And again the shareholders
Another sure victory in the piggy bank of our affairs. This time we are faced with a very specific basis of the dispute — unjustified enrichment.
Pensioner Altynkul Dauletbaeva (our regular client) in September 2015 made an initial contribution to the Consumer Cooperative ‘Common House’ under the share contribution agreement. However, ‘According to the scenario’, the Consumer Cooperative does not fulfill its obligations under the contract and, it would seem, history repeats itself, as in many thousands of similar cases on shared-equity construction, etc.
Senior lawyer of KAZGUU Law Clinic Nurpolat Elipayev prepared a statement of claim and provided consulting support for the dispute until the decision was made.
As a result, the claims were satisfied in full. It remains to wait for the entry of the court’s decision into legal force!
Congratulations to Altynkul Serdanovna on another Victory with the help of our guys!
Be vigilant when entering into a contractual relationship.
If you have any doubts, please call: 8 (7172) 70 30 46 and get professional advice from our specialists.
Since September 2018 KAZGUU Law Clinic has reached a new level in matters of legal protection of the interests of socially vulnerable categories of the population!
If earlier legal assistance was implemented by us through the preparation of texts of legal documents and participation in the reconciliation of the parties, now in exceptional cases we implement full representation in court.
Today, the main court session on the case of our principal was held in the Saryarka District Court of Astana.
Moreover, in addition to the interns of Law clinic, my assistants in the case were 4th-year students who consolidate their skills within the framework of the Moot Court discipline.
This is the real practice-oriented education. As a result – full satisfaction of the stated requirements, including termination of the lease agreement, eviction, the amount of the debt in full and a legal penalty, refusal to the defendant in terms of setting off the amounts for repairs (in respect of which we proved that it was a routine repair, and not capital repair), for the purchased equipment and other expenses. We have refuted all the materials presented by the Defendant as evidence of the expenses incurred and the obligations allegedly not fulfilled by the Plaintiff. They proved the groundlessness of the petitions on the part of the Defendant for making private determinations, refuted the illegality of the attempt to enter the housing by the material representatives of the Plaintiff.
Not difficult at first glance, the case had many pitfalls, which we gradually overcame!
We are waiting for the court’s decision to enter into force!
KAZGUU Law Clinic team has successfully completed the first trial project!
We remind you that M. Narikbayev KAZGUU University Law Clinic provides legal advice and legal assistance to socially vulnerable categories of the population on an absolutely free basis.
Reinstatement at work
In early November, we were contacted by A. S. Dauletbayeva, who reported that she was illegally dismissed and the reason for the dismissal was the personal hostility of the head of the organization in which she worked.
At the same time, the Order on termination of the employment contract specified as the basis of subclause 8, clause 1, Article 52 of the Labor Code of the Republic of Kazakhstan — the absence of an employee at work without a valid reason for three or more consecutive hours in one working day (working shift). However, according to Altynkul, throughout the entire period of her employment in this organization, she not only did not allow absenteeism, but was also periodically involved in overtime work and work on weekends and holidays. To resolve this dispute, a conciliation commission was established, which rejected Altynkul’s claims.
To study the circumstances of the case and provide legal assistance to the client, a mobile group was created consisting of 3rd-year students Aigerim Abiltusupova, Makpal Urazbaeva and Ester Babadzhanyan.
The guys revealed that the procedure for termination of the employment contract was violated on the grounds specified in the Order. Termination on this basis is carried out in compliance with the procedure for applying a disciplinary penalty provided for in clause 6 of Article 53 and Articles 65, 66 of the Labor Code of the Republic of Kazakhstan.
These actions on the part of the employer were not carried out and the act of imposing a disciplinary penalty was sent to the employee in violation of the terms.
The next important step was to collect evidence confirming the absence of facts of non-attendance at work and absenteeism of the employee. There was only one possibility — witness testimony. However, to strengthen the position, petitions were prepared to the Department of Employment, Labor and Social Protection of Astana and the Prosecutor’s Office of the Saryarka district of Astana and conclusions were received, which were subsequently submitted to the court.
As a result, a statement of claim was prepared to the court with the requirements to:
1) reinstate the plaintiff at work;
2) collect from the defendant the average salary for the time of forced absenteeism;
3) recover from the defendant compensation for non-pecuniary damage.
Yesterday, by the decision of the Saryarka District Court of Astana, the claim was fully satisfied.
On November 22, 2017, 80-year-old Mariya Ryspekova applied to KAZGUU Law Clinic, of with a request to represent her interests in court in the case of dismantling an unauthorized storage room, presenting us only a copy of the statement of claim.
The lawsuit against Maria Zhumabekovna was brought by the service organization of ‘Abylaykhan’ Residential Complex, in which the Defendant previously lived. At one time, Maria, having received the verbal consent of the neighbors, built a storage room, but after the sale of the apartment, due to a long illness and old age, she did not have time to take out her personal belongings and dismantle the room. In this situation, it seemed that the only way out was to conclude a settlement agreement with the plaintiff and thereby avoid imposing on the defendant the obligation to pay the state fee and the costs associated with the proceedings.
