On the assignment of the obligation to perform an action to withdraw a pledge on a car
No. 6001-24-00-6ap/2513 dated January 30, 2025
Plaintiff: K.M.
Respondent: GU "Police Department" (hereinafter referred to as the Department)
The subject of the dispute: on the assignment of the obligation to perform an action to withdraw a pledge on a car
Review of the plaintiff's cassation complaint PLOT:
On May 26, 2020, the plaintiff and Zh.B. signed a car purchase and sale agreement, under the terms of which the plaintiff undertook to transfer the Car to the plaintiff's ownership, and the plaintiff to pay 37,000,000 tenge by February 28, 2021. LLP "E" is jointly and severally responsible with the buyer for the execution of this agreement.
On December 4, 2020, M LLP, Zh.B. and RB signed an agreement under which MFO LLP provided the plaintiff with a microcredit in the amount of 20,000,000 tenge for a period until November 16, 2022, with remuneration in the amount of 3.73% of the loan amount per month. In order to ensure the fulfillment of obligations under this agreement, the plaintiff provided the Car as collateral.
By the decision of the city court of May 26, 2022, which entered into force, the Car purchase and sale agreement dated May 26, 2020, concluded between the plaintiff and Zh.B., was terminated.
On January 17, 2023, by a decision of the permanent court of Arbitration in solidarity with J.B. and R.B., the amount of debt in the amount of 22,803,458 tenge, the arbitration fee – 456,069 tenge, the commission fee - 300 tenge, and the cost of paying the state fee – 17,250 tenge were collected in favor of MFO LLP.
On February 15, 2023, the district court of the city of MFO LLP issued a writ of execution to recover the specified debt.
On May 4, 2023, by a decision of the district court, K.M.'s claim against MFO LLP and Zh.B. for recognizing the pledge agreement as terminated and releasing the property from seizure was partially satisfied. It was decided to release the Car from the arrest imposed by a private bailiff on the basis of a decree dated March 14, 2023.
On July 17, 2023, the decision of the SMAS satisfied K.M.'s claim to the CHSI: the decision on the seizure of the Car dated May 11, 2023 was declared illegal and the decision on the seizure of the Car dated May 11, 2023 was canceled.
On October 24, 2023, the plaintiff applied to the Department with a request to withdraw the Car from the pledge in the electronic database.
On November 6, 2023, the plaintiff was provided with a response stating that the registration of the pledge in the information resources of the Ministry of Internal Affairs of the Republic of Kazakhstan cannot be terminated, since the restriction was registered on the pledge obligation to MFO LLP, which is the mortgagee of the Car, there were no documents from the latter attesting to the termination of the pledge obligations, while neither one of the available court decisions does not reflect the fact of termination of the pledge agreement. The response also states that the decision on the termination of collateral obligations is in the civil law field with the mandatory participation of the mortgagee, who is interested in repayment of the loan, therefore, the Administrative Division of the DP has no right to terminate the registration of collateral for the Car.
Disagreeing with this answer, the plaintiff appealed to the court with a demand to oblige the defendant to remove the Car from the pledge, arguing that the defendant was misinterpreting the judicial acts that had entered into force.
Judicial acts:
I am the authority: the claim was denied.
Appeal: the decision of the court of first instance remains unchanged.
Cassation: judicial acts in this case are upheld.
Conclusions: rejecting the claim, SMAS proceeded from the fact that (key arguments):
in accordance with paragraph 1 of Article 322 of the Civil Code of the Republic of Kazakhstan, the pledge is terminated: upon termination of the obligation secured by the pledge; at the request of the pledgor, if there are grounds provided for in paragraph 3 of Article 312 of this Code; in the event of the death of the pledged thing or termination of the pledged right, if the pledgor has not exercised the right provided for in paragraph 2 of Article 314 of this Code; in in case of sale of the pledged property at public auction, as well as in the case when its realization proved impossible (Article 319 of this Code);
In paragraph 62 of the Rules for State Registration and Accounting of Certain Types of Vehicles by Vehicle Identification Number, approved by Order of the Minister of Internal Affairs of the Republic of Kazakhstan No. 862 dated December 2, 2014 (Rules), it is determined that the de-registration of a vehicle ..., which is indicated by courts, law enforcement agencies and state revenue authorities or other authorities in accordance with in cases and in accordance with the procedure provided for by the legislation of the Republic of Kazakhstan, bans or restrictions on the change of ownership rights have been introduced, which is carried out after
submission of documents issued by the relevant authorities and attesting to the absence of the specified prohibitions or restrictions, or by decision of the judicial authorities;
Paragraph 63 of the Rules stipulates that for a vehicle of an individual or legal entity provided as collateral to banks and (or) pawnshops, other persons against a loan, as well as individuals or legal entities, upon presentation of a copy of the pledge agreement (pledge ticket) issued by banks and (or) pawnshops, other persons, restrictions are imposed on their removal from the register before the fulfillment of the pledge obligation. At the same time, appropriate marks are made in the EIS;
The plaintiff asked the defendant to remove the restrictions on registration actions from the Car in connection with the termination of the contract of sale, however, based on the above rules, it follows that the plaintiff did not provide documents or evidence to remove the restrictions.;
there is no evidence of the fulfillment of the loan agreement, the lender's statement, or a court decision on the fulfillment of the terms or on the termination of the agreement and the termination of obligations under it, these circumstances are not confirmed by the available judicial acts.
Thus, the court of first instance stated that the defendant lawfully refused to remove restrictions from the Car, there were no violations of the plaintiff's rights, freedoms and legitimate interests, the defendant's actions were committed within the limits of his authority in compliance with the requirements of the legislation of the Republic of Kazakhstan, therefore, there are no legal grounds for forcing him to adopt a favorable administrative act, therefore, the claim not to be satisfied.
While leaving the SMAS decision unchanged, the Court of Appeal agreed with its conclusions in full, pointing out that the judicial acts referred to by the plaintiff are not grounds for satisfying the claim, since these court decisions did not terminate the Pledge Agreement.
Having checked the conclusions of the courts of previous instances for their compliance with the circumstances of the case and the applicable norms of industry and procedural law, the judicial board considered that the judicial acts appealed by the cassator were rendered lawfully and reasonably.
The courts clarified the circumstances of the dispute to the extent sufficient for its legal resolution, and correctly applied the norms of substantive and procedural law. In this regard, there were no legal grounds for the cancellation or amendment of the judicial acts contested by the cassator.
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