Law office “Kasyanenko and partners”, in particular leading lawyer Dmytro Kasyanenko, celebrates a significant victory in the Supreme Court of Ukraine. Defending our client’s property rights, we proved the importance of legal analysis and the correctness of court decisions of previous instances.
On March 13, 2024, it became known that the Supreme Court of Ukraine confirmed the legitimacy and legality of the decisions of lower courts, protecting our client’s property rights in case No. 369/7450/21. This decision is a key precedent, especially for those seeking qualified legal assistance from a Golden Gate attorney or needing representation in disputes with PrivatBank.
The final word of the Supreme Court was pronounced in favor of our client – the decision was made in accordance with the norms of substantive and procedural law. First of all, it follows from the decision of June 24, 2016 (Kyiv-Svyatoshinsky district court in case No. 369/8077/13-ts) that there are no legal grounds for the enforcement of a court decision regarding the client’s residential building – excluding actions as a state executive service, and private performers.
It is significant that the lawyer of PrivatBank should take into account that according to the decisive part of the specified decision, the mortgagee’s right to sell the subject of the mortgage does not provide for the possibility of carrying out an assessment of the debtor’s other property, in particular, the land plot that is the subject of the dispute.
On August 15, 2023, in his ruling, the judge of the Kyiv-Sviatoshyn District Court came to a separate conclusion that the decision of June 24, 2016 of the Kyiv-Sviatoshyn District Court in case No. 369/8077/13-ts excludes the possibility of carrying out the provisions of the Law of Ukraine “On Executive Proceedings” measures to enforce a court decision by state executive service bodies and private executors:
- “In addition, according to the content of the operative part of the absent decision of the Kyiv-Sviatoshyn District Court, which in the executive document No. 369/8077/13-ts dated May 16, 2017, provides for the right of the mortgagee of PJSC KB PrivatBank to sell the subject of the mortgage with the conclusion of in the name of the defendant of the sales contract, which excludes the possibility of carrying out the measures provided for by the Law of Ukraine “On Enforcement Proceedings” for enforcement of the court decision by state executive service bodies and private executors.”
- “Private executor of the executive district of the city of Kyiv Korolev M.A. it was not taken into account that the subject of foreclosure is a residential building located at the address: ADDRESS_1, and therefore the private executor did not have the grounds provided by law for carrying out an assessment of another property belonging to the debtor of a land plot with an area of ____ square meters, cadastral number: ________ intended purpose for the construction and maintenance of a residential building, farm buildings and structures (homestead).”
- In addition, the court draws attention to the illegality of the acceptance by the private executor of the executive district, M.A. Korolev. Resolution dated July 29, 2020 on the appointment of an expert, subject of evaluation activity in executive proceedings No._____ in order to implement the decision.
- By the decision of the Kyiv Court of Appeals dated December 8, 2022 in case No. 369/7439/21, by which the actions of the private executor of the executive district of the city of Kyiv M.A. Korolev were recognized as illegal. on the issuance of an act and resolution on the description and seizure of the debtor’s property dated July 23, 2020 in the executive proceedings of VP No._______ and the act and resolution were canceled.
On January 30, 2024, in its decision, the Kyiv Court of Appeals reached a separate conclusion that the decision of June 24, 2016 of the Kyiv-Sviatoshyn District Court in case No. 369/8077/13–ts excludes the possibility of carrying out the measures provided for by the Law of Ukraine “On Enforcement Proceedings” from compulsory execution of a court decision by state executive service bodies and private executors:
- “Also, the panel of judges believes that contrary to the arguments of the private executor’s appeal, the court of first instance correctly took into account that according to the content of the operative part of the absent decision of the Kyiv – Svyatoshynsky district court of the Kyiv region, which in executive document No. 369/8077/13-ts from On May 16, 2017, the right of the mortgagee of PJSC KB PrivatBank to sell the subject of the mortgage with the conclusion of a sales contract on behalf of the defendant is provided, which excludes the possibility of carrying out the measures provided for by the Law of Ukraine “On Enforcement Proceedings” to enforce the court decision by the bodies of the state executive service and by private performers.”
The private executor did not take into account that the subject of foreclosure is the residential building located at the address: ADDRESS_1, and therefore the private executor did not have the legal grounds for carrying out an assessment of other property belonging to the debtor: a land plot with an area of __________ square meters , cadastral number: ________, with a target purpose for the construction and maintenance of a residential building, farm buildings and structures (homestead).
The Supreme Court cited a legal analysis of the provisions of Law No. 1404-VIII indicating that the executor has the right to take any measures aimed at the enforcement of decisions within the framework of executive proceedings in the manner and in the order established by the executive document under this Law.
At the same time, the legal basis for taking such measures is the resolution on the opening of executive proceedings. Therefore, the performance of any other actions related to the enforcement of the decision is inextricably linked with the resolution on the opening of executive proceedings. The cancellation of such a resolution entails the cancellation of all other actions taken by the executor aimed at enforcing the decision.
That is, recognition as illegal and annulment of the resolution on the opening of executive proceedings automatically and unconditionally has the consequence of recognizing as illegal all other actions and decisions of the executor within the scope of such executive proceedings.
