NORMATIVE RESOLUTION OF THE SUPREME COURT OF THE REPUBLIC OF KAZAKHSTAN

of November 25, 2016 No. 7

About court practice of consideration of civil cases on the disputes following from agreements of bank loan

Proceeding from practice of application by courts of the legislation on the disputes following from agreements of bank loan and for the purpose of uniform application of regulations of the legislation for this category, the plenary session of the Supreme Court of the Republic of Kazakhstan

decides:

1. The civil legislation governing the relations following from agreements of bank loan is based on the Constitution of the Republic of Kazakhstan (further – the Constitution) and consists of the Civil code of the Republic of Kazakhstan (further – group of companies), the Code of civil procedure of the Republic of Kazakhstan (further – GPK), the laws of the Republic of Kazakhstan of March 30, 1995 No. 2155 "About National Bank of the Republic of Kazakhstan" (further – the Law on National Bank), of December 23, 1995 No. 2723 "About mortgage of real estate" (further – the Law on mortgage), of August 31, 1995 No. 2444 "About banks and banking activity in the Republic of Kazakhstan" (further – the Law on banks), of April 25, 2001 No. 178-II "About Development bank of Kazakhstan" (further – the Law on Development bank), of April 2, 2010 No. 261-IV "About enforcement proceeding and the status of legal executives" (further – the Law on enforcement proceeding), of May 16, 2014 No. 202-V "About permissions and notifications", of July 26, 2016 No. 11-VI "About payments and payment systems" (further – the Law on payments), of January 14, 2013 No. 67-V "About the State educational accumulative system" (further – the Law on educational accumulative system), resolutions of Board of National Bank of the Republic of Kazakhstan of December 23, 2019 No. 248 "About approval of Rules of the conclusion of the agreement of bank loan, including requirements to content, registration, compulsory provisions of the agreement of bank loan, forms of the repayment schedule of loan and the instruction sheet for the borrower - physical person and other regulatory legal acts.

2. By consideration of the disputes following from agreements of bank loan, courts shall be guided by the legislation existing at the time of emergence of these legal relationship.

Resolving the disputes following from agreements of bank loan, courts should research carefully terms of the contract of bank loan which shall correspond to the obligatory rules for the parties established by the legislation (peremptory rules) existing at the time of its conclusion.

It is necessary to consider that if after the conclusion of the agreement of bank loan the legislation establishes obligatory other rules for the parties, than those which were effective in case of the conclusion of the agreement, conditions of the signed agreement remain in force if by again accepted legislation it is not determined that it extends also to the relations which arose from earlier signed agreements (Article 383 of group of companies).

The regulatory legal act providing changes and amendments in procedure for regulation of the relations following from agreements of bank loan is applied to the legal relationship which arose after its introduction in action, except as specified, when the retroactive effect of regulatory legal act or its part is provided by him or the act of enforcement of regulatory legal act.

3. Considering cases of this category, courts should recognize that according to Item 1 of Article 727 of group of companies under the agreement of bank loan the creditor on the terms of the paid nature, urgency, recoverability shall transfer as a loan money to the borrower.

Entering contractual relations on bank loan, the borrower shall for use of borrowed money pay to the creditor the remuneration determined in the agreement by the established interest rate from loan amount (paid nature), in time (urgency) and to return borrowed funds (recoverability).

The condition about the paid nature cannot be provided under the agreement of bank loan in which the Islamic bank (Item 1-1 of Article 727 of group of companies) acts as the creditor.

Loan subject in the form of money and condition of the paid nature, urgency, recoverability kind of the loan agreement, stipulated in Article 715 groups of companies allow to consider the agreement of bank loan as, and distinguish it from other agreements.

Because obligations on bank loan arise from the agreement, courts should find out competences of the creditor (creditor) to the conclusion of the agreement, and also to consider the features and requirements established for agreements of bank loan and subjects, them concluding (Item 2 of Article 727, Article 728 of group of companies).

4. According to the subitem 8) Item 2 of article 30 of the Law on banks provision of bank loan belongs to banking activities. This circumstance means that the creditor in case of the conclusion of the agreement of bank loan shall have the license of National Bank of the Republic of Kazakhstan for carrying out banking loan activities. (Exceptions are stipulated in Item 2 articles 6 of the Law on banks, the subitem 29) of article 8 of the Law on National Bank, article 7 of the Law on Development bank and other legal acts of the Republic of Kazakhstan).

