Review of a Statement of claim for debt collection under a bank loan agreement
To the Zhezkazgan City Court
Judge Eshmaganbet A.D.
from the defendant: A.B.A.
IIN.....
Moscow region, city .., house No. 29, sq. no. 1
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to file a claim for debt collection under a bank loan agreement
Q, your proceedings include civil case No. 3518-22-00-2/857, on the claim of Rishat Ravilevich Kaipov (hereinafter referred to as the Plaintiff) against A.B.A. (hereinafter referred to as the Defendant) for debt collection under a bank loan agreement, and you disagree with this claim on the following grounds:
In accordance with the Loan Agreement No. 956991002 dated 06/14/2019 (hereinafter referred to as the Agreement), concluded between Fincap LLP ("Fincap") – kokekz and the Defendant, under the terms of which the defendant was granted a loan in the amount of 50,000 tenge, with the payment of remuneration by the defendant for the use of the loan.
Thus, the Plaintiff in his Claim cites the following arguments that,
Fincap LLP ("Fincap") - kokekz on 07/28/2020, ceded the rights of claim under this
The agreement.
At the moment, the copyright holder of the Contract on the basis of the Contract of Assignment of the Right of Claim is Rishat Ravilevich Kaipov.
At the time of the assignment of the Right of claim, the Defendant's debt amounted to 59940 tenge, of which:
The main debt is 50,000 tenge;
The amount of remuneration is 4940 tenge;
Overdue remuneration - 0 tenge;
Penalty (penalty fee) – 5000 tenge;
The fine is 0 tenge.
- We agree with these arguments because in reality we have received
due to financial difficulties, the loan received by us was not returned on time. However, after we improved the financial situation, the Plaintiff's claims for the debts incurred were repaid by the defendant in full, as evidenced by bank transfer receipts dated 04/11/2022 in the amount of 84,878 tenge.
In addition, in the Claim, the Plaintiff additionally indicates that "Also in accordance with the Loan Agreement No. 956991002 dated 06/14/2019, concluded between Capvia Scoring LLP, kokekz and the Defendant, under the terms of which the defendant was provided with a service in the amount of 13,635 tenge.
Capvia LLP - Scoring, kokekz 07/28/2020, has ceded the rights of claim under this Agreement.
At the moment, the copyright holder of the Contract on the basis of the Contract of Assignment of the Right of Claim is Rishat Ravilevich Kaipov.
At the time of assignment of the Claim, the Defendant's debt amounted to 26,155 tenge, of which:
The main debt is 13,635 tenge;
The amount of remuneration is 0 tenge;
Overdue remuneration - 0 tenge;
Penalty (penalty fee) – 12520 tenge;
The fine is 0 tenge.
To date, the debt under contract No. 956991002 dated 06/14/2019, concluded between Capvia LLP (Kapvia) - Scoring, kokekz and the Defendant, amounts to 59940 tenge, as well as the debt under contract No. 956991002 dated 06/14/2019, concluded between Capvia LLP (Kapvia) - Scoring, kokekz and the Defendant, amounts to in the amount of 26,155 tenge.
We do not agree with the above arguments of the Plaintiff, since under the same agreement, in addition to the amount received, an additional amount is allegedly provided to the Defendant in the amount of 13,635 tenge, in accordance with the Loan Agreement No. 956991002 dated 06/14/2019, we did not accept obligations to pay for the terms of additional services, in addition, we were not provided documents on the provision of these services, which naturally contradicts Contractual obligations and the Law.
Also, the Court should pay special attention to the fact that the Plaintiff also additionally, under the same agreement No. 956991002 dated 06/14/2019, concluded between Capvia Scoring LLP, kokekz and the Defendant, formed a debt amounting to 26 155 tenge. Principal debt – 13,635 tenge; Penalty (penalty fee) – 12520 tenge;
We believe that the Plaintiff deliberately delayed going to COURT in order to plunge the Borrower into larger debts.
Thus, the Plaintiff refers to art. 272 of the Civil Code of the Republic of Kazakhstan, the obligation must be fulfilled 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 obligations in full and to the terms of the contract, which raises doubts about conscientious fulfillment of obligations. In confirmation of the words in case of violation by the borrower of 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, the plaintiff should have gone to court in 2020, and not as in 2024, based on the above, we observe the creditor's guilt.
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 5. The application of civil legislation by analogy is stated In cases where the relations provided for in paragraphs 1 and 2 of Article 1 of this Code are not directly regulated by legislation or agreement of the parties and there are no customs applicable to them, the norms of civil legislation governing similar relations apply to such relations, since this does not contradict their essence (analogy of the law).