It was obvious that the claim was subject to satisfaction, since the storeroom was built illegally. However, for our client, the timing was important, in the so-called ‘reasonable time’ to dismantle the pantry, she was not able.
Initially, we requested the postponement of the court session to organize negotiations with the plaintiff.
The representative of the plaintiff categorically insisted that the settlement agreement will be concluded only if it is dismantled within 10 days from the date of approval of the agreement, which was unacceptable for us because of the prolonged illness of Mariya Zhumabekovna.
There was only one thing left — to apply for a postponement of the execution of the court decision.
Together with Araylym Aman, the text of the petition and the response to the claim were prepared, which were transmitted to the representative of Maria Zhumabekovna.
Unfortunately, students can not represent the interests of clients in court, and therefore, on the day of the scheduled meeting, our head Esther Levonovna went to the court, where a few minutes before the start of the meeting, she managed to get acquainted with all the materials of the case and found out that the Plaintiff is not the managing organization of the residential complex, but only serving. It was immediately announced that the claim was filed by an improper plaintiff.
The court’s decision to satisfy the claim was denied!
We have won for Maria Zhumabekovna not only precious time, but also the opportunity to avoid additional expenses.
In conclusion, I would like to add an important rule for all lawyers: DO NOT JUMP TO CONCLUSIONS UNTIL YOU HAVE READ ALL THE DOCUMENTS!!!
Bank mortgage loan
On September 21, 2017, Zhanar Zhanibek (the data is indicated with the consent of the applicant) applied to KAZGUU Law Clinic with a request to represent her interests in civil proceedings in the case of recovery of loan debt under a mortgage loan agreement.
It turned out that Zhanar in 2006 concluded with the Bank ‘…’ a bank loan agreement in foreign currency, under which real estate (housing) was transferred to the Bank as collateral for the fulfillment of the obligation.
In 2015, due to a combination of difficult circumstances (loss of work), Zhanar was unable to make monthly payments in accordance with the schedule. And in January 2016, it refinanced a residential mortgage loan (with currency conversion to tenge) at the exchange rate on the day of refinancing (360 tenge for $1). Thus, the amount of monthly payments has almost doubled. Zhanar, who was temporarily out of work and was a single mother, was unable to make payments for the next year. The bank filed a lawsuit.
The goal was to help Zhanar avoid foreclosure on her only home.
Students of the Law Clinic Marzhan Talap (Law EP, 3rd year), Bolat Kabylov (Law and Law Enforcement EP, 3rd year) under the guidance of Babadzhanyan Esther Levonovna (the head of the clinic) studied all the submitted materials and relevant regulations, including the Resolutions of the Board of the National Bank of the Republic of Kazakhstan. The only way out of this situation was to organize a trilateral meeting between the Bank, the client and the National Bank for the purpose of pre-trial settlement.
On September 26, 2017, a mobile group consisting of Babadzhanyan Esther Levonovna and Bolat Kabylov (3rd year student) together with the applicant went to a trilateral meeting, which was held in the building of the branch of the National Bank with the participation of the director and deputy director of the branch.
As a result of the negotiations, it was possible to legally justify the implementation of the loan restructuring with the reducing of the amount of monthly payments and thereby avoid foreclosure.
The director of the branch of the National Bank of the Republic of Kazakhstan noted the high professionalism of the staff of the Law clinic and outlined the importance and significance of our work on legal assistance to socially vulnerable segments of the population. He also expressed hope for further active actions to implement our goals and objectives.
The first practice in this year has charged all participants of the Law Clinic for further fruitful work to protect the interests of people in need of legal assistance!
P.S. we remind you that you can get free legal advice every Mondays, Wednesdays and Thursdays from 10.00 am to 18.00 pm in the building of KAZGUU University, office 120.
Collection of wages
On March 1, 2017, Zhanna Umurzakovna Umushkanova applied to the KAZGUU Law Clinic (the data is indicated with her consent) with a request to help her to restore her violated labor rights.
As it turned out, Zhanna performed her duties of washing dishes in two places of public catering, without entering into an employment contract. The terms and salary in the amount of 70,000 tenge were agreed verbally. During the conversation, it was found out that the first employer went bankrupt, and the second employer withholds wages, paying only partially the amount of 10,000 tenge. The period between the violation of labor rights and the application to our Law Clinic was 1 month and 12 days.
The applicant’s purpose was clear — to demand wages from unscrupulous employers.
Students of the Law Clinic Darkhan Togyzbayev (Law EP, 3rd year), Ruslan Khuzin (Law, 3rd year) with the participation of teachers – Malika Meirambekovna Tastanova (head of the clinic), Azamat Erlanovich Asanov (senior lecturer of the Department of the Sivil Law and Sivil Procedure Law Department) established witnesses confirming the fact of the client’s performance of work duties.
As a result, through negotiations with the employer, the participants of the KAZGUU Law Clinic settled the dispute in a pre-trial manner! Zhanna received the remaining amount of salary in the amount of 56,600 tenge.
Such examples are very encouraging, as they clearly show how knowledge of the law and the desire to protect the rights of those who need it can make our world a better place and resolve disputes without resorting to litigation.