5. Courts should mean that the agreement of bank loan shall contain conditions about the subject of the agreement, conditions which are acknowledged essential as the legislation or are necessary for agreements of this type, and also concerning what according to the statement of the parties the agreement is reached.

It is necessary to consider that the Law of the Republic of Kazakhstan of July 3, 2019 No. 262-VI to Item 2 of article 34 of the Law on banks makes changes (it is enacted since January 1, 2020), according to which the procedure for the conclusion of the agreement of bank loan, including the requirement to content, registration, compulsory provisions of the agreement of bank loan, form of the repayment schedule of loan and the instruction sheet for the borrower – physical person, affirms regulatory legal act of authorized body taking into account the requirements established by the civil legislation.

Courts (judge) should take measures to conciliation of the parties, to assist them in dispute settlement at all stages of process, sending the parties the invitation for participation in the conciliatory procedure, with the notice on receipt of the claim to court, explanation of the right to resolve dispute (conflict) within the conciliatory procedure (the voluntary settlement, mediation, the participative procedure) or by the address to the banking ombudsman, conciliation benefits, and also about the right to mutually open and produce the evidence according to parts one and the second Article 73 GPK.

6. In case of research and assessment of the agreement of bank loan it is necessary to establish to whom and on what purposes in what currency the bank loan is issued as issues of indexation of payments under the agreement, on ensuring execution by the borrower of agreement obligations are resolved.

In case of determination in what currency loan is issued, it is necessary to consider that the Law of the Republic of Kazakhstan of July 2, 2018 No. 168-VI "About modification and amendments in some legal acts of the Republic of Kazakhstan concerning currency control and currency exchange control, risk - the oriented supervision of activities of the financial organizations, consumer protection of financial services and enhancement of activities of National Bank of the Republic of Kazakhstan" the Law on banks is added with Article 34-1, Item 2 of which provision of the mortgage loans which are not connected with business activity in foreign currency is forbidden to the physical persons which do not have the income in this currency within six consecutive months preceding date of the appeal of physical person.

Courts should mean that indexation of the obligation and payments under the contract of the bank loan issued in tenge with binding to currency equivalent is not allowed. This restriction does not extend to the agreements signed between banks (item 4 of article 34 of the Law on banks).

Provision of bank loans is forbidden by the law on banks to persons registered in offshore zones which list is established by authorized body (Item 5 of article 34 of the Law on banks).

Violation by agreement parties of bank loan of the specified prohibitions can entail invalidity (negligibility) of this transaction based on Item 1 of Article 158 of group of companies and approach of the corresponding effects.

7. By consideration of the requirement about debt collection for the agreement of bank loan it is necessary to establish:

in what non-execution or improper execution of agreement obligations and the reason of these violations is expressed;

what there was debt (principal debt, remuneration, penalty, penalty, penalty fee) shown to collection of;

as far as requirements about debt collection correspond to terms of the contract of bank loan;

whether obligation fulfillment is provided with pledge;

whether there are bases for the early obligation fulfillment including provided with pledge and addresses of collection on pledged property (Articles 321, of 721, of 722 groups of companies);

whether were accepted by the creditor and the borrower of measure to debt repayment in what they were expressed;

whether there are circumstances allowing to reduce the share of responsibility of the debtor and other circumstances necessary for the correct and objective permission of case.

8. On the disputes following from agreements of bank loan, courts shall check carefully their legality and justification, to research correctness of calculations of debt on principal debt, on remuneration and penalty.

In case of need the court can involve the specialists having special knowledge as at stage of preparation of case for legal proceedings, and during judicial session (Article 77 GPK).

Courts should consider that the Law of the Republic of Kazakhstan of November 24, 2015 No. 422-V "About modification and amendments in some legal acts of the Republic of Kazakhstan concerning the idle credits and assets of banks of the second level, rendering financial services and activities of the financial organizations and National Bank of the Republic of Kazakhstan" (further – the Law concerning the idle credits), article 34 of the Law on banks is added with Item 7-1 (is enacted since July 1, 2016) establishing priority of debt repayment of the borrower under the agreement of bank loan in the presence of certain conditions (extends to the legal relationship which arose from the date of its introduction in action from earlier signed agreements).