If it is impossible to use the analogy of law in these cases, the rights and obligations of the parties are determined based on the general principles and meaning of civil legislation and the requirements of good faith, reasonableness and fairness (analogy of law). Thus, Article 36 of the Law of the Republic of Kazakhstan "On Banks and Banking Activities in the Republic of Kazakhstan" and on Microfinance Organizations must be taken into account when a delay occurs in fulfilling an obligation under a bank loan agreement. The borrower must 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 the consequences of the borrower's failure to fulfill its obligations.
Regarding the accrued penalties, they disagree because this amount of penalty is excessively large compared to the creditor's losses whereas according to art. 35 of the Law on Banks and Banking Activity states that "The amount of the penalty (fine, penalty fee) for violating the obligation to repay the loan amount and (or) pay remuneration under a bank loan agreement concluded with an individual may not exceed 0.5 percent of the overdue payment amount for each day of delay, after ninety days of delay. ninety days of delay may not exceed 0.03 percent of the overdue payment amount for each day of delay, but not more than ten percent of the loan amount for each year of the bank loan agreement."
Also, in the demand for early fulfillment of obligations, we do not agree with the above unreasonable amounts. In addition, after 40 days, the plaintiff already had the right to apply to the court with a claim for recovery of the debt. We believe that the Plaintiff intentionally delayed the deadline for filing a lawsuit, thereby artificially overestimating the amount of the penalty due.
According to art. 297 of the Civil Code of the Republic of Kazakhstan, if the penalty payable is excessively large compared to the creditor's losses, the court has the right to reduce the penalty, taking into account the degree of fulfillment of obligations by the debtor and the debtor's interests that deserve attention, the court reduces the debtor's liability if the creditor intentionally or negligently contributed to an increase in the amount of losses caused by non-performance or improper performance, or did not take reasonable measures to reduce them.
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."
According to Clause 3, Article 725-1 of the Civil Code of the Republic of Kazakhstan, which stipulates that the rules for calculating the annual effective interest rate under a loan agreement are determined by a regulatory legal act of the authorized body for regulation, control and supervision of the financial market and financial organizations.
Paragraph 5) the annual effective interest rate under the loan agreement may not exceed one hundred percent, including in the event of a change in the repayment period of the loan;
According to paragraphs 6, 7 of Resolution No. 197 of the Board of the National Bank of the Republic of Kazakhstan dated August 27, 2018 "On Approval of the Rules for Calculating the Annual Effective Interest Rate under the Loan Agreement", it is stipulated that the calculation of the annual effective interest rate under the loan agreement includes all payments of the borrower on the principal debt and remuneration, as well as commissions and other payments for the entire term of the loan agreement.
The calculation of the annual effective interest rate under the loan agreement does not include a penalty (fine, penalty fee) for violating the obligation to repay the loan amount and (or) pay remuneration under the loan agreement.
According to paragraph 2, art. 725-1 of the Civil Code of the Republic of Kazakhstan, where a loan agreement concluded with an individual borrower that does not comply with the requirements of paragraphs 1 and 5 of this Article is void.
Taking into account the date of assignment of the claim dated 07/28/2020 and the date of filing the Claim in court, more than 3 years have passed and we believe the Plaintiff missed the general statute of limitations The limitation period is the period of time during which a claim may be satisfied that has arisen from violations of a person's right or a legally protected interest, and the limitation periods and the procedure for calculating them are provided for by law and cannot be changed by agreement of the parties in accordance with art. 177 of the Civil Code of the Republic of Kazakhstan.
Provided for in Article 178 of the Civil Code of the Republic of Kazakhstan, paragraph 1. The specified General limitation period is set at three years.
179. The claim for the protection of a violated right is accepted for consideration by the court regardless of the expiration of the limitation period, and the limitation period is applied by the court only upon the application of the party to the dispute made before the court's decision. The expiration of the limitation period before the filing of a claim is the basis for the court's decision to dismiss the claim.
The Universal Declaration of Human Rights (articles 7, 8 and 10), the International Covenant on Civil and Political Rights (article 14) and the Convention for the Protection of Human Rights and Fundamental Freedoms (article 6) establish that everyone is equal before the law and the courts and that everyone has the right to a fair trial in determining their civil rights and duties. and the public hearing of the case within a reasonable time by a competent, independent and impartial court established by law.
Based on the above, we believe that the amount of the Defendant's debt has been fully repaid and, accordingly, must be carried out in accordance with the principles of good faith, reasonableness and fairness, therefore, it is necessary to take into account all the above circumstances.
Based on the above, I ask the Court to take into account the difficult financial situation of the defendant and the unreasonable inaction of the Plaintiff for a long time, which led to an excessive increase in the penalty, and to make a decision in accordance with the principles of good faith, reasonableness and fairness.
I ASK THE COURT:
· In connection with the fulfillment of its obligations under the loan agreement, the Plaintiff's Claim against the Defendant must be refused.
· Apply the limitation period for debt collection under the loan agreement
Sincerely, A.B.A.
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