immovable property and cancel the decree prohibiting the debtor from performing certain actions had not been properly considered and appropriate decisions had not been made on them, which led to a violation of the plaintiff's legitimate interests.

The court of appeal, disagreeing with such conclusions, changed the decision of the court of first instance and dismissed the claim, proceeding from the following.

By Order of the Minister of Justice of the Republic of Kazakhstan No. 148 dated March 28, 2019 "On approval of standard forms of decisions of private bailiffs", 40 standard forms of decisions of the Civil Court were approved. Among the specified standard forms, there is no resolution on the refusal to satisfy the petition for the lifting of the seizure of property and a resolution on the refusal to satisfy the petition for the cancellation of the decree prohibiting the debtor from performing certain actions.

If the CSI comes to the conclusion that there is no reason to lift the arrest and cancel the decision prohibiting the debtor from performing certain actions, the refusal to satisfy such petitions does not require the issuance of rulings.

As can be seen from the contents of the letter dated July 14, 2022, sent by the CSI to the plaintiff, the CSI clarified the requirements of Article 85 of the Law of the Republic of Kazakhstan "On Enforcement Proceedings and the Status of Bailiffs" (hereinafter referred to as the Law), which regulates the consequences of declaring an electronic auction invalid, although the plaintiff requests that the seizure of real estate be lifted, citing the disproportionality of their value to the amount to be recovered, and also asks to cancel the decree prohibiting the debtor from performing certain actions.

The courts have correctly established the circumstances of the case that are important for the proper resolution of the case. However, the court of appeal incorrectly applied the norms of substantive law.

In accordance with article 4 of the Law of the Republic of Kazakhstan "On Legal Acts", the system of legislation of the Republic of Kazakhstan consists of the Constitution of the Republic of Kazakhstan, its corresponding legislative acts, other regulatory legal acts, including regulatory decisions of the Constitutional Court of the Republic of Kazakhstan and the Supreme Court of the Republic of Kazakhstan.

The integrity of the legislative system of the Republic of Kazakhstan is ensured through: compliance with the hierarchy of regulatory legal acts established by the Constitution of the Republic of Kazakhstan and this Law.

According to subparagraph 3) of paragraph 2 of Article 126 of the Law, the bailiff is obliged to consider, within five working days, applications for enforcement proceedings and petitions of the parties and make decisions on them, explain the terms and procedure for their appeal and protest. The Law obliges the CSI to consider and rule on applications for enforcement proceedings and petitions of the parties within five working days.

As the court of first instance correctly noted, the plaintiff in his petition asks the Court to perform certain actions, and these actions can only be performed by passing resolutions.

The conclusions of the court of appeal on the absence in the order of standard forms of the decision to refuse to satisfy the petition for the lifting of the seizure of property and the decision to refuse to satisfy the petition for the cancellation of the decree prohibiting the debtor from performing certain actions are erroneous.

Thus, the court of first instance came to a reasonable conclusion that the defendant committed procedural violations, improper observance of the rights and legitimate interests of the plaintiff as a party to the enforcement proceedings (debtor).

 

 

 

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