If the amount of the payment made by the borrower is sufficient for obligation fulfillment of the borrower, then this amount repays the debt of the borrower in the priority specified in the agreement of bank loan.

9. Courts in case of research of arguments of the parties should consider provisions of the Rules about domestic credit policy approved by governing body of bank, the mortgage organization or the organization performing crediting of subjects of agro-industrial complex which hundred percent of voting shares directly or indirectly belong to national managing holding (Items 8, of 9, of 10, of the 11th article 34 of the Law on banks).

Rules about domestic credit policy determine conditions of provision of bank loans, including necessary for issue of bank loan, criteria of solvency of the borrower, category of persons which can be granted bank loans, the amount, terms, requirements for providing, maintenance by the creditor of the issued loans, their monitoring.

10. For the purpose of the correct determination of circle of the circumstances important for case, courts shall research documents of the credit folder which by the general rule opens in day of agreement signature about loan granting and is closed only at the time of the termination of its action.

Courts shall establish according to documents of the credit folder whether comprehensive, complete and quality standard of creditworthness (solvency) of the borrower was carried out by the creditor. In particular, availability at the borrower of the permanent and sufficient income and other sources for repayment of loan, the tax debts and to other obligatory payments in the budget, before the third parties.

In case of establishment by court that assessment of creditworthness of the borrower is not carried out by the creditor or is carried out in an inadequate way that influenced non-execution and (or) improper execution by the borrower of agreement obligations of bank loan, the court can reduce share of responsibility of the debtor (the amount shown to penalty, penalty, penalty fee (Item 1 of Article 364 of group of companies).

11. The share of responsibility of the debtor can be also reduced if the creditor intentionally or on imprudence promoted increase in the size of the losses caused by non-execution or improper execution or did not take reasonable measures to their reduction. For example, the creditor out of time took a legal action with the action of debt, about the address of collection on pledged property, by artificial tightening of submission due date of the claim that led to increase in the amount of penalty (penalty, penalty fee), to increase in the amount of total debt of the borrower that gave to the creditor the grounds for presentation of the claim in court for the address of collection on mortgage property.

The fault of the creditor can be also shown in rejection of the measures for non-admission or restriction of amount of its losses depending on it if the debtor took measures for pre-judicial dispute settlement by the written address to the creditor with disclosure of data on origins of debt, other objectively confirmed circumstances (facts) which cause formation of its debt, including with the petition for change of terms of the contract.

12. Not any non-execution or improper execution of the obligation from the borrower grants to the creditor authority to collect debt under the agreement of bank loan and the address of collection on pledged property.

By the general rule responsibility of the debtor for non-execution and (or) improper execution of the obligation comes with fault provided that other is not stipulated by the legislation or the agreement. The debtor is found not guilty if he proves that he took all measures depending on it for proper execution of the obligation.

Other rules are established for the person which is performing business activity and did not fulfill or inadequate image of the fulfilled obligation. Such person bears property responsibility if it does not prove that proper execution was impossible owing to force majeure, that is circumstances extraordinary and impreventable under existing conditions (the spontaneous phenomena, military operations and so forth). The law does not refer to such circumstances, in particular, absence in the market of the necessary goods, works or services for execution.

Other bases of responsibility or release from it (Article 359 of group of companies) can be provided by the legislation or the agreement.

Courts need to find out the specified circumstances and to give proper legal treatment to the debtor's arguments confirmed with proofs about the objective reasons interfering obligation fulfillment (for example, violation by the borrower of conditions on loan repayment is caused by the fact that it was in hospital in connection with the child's birth about what there are medical documents and so forth).

13. The borrower shall return subject of loan and pay remuneration for its use according to the procedure and the terms provided by the agreement (Items 1 of Articles 715, of 718, of 722, of 727 groups of companies).

Violation of these obligations is the basis for collection from the borrower of the formed debt, but taking into account features, stipulated in Article 728 groups of companies (Item 2 of Article 727 of group of companies).

From the borrower in case of violation of terms by it on return of the next part of subject of loan specified in the agreement (if the agreement provides return of subject of loan in parts (by installments), on remuneration payment (if the agreement provides payment of remuneration for loan in the terms advancing terms of return of the subject of loan), it is necessary for early debt collection that violation of term of return lasted more than forty calendar days (Items 3 and 4 of Article 722, Item 7 of Article 728 of group of companies).