Therefore, having established that the resolution of the private executor dated July 14, 2020 on the opening of executive proceedings No._________ was recognized as illegal and canceled by the decision of the Kyiv Court of Appeals dated December 02, 2021 in case No. 369/7440/21, the panel of judges believes that the court of first instance reached the correct conclusion that the resolution of July 29, 2020 issued by the private executor on the appointment of an expert, subject of evaluation activity within the scope of this executive proceeding NUMBER_1 is illegal and subject to cancellation, since any executive actions can be performed only within the legally open and current enforcement proceedings.
In addition, as correctly established by the court of first instance in absentia decision of the Kyiv-Svyatoshinsky district court of the Kyiv region dated June 24, 2016 in case No. 369/8077/13-ts in order to repay the debt under the credit agreement in the amount of 920,102.85 US dollars, which is equivalent to UAH 7,351,621 77 kopecks, foreclosure was made on the house belonging to V.V. Grishko with a total area of ________ sq.m., living area of _________ sq.m. method with another person-buyer, with obtaining an extract from the State Register of Real Property Rights to immovable property, with registration of the deed of purchase and sale of the subject of mortgage in the State Register of Real Property Rights to immovable property, carrying out actions to correct the technical documentation in accordance with the current state of the real estate, its redevelopment and reconstruction, with the execution of actions regarding registration and with the receipt of duplicates of title documents for real estate in relevant institutions, enterprises or organizations, regardless of the forms of ownership and subordination, with the possibility of PJSC CB “PrivatBank” carrying out all the actions provided for by the regulatory and legal acts of the state, necessary for the sale the subject of the mortgage.
However, in accordance with the resolution of the private executor dated July 29, 2020 on the appointment of the subject of evaluation activity – the business entity Expert Service of Ukraine LLC was obliged to provide an opinion on the value of the property and a report on the assessment of the property described and seized in accordance with the resolution on the description and seizure of property from July 23, 2020 in executive proceedings NUMBER_1.
That is, the private executor did not take into account that the subject of the foreclosure is a residential building, and therefore the private executor did not have the grounds provided by law for carrying out an assessment of other property belonging to the debtor: a land plot with an area of _________ sq.m., k
Therefore, on March 13, 2024, the panel of judges of the Supreme Court issued a final decision, which entered into force and believes that, contrary to the arguments of the appeal of the private executor, the court of first instance correctly considered that according to the content of the operative part of the absent decision of the Kyiv-Sviatoshyn District Court of the Kyiv Region, that the executive document No. 369/8077/13-ts dated May 16, 2017, provides for the right of the mortgagee of PJSC KB PrivatBank to sell the subject of the mortgage with the conclusion of a sales contract on behalf of the defendant, which excludes the possibility of carrying out the provisions of the Law of Ukraine “On Executive proceedings” of measures for the enforcement of a court decision by state executive service bodies and private executors.
This court case highlights the importance of quality legal assistance and proves that a lawyer at the Golden Gate should not only be highly qualified in conducting cases in the Supreme Court but also have a deep understanding of the specifics of property rights cases.
Conclusion:
The successful result in the Supreme Court once again confirms the competence and high professionalism of lawyer Dmytro Kasyanenko and the daily work of the team “Kasyanenko and Partners”. We continue to provide our clients with effective protection of their rights and interests in national courts, including in the Supreme Court, defending justice and the implementation of the law.
List of documents to protect the rights of real estate owners in the Supreme Court:
- Power of attorney to represent the interests of the real estate owner from a lawyer.
- A copy of the passport and identification code of the property owner.
- Documents confirming ownership of real estate (certificate of ownership, sales contract, donation, inheritance, etc.).
- Technical passport for real estate.
- Extract from the State Register of Real Property Rights.
- Decisions of courts of previous instances.
- Objectionable documents (acts, resolutions, and other documents of private or state executors).
- Executive letter, which is the subject of illegal actions.
- Appeals and cassation appeals.
- Extracts from registers and other documents confirming illegal actions (for example, records of seizure of property, reports on valuation, etc.).
- Correspondence with executive services and other documents testifying to the communication of the parties.
- Claim to the Supreme Court (cassation appeal) with relevant attachments.
- Evidence (photos, videos, witness statements, etc.) that can be used to protect property rights.
- Legal opinions, expert assessments, and other analytical materials.
- Documents indicating shortcomings in the work of performers (for example, decisions on disciplinary cases of performers).
Three options for solving issues by a lawyer in the Supreme Court:
- Conducting the cassation review procedure.
A lawyer can ask the Supreme Court to cancel the decisions of lower courts and send the case for a new trial, if violations of substantive or procedural law that affected the decision in the case are proven. - Presentation of new evidence and arguments.
A lawyer can submit to the Supreme Court new circumstances or evidence that were not taken into account during previous court hearings to obtain a reversal or modification of the decision. - Use of legal conflicts or innovations in legislation.
In the event of changes in legislation that may affect the consideration of an existing court case, the lawyer may propose to the Supreme Court to review the decision in light of new legislative norms to protect the rights and interests of the client.
In each individual case, the client’s defense strategy in the Supreme Court is coordinated taking into account the entire range of legal nuances of the case, special circumstances, the availability of evidence, and prospects for changing or canceling the decision.
DECISION OF THE SUPREME COURT
https://reyestr.court.gov.ua/Review/117657078
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