Response form to the Bank's Statement of Claim for debt collection under a Bank loan Agreement secured by a car
To the Bostandyk District Court of Almaty
to the judge ..........
phone: 8-727 333-12-21, 333-12-21
address: Almaty, md. Orbit, 20A
email address: 020306@sud.kz
from the Defendant: …………….
IIN: №.................
phone: 8 747 .............
city of Almaty, ………………
Representative by proxy:
Sarzhanov Galymzhan Turlybekovich
IIN: 850722301036.
Almaty, Medeu district,050002, Zhibek Zholy ave.,
50 Business center Block, office No. 202.
sgt.kz@mail.ru,
tel.: 8 707 (708) 578 57 58 ( WhatsApp/Viber).
Plaintiff: Tsesnabank JSC
Republic of Kazakhstan, 050059, Almaty,
Al-Farabi Ave., 15, building 4. Nurly-Tau Business Center.
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to file a claim for recovery of the amount owed under a Bank Loan Agreement
On September 25, 2013, a loan agreement was concluded between the plaintiff and the defendant № ..............., on the basis of which the defendant was granted a loan in the amount of 3,533,696 tenge for a period of 72 months at 23.6% per annum for the purchase of a car.
In order to ensure the fulfillment of its obligations, the defendant provided collateral to the bank on the basis of a pledge agreement № ................... dated September 25, 2013, NISSAN JUKE car, registration number .......ENA05, year of manufacture 2013, body №......................, the color is metallic grey. As of 09/08/2015, there were debts in the amount of 4,285,332.59 tenge, of which: 2,851,517.07 tenge principal debt, 24,592.99 tenge accrued remuneration, 381,307.25 tenge overdue principal debt, 674,545.68 tenge overdue remuneration, 353,369.60 tenge penalty. According to account statement no. KZ..................., as well as the stubs of the receipt and cash order for the period 01.09.2013 to 31.07.2016, Borrowers made payments regularly without delay according to the repayment schedule, a total of 3,165,000 were paid without interruption. tenge.
However, the State Revenue Department for the Nauryzbay district of Almaty seized all accounts of the Borrower, as evidenced by a letter from the bank and a resolution of the Department of Internal Affairs for the Nauryzbay district of Almaty due to "Late submission of tax reports." After the seizure by the Tax Authorities, the Borrowers did not stop fulfilling their debt obligations and also tried to unblock all accounts as soon as possible and solve the problem.
On the part of the UGD in the Nauryzbay district of Almaty, no funds were written off, which were transferred due to the fulfillment of debt obligations. Despite all the verbal requests and appeals to the bank to somehow resolve the situation and/or transfer money through another account by paying off the loan, the Bank filed a lawsuit with the court to recover the amount owed and transfer the property as a mortgage. Being a decent and responsible person, gr. ......, never refused to fulfill his debt obligations to Tsesnabank JSC, and was always open to constructive dialogues, despite the current situation with the tax authority, he continued to fulfill his debt obligations without interruption.
However, the Bank itself has not undertaken any constructive dialogue to resolve the current situation. To date, the defendant gr....... has no debt to the bank, since after the account was unblocked by the Tax Authority, the entire amount was transferred to repay the loan. In accordance with Part 3 of Article 365 of the Civil Code of the Republic of Kazakhstan, "The debtor is not considered overdue until the obligation cannot be fulfilled due to the delay of the creditor." In accordance with Part 1 of Article 359 of the Civil Code of the Republic of Kazakhstan. "The debtor is responsible for non-fulfillment and (or) improper fulfillment of obligations in the presence of fault, unless otherwise provided by law or contract. The debtor is found innocent if he proves that he has taken all measures in his power to properly fulfill the obligation." Also, in accordance with Part 1 of Article 364 of the Civil Code of the Republic of Kazakhstan, "If non-fulfillment or improper fulfillment of obligations occurred due to the fault of both parties, the court accordingly reduces the amount of liability of the debtor." In an article in the Legal Gazette dated February 17, 2011, written by such prominent statesmen as: M. Alimbekov, former Chairman of the Supreme Court of the Republic of Kazakhstan and D. Tumabekov, judge of the Supreme Court of the Republic of Kazakhstan, states that - QUOTE: " ... banks do not submit timely demands to the court to recover from the borrower the amount owed on the principal debt, on remuneration (interest), as a result of which the amounts of penalties (penalties) to be collected are deliberately increased, which ultimately leads to an increase in the amount of total debt. Thus, the Plaintiff refers to art. 272 of the Civil Code of the Republic of Kazakhstan, the obligation must be performed properly in accordance with the terms of the obligation and the requirements of the law, and in the absence of such conditions and requirements - in accordance with business practices or other commonly imposed requirements, although he does not fulfill the obligations in full and on the terms of the contract, which raises doubts about the good faith performance of the obligation. In confirmation of the words according to the Civil Code of the Republic of Kazakhstan. If the borrower violates the deadline set for repayment of the next part of the loan item and (or) payment of remuneration for more than forty calendar days.