14. Cases in case of which the creditor has right to demand from the borrower of early return of subject of loan, are provided in Article 321, Item 3 of Article 720, Item 2 of Article 721, Items 3, 4 Articles 722 of group of companies.

Emergence of the right at the creditor not only on the requirement of early return of subject of loan, but also right to the address of collection regarding pledge if its requirement is not met, are fixed in Item 2 of Article 321 of group of companies.

In case of application of Item 2 of Article 321 of group of companies courts should recognize that this Item the law of the Republic of Kazakhstan of July 17, 2015 No. 333-V "About modification and amendments in some legal acts of the Republic of Kazakhstan concerning strengthening of protection of the property right, guaranteeing protection of contractual commitments and toughening of responsibility for their violation" was added with the subitem 4).

From which follows that in case of violation by the pledger (borrower) of the obligation provided with pledge (Articles 317, 720 and 722 Civil Code, article 20 of the Law on mortgage), the pawnbroker (creditor) has the right to demand early execution of the obligation provided with pledge and if its requirement is not met, to turn collection regarding pledge.

15. According to the Law of the Republic of Kazakhstan of May 24, 2021 No. 43-VII article 36 of the Law on banks is reworded as follows (it is enacted since October 1, 2021), in the presence of delay of obligation fulfillment under the agreement of bank loan, but no later than twenty calendar days from the date of its approach the bank (the organization performing separate types of banking activities) shall (shall) notify the borrower by method and in the terms provided in the agreement of bank loan on emergence of delay on obligation fulfillment under the agreement of bank loan and need of introduction of payments under the agreement of bank loan with indication of the overdue debt size for the date specified in the notification; the borrower's right – physical person under the agreement of bank loan to address to bank (the organization performing separate types of banking activities); effects of failure to carry out by the borrower of the agreement obligations of bank loan. The bank (the organization performing separate types of banking activities) has the right to attract the collection agency to the notification of the borrower.

In cases of dissatisfaction of the requirements following from the notification and also not realization by the borrower – physical person of the rights, stipulated in Item 1-1 article 36 of the Law on banks, or absence between the parties of consent on change of terms of the contract of bank loan the bank (the organization performing separate types of banking activities) has the right to consider question of application concerning the borrower of the measures provided by Items 2, of 2-1 article 36 of the Law on banks.

By consideration of this category of cases courts need to establish legitimacy of the requirement of the creditor to the borrower about early loan repayment, and also to find out observance of the procedure of the direction about it notifications to the borrower.

If the court (judge) determines that the notification did not go to the borrower or is directed with violation of regulations of article 36 of the Law on banks, or in case of the address with the statement of the borrower – physical person in bank (the organization performing separate types of banking activities) by the claimant the requirements, stipulated in Item 1-2 these Articles directed to obligatory pre-judicial dispute settlement with the borrower are not fulfilled, then in the presence of the specified circumstances the court (judge) returns the claim as the claimant does not observe the procedure for pre-judicial dispute settlement established by the law for this category of cases or provided by the agreement of the parties and the possibility of application of this procedure is not lost (the subitem 1) of Article part one 152 GPK).

If the claim was accepted in production of court, then it is left without consideration (Article part one 168, the subitem 1) of Article 279 GPK).

If the creditor has the judgment which took legal effect on this legal relationship, then legal relationship of the parties continue not from the agreement of bank loan any more, and from court resolution.

According to Article part one 239 GPK court according to the statement of the claimant can make the corresponding indexation of the sums of money collected by a court decision proceeding from base rate of National Bank of the Republic of Kazakhstan on the date of judgment execution.

Explain to courts that regulations of article 36 of the Law on banks do not extend to requirements of bank (the organization performing separate types of banking activities) to heirs about collection of loan debt within the cost of the property of the borrower which passed to them.

16. Obligation fulfillment under the agreement of bank loan can be provided with penalty, pledge, guarantee, the guarantee and other methods, stipulated by the legislation or the agreement (Item 1 of Article 292 of Civil Code, article 35 of the Law on banks).

In case of application of article 35 of the Law on banks courts should consider that changes and additions were repeatedly made to this regulation. According to the Law of the Republic of Kazakhstan of February 10, 2011 No. 406-IV "About modification and amendments in some legal acts of the Republic of Kazakhstan concerning mortgage lending and consumer protection of financial services and investors" (further – the Law concerning mortgage lending), the above-stated Article is reworded as follows, and restrictions on charge and penalty (penalty, penalty fee) under the agreement of bank loan are provided in Item 2 of this Article, (including under the agreement of mortgage loan) the penalty size (penalty, penalty fee) for violation of the obligation on return of loan amount and (or) payment of remuneration cannot exceed percent 0,5 from the amount of overdue payment for each day of delay, but no more than ten percent from the amount of the issued loan for every year of validity of bank loan (Item 2 of article 35 of the Law on banks) concluded with physical person.

At the same time action of this provision of the law extends to the relations which arose from earlier signed agreements of bank loan. The penalty (penalty, the penalty fee) under the agreement of the bank loan concluded with physical persons paid before enforcement of the Law concerning mortgage lending or penalty (penalty, the penalty fee) which is subject to payment according to the court resolution which took legal effect are not subject to recalculation.

According to the Law concerning the idle credits Item 2 of article 35 of the Law on banks is reworded as follows. Owing to this regulation under the agreement of bank loan signed with physical person, the penalty size (penalty, penalty fee) for violation of the obligation on return of loan amount and (or) payment of remuneration cannot exceed within ninety days of delay of 0,5 of percent from the amount of overdue payment for each day of delay, after ninety days of delay cannot exceed percent 0,03 from the amount of overdue payment for each day of delay, but no more than ten percent from the amount of the issued loan for every year of validity of bank loan.

The called provision of the law is enacted since July 1, 2016 and extends to the legal relationship which arose from earlier signed agreements. The penalty (penalty, the penalty fee) under the agreement of the bank loan concluded with physical person paid before enforcement of the called Law concerning the idle credits or penalty (penalty, the penalty fee) which is subject to payment according to the court resolution which took legal effect are not subject to recalculation.

17. By hearing of cases about debt collection under the agreement of bank loan it is necessary to research the reasons, entailed violation of obligations by the debtor, availability or lack of the bases of responsibility for violation of the obligation, stipulated in Article 359 groups of companies (in particular, availability of fault of the debtor, force majeure and so forth), fault of the creditor (Article 364 of group of companies) and important for case other circumstances.

If it is determined that the penalty which is subject to payment (penalty, penalty fee) is excessively big in comparison with losses of the creditor, the court upon the demand of the debtor has the right to reduce penalty (penalty, penalty fee), considering extent of accomplishment of the obligation by the debtor and interests of the debtor and creditor (Article 297 of group of companies) deserving attention.

Taking into account provisions of Article 297 of group of companies the court (judge) needs to explain to the defendant (debtor) the right to submission of the petition for decrease in penalty if she is excessively great in comparison with losses of the creditor. In the judgment conclusions about reduction of penalty shall be motivated.

18. In case of establishment of responsibility of the parties courts should take into account that the Law on banks provides not only the measures applied concerning the insolvent borrower, but also measure for its protection depending on the purposes of provision of bank loan.

According to Item 6-1 of article 34 of the Law on banks the bank (the organization performing separate types of banking activities) is forbidden to require payment of remuneration, penalty (penalties, penalty fee), and also the commission and other payments connected with issue and servicing of loan, added after ninety consecutive calendar days of delay of obligation fulfillment on repayment of any of payments on the amounts of principal debt and (or) remuneration, except as specified, when for date of the conclusion of the agreement of bank loan the amount of principal debt was completely provided with pledge of the property which is subject to registration and (or) pledge of money.

19. By consideration of disputes on debt collection and the address of collection on the mortgage (pledged) property, it is necessary to consider that according to Article 299 of group of companies the creditor (pawnbroker) has the right in case of non-execution by the debtor of the obligations provided with pledge to become widespread from the cost of pledged property mainly before other creditors.

This right of the creditor (pawnbroker) does not deprive of it opportunity to become widespread the requirements at the expense of other property of the debtor who is not in pledge. In this case the creditor loses the right of preferential receipt of satisfaction of the requirements before other creditors.