That is, according to the Civil Code of the Republic of Kazakhstan, the defendant fulfilled his obligations and still fulfills them. According to art. 359 of the Civil Code of the Republic of Kazakhstan, the grounds for liability for breach of an obligation. The debtor is responsible for non-fulfillment and (or) improper fulfillment of the obligation in the presence of fault, unless otherwise provided by law or contract. The debtor is found innocent if he proves that he has taken all measures in his power to properly fulfill the obligation.
According to clause 3. of Article 366 of the Civil Code of the Republic of Kazakhstan, the debtor is not obliged to pay remuneration (interest) for the time of the creditor's delay. According to Article 36 of the Law of the Republic of Kazakhstan "On Banks and Banking Activities in the Republic of Kazakhstan", upon the occurrence of a delay in fulfilling an obligation under a bank loan agreement, the bank is obliged to notify the borrower in the manner provided for in the bank loan agreement of the need to make payments under the bank loan agreement and of the consequences of the borrower's failure to fulfill its obligations.
Also, in the demand for early fulfillment of obligations, we do not agree with the above unreasonable amounts, since it does not take into account previously made payments. In addition, after 40 days, the plaintiff already had the right to apply to the court with a claim for recovery of the debt. However, despite the fact that both oral and written correspondence was conducted between the Bank and the defendant, the plaintiff deliberately delayed the deadline for filing a lawsuit, thereby artificially overestimating the amount of remuneration due. Based on the above, I believe that the amount of the Defendant's debt to the Bank should be calculated in accordance with the principles of good faith, reasonableness and fairness, therefore, it is necessary to take into account the early payments made. Being a decent and responsible person, the defendant has never refused to fulfill his debt obligations to the Bank.
However, the Bank itself has not undertaken any constructive dialogue to resolve the current situation. Also, after the cancellation of the court's decision, we sent an application to the plaintiff for concluding a mediation agreement and continuing to fulfill contractual obligations. The plaintiff then replied that the bank needed time to conclude a mediation agreement.
Based on the above, I ask the Court to take into account non-disruptive payments due to repayment of the loan by the defendant., and the unreasonable inaction of Tsesnabank JSC, for a long time, which led to an excessive increase in the amount of remuneration, and to make a decision in accordance with the principles of good faith, reasonableness and fairness. Regarding the accrued principal debt and the repayment rate, the parties disagree, since this amount is a speculative benefit for Tsesnabank JSC, since the defendant currently has no overdue debt to the plaintiff, as well as the amount of the state fee.
I ASK THE COURT:
Tsesnabank JSC's claims against gr...... partially satisfied;
Regarding the accrued principal debt and the repayment rate of the claim, we do not agree and the amount does not correspond to reality since there was no late payment;
We do not agree with the accrued penalties of the claim, it should be completely removed due to the absence of late payment;
Regarding the Seizure, a NISSAN JUKE motor vehicle, registration number .....ENA05, year of manufacture 2013, body №..............., color – metallic grey belonging to gr. ......... on the right of ownership, the pledge of Tsesnabank JSC is to refuse.
Sincerely, Proxy representative: _______________/ Sarzhanov G.T. "___"___________201__ G.
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