According to Item 2 of Article 299 of group of companies in case of stay in pledge of the companies, buildings, constructions, apartments, the rights to the parcels of land and other real estate (mortgage) this legal relationship is regulated by the Law on mortgage. The general rules about pledge containing in group of companies are applied to mortgage in case of not establishment by the Law on mortgage of other rules.

According to article 20 of the Law on mortgage, in case of non-execution by the debtor of primary obligation, the pawnbroker has the right to meet the requirements in the way:

realization of mortgage judicially;

realization of mortgage extrajudicially if it is provided by legal acts or in the mortgage agreement, or in the subsequent agreement of the parties;

addresses to the property of pledged property in case of the announcement of the biddings cancelled (article 32 of the Law on mortgage).

Extrajudicial realization of mortgage property is the right of the creditor pawnbroker and does not exclude sales opportunity of this property the judgment.

It must be kept in mind that extrajudicial realization of property is not obligatory procedure for the pre-judicial dispute resolution. Therefore non-use by the pawnbroker of extrajudicial procedure for realization of pledged property is not the basis for leaving of the claim by court without consideration on the basis provided in the subitem 1) of Article 279 GPK.

20. According to Item 1 of Article 305 of group of companies both the debtor, and the third party can be the pledger.

Providing as a deposit the property in ensuring obligation fulfillment of the borrower before the creditor, the pledger - the third party (the real guarantor) (further - the real guarantor) does not become the party on secured liability, that is he does not acquire the right and obligation of either the creditor (creditor), or the borrower (debtor). Therefore at the real guarantor does not come before the creditor together with the borrower neither equity, nor solidary, nor the subsidiary obligation as it is stipulated in Item 2 Articles 269 of group of companies, therefore, and the corresponding responsibility.

The real guarantor and under the risk provides with the property under the responsibility obligation fulfillment of the debtor before the creditor (Articles 292, of 299 groups of companies), that is within the prisoner between it, the creditor and the debtor of the agreement of pledge acquires the rights and obligations of the pledger.

At the same time according to Item 7 of Article 319 of group of companies the real guarantor has the right at any time before sale of subject of pledge took place to stop the address on it of collection and its realization, having fulfilled the obligation provided with pledge or that its part which execution is delayed. The agreement limiting it is right, insignificant. In this case the pledger, on the basis of the voluntary declaration of will having repaid the debt which is available on loan, assumes the debtor's rights. In sense of this regulation the legislator grants to the real guarantor option for the purpose of preserving the property provided as a deposit.

21. Under the agreement of pledge the creditor has right in case of non-execution by the debtor (borrower) of the obligation provided with pledge to become widespread from the cost of the property pledged by the real guarantor mainly before other creditors of person who belongs this property (pledger), behind the withdrawals established by group of companies.

Unlike the guarantor who together with the debtor bears joint liability to the creditor and the guarantor who bears subsidiary responsibility (Article 332 of group of companies) before the creditor, the real guarantor does not bear responsibility to the creditor of the types stated above. If in case of execution of obligations to the creditor of the debtor pass by them the creditor's rights according to this obligation (Article 334 of group of companies) to the guarantor and the guarantor, then at the real guarantor transition of these rights the current legislation is not provided.

Therefore the real guarantor, whose property it is realized by the creditor, according to the procedure, stipulated by the legislation, does not acquire the right to claim at the debtor of compensation to it the cost of the exercised mortgage property if this right is not provided by pledge agreement parties in the agreement or such right is not provided by legal acts. Stipulated in Item 3 Articles 344 of group of companies of the basis are applied only in the presence of the conditions specified in Item 7 of Article 319 of group of companies according to which the real guarantor has the right at any time before sale of subject of pledge took place to stop the address on it of collection and its realization, having fulfilled the obligation provided with pledge or that its part which execution is delayed.

If return of debt on the basic agreement became impossible as a result of illegal actions of the debtor, then the real guarantor, whose property is realized on account of debt repayment, has the right to demand compensation of damage from the debtor.

22. Explain to courts that resolving requirements about debt collection for the agreement of bank loan, the court can refuse satisfaction of the requirement about the address of collection of pledged property if the violation of the obligation provided with pledge allowed by the debtor is insignificant also the size of requirements of the pawnbroker thereof is obviously disproportionate costs of pledged property (Items 2 of Article 317 of group of companies, article 21 of the Law on mortgage).

Violation of the obligation provided with pledge is insignificant and the size of requirements of the pawnbroker obviously disproportionate costs of pledged property in case of set of the following conditions:

the amount of the unexecuted obligation (without penalty (penalty, penalty fee) constitutes less than ten percent from the cost of pledged property determined by the parties in the pledge agreement;

the period of delay of the obligation fulfillment provided with pledge constitutes less than three months.

On the mortgage loans which are not connected with business activity and the secure dwelling of physical person other requirements in the presence of which the address of collection on pledged property is not allowed are established.

In this case violation of the obligation provided with pledge is insignificant and the size of requirements of the pawnbroker obviously disproportionate costs of pledged property in case of set of the following conditions:

the amount of the unexecuted obligation (without penalty (penalty, penalty fee) constitutes less than fifteen percent from the cost of pledged property determined by the parties in the pledge agreement;

the period of delay of the obligation fulfillment provided with pledge constitutes less than six months (Item 2 of Article 317 of group of companies).

23. Courts need to pay attention that if the loan is granted by bank, then one of the measures applied concerning the borrower violating terms of the contract the address of collection in indisputable procedure (without acceptance) on money, including by presentation of payment request is, available on any bank accounts of the borrower (if such collection is stipulated in the agreement of bank loan), taking into account exceptions, stipulated in Item the 10th article 27 of the Law on payments.

This corrective action on the borrower is applied in the presence of in total following conditions:

approach of delay of obligation fulfillment under the agreement of bank loan;

the notification bank of the borrower by method and in the terms provided in the agreement of bank loan on emergence of delay on obligation fulfillment under the agreement of bank loan and need of introduction of payments with indication of the overdue debt size for the date specified in the notification, the borrower's right – physical person under the agreement of bank loan to address to bank (the organization performing separate types of banking activities) and about effects of failure to carry out by the borrower of the obligations;

dissatisfaction of the requirements following from the specified notification (article 36 of the Law on banks).

24. In case of the address in the procedure for collection established by the law on the money (including by presentation of payment request) which is on any bank accounts of the debtor it is necessary to observe article 28 of the Constitution according to which to the citizen of the Republic of Kazakhstan the minimum size of the salary and pension, social security on age, in case of disease is guaranteed, to disability, losses of the supporter and on other legal causes, and Article 115 of the Labor code of the Republic of Kazakhstan from which follows that the general monthly size of payroll deductions of the worker or pension cannot exceed fifty percent (article 95 of the Law on enforcement proceeding).

25. Applying restrictions on the address of collection on money, it must be kept in mind that the Laws of the Republic of Kazakhstan of January 21, 2019 No. 217-VI and of May 24, 2021 No. 43-VII to Item 2 of article 36 of the Law on banks make changes (it is enacted since October 1, 2021).

According to the specified regulation debt collection of the borrower – physical person under the agreement of bank loan by presentation of payment request is limited within fifty percent from the amount of money which is on its bank account and (or) from each amount of money arriving in subsequent on the bank account of the borrower and performed irrespective of revenues to the bank account of all amount necessary for complete execution of payment request. At the same time the amount of money kept on the current account of physical person shall be at least the size of the subsistence minimum established for the corresponding financial year by the law on the republican budget. The specified restriction does not extend to the money which is on the savings account of the borrower – physical person.

26. One of the bases of discharge is the death of the citizen (Item 1 of Article 367 of group of companies).

The death of the borrower stops its agreement obligations of loan if execution can be made only with personal participation of the debtor based on Article 376 of group of companies.

The question of preserving obligations to Bank of the testator shall be resolved when forming by the notary of structure of inheritance (Article 1040 of group of companies).

The heirs who accepted inheritance according to requirements of Article 1081 of group of companies answer for obligations the testator as solidary debtors within property value, passed to each heir.

The death of the borrower does not stop agreement obligation of bank loan of the guarantor, the guarantor, the pledger which responsibility is provided by regulations of Item 2 of Article 269, of Articles 287, of 288, of 299, of 329, of 330 groups of companies.

27. According to article 4 of the Constitution this normative resolution is included the law in force, is obligatory and becomes effective from the date of the first official publication.

Chairman of the Supreme Court of the Republic of Kazakhstan

K. Mami

Judge of the Supreme Court of the Republic of Kazakhstan, secretary of plenary meeting

K. Shaukharov

 

 

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