A claim is an application to the court. It is served to oblige someone to fulfill certain requirements. To win a case in court, you must, at a minimum, file your claim correctly. We will tell you how to file a claim in court and the nuances that are worth considering.
If the amount in dispute is insignificant or the matter is simple and clearly in your favor, then you can draw up and file a claim yourself. But in difficult situations it is better to trust a professional, especially if it is a criminal offense.
What to do before going to court
Before filing a claim, clearly formulate what you want to achieve. You can find the law and look at the practice of the courts to make sure that the requirement is feasible. We are convinced - let's move on.
Try to reach an agreement before the trial
There is no guarantee that when filing a claim in court, the plaintiff will win. In addition, pre-trial dispute resolution is a way to find a beneficial solution for both parties without spoiling the relationship. In some cases, this stage is completely required.
Mandatory pre-trial procedure is provided for the following disputes:
- on the collection of sanctions and mandatory payments;
- about payments under compulsory motor liability insurance;
- upon termination of the lease agreement;
- upon termination of the tenancy agreement;
- on termination of a bank account agreement, etc.
If in your case an attempt to resolve the conflict before trial is mandatory, then before filing a lawsuit, you need to collect evidence that you tried to reach an agreement. Otherwise, the court will simply not accept the claim. Therefore, contact the defendant with a proposal to draw up a pre-trial agreement.
Determine the statute of limitations
You can sue if the statute of limitations has not passed. If the opposite party notices that the period has expired and tells the court about this, then your claim will be denied.
The general limitation period (i.e., the period during which an application can be filed) is 3 years, according to Article 196 of the Civil Code of the Russian Federation. In some cases, shortened deadlines apply (3 months, for example), so it is better to clarify information on a specific situation in advance. The calculation of the period begins from the moment when the violation of the right became known.
Find the defendant
You need to file a lawsuit against someone - decide through whose fault your rights were violated. The defendant may be an individual, legal entity or government agency. You can sue multiple defendants.
If you do not know the defendant's information, you need to find out. By name, address or title, check the individual entrepreneur or legal entity in the register on the Federal Tax Service website. The owner of the apartment can be identified by ordering an extract from the Unified State Register of Real Estate.
Rate the claim
Before filing a lawsuit, you need to determine how much you want to recover from the defendant. If your property is damaged, invite a specialist to assess it.
Let's evaluate rationally. If the court considers that the price of the claim does not correspond to the amount of your damage, then it will be changed when accepting the statement of claim.
Further actions
You need to decide whether you will go to court on your own, or seek help from a lawyer or lawyer.
What is the advantage of turning to professionals? You will be able to choose the exact lawyer or attorney who specializes in resolving these issues. At the first consultation you will be given the necessary recommendations and advice.
If you decide to go to court on your own, evaluate your knowledge and capabilities. When the matter is serious and you need to understand the intricacies, it is better to turn to a professional. In this case, the chances of the outcome of the case in your favor will increase.
Let's say you decide to act on your own. The next step is to write an objection to the statement of claim or file a counterclaim.
The difference between an objection to a claim and a counterclaim is as follows:
- In a statement of defense, you object to the claims brought against you.
- In a counterclaim, you not only object to the plaintiff’s claims, but also put forward independent claims against him, but related to the claims brought against you.
In accordance with Art. 137 of the Code of Civil Procedure of the Russian Federation, the defendant has the right, before the court makes a decision, to file a counterclaim against the plaintiff for joint consideration with the original claim. The filing of a counterclaim is carried out according to the general rules for filing a claim.
In accordance with Art. 138 of the Code of Civil Procedure of the Russian Federation, the judge accepts a counterclaim if:
- the counterclaim is aimed at offsetting the original claim;
- satisfaction of the counterclaim excludes, in whole or in part, satisfaction of the original claim;
- there is a mutual connection between the counterclaim and the original claim, and their joint consideration will lead to a faster and more correct consideration of disputes.
Contents of the statement of claim
The content is regulated by Article 131 of the Civil Procedure Code. The claim states:
- name of the court;
- details of the plaintiff (full name, address);
- defendant's name and address;
- the essence of the violation;
- the circumstances on which the claims are based;
- evidence of the existence of these circumstances;
- the cost of the claim and calculation of the amount (if an assessment is required);
- information on the pre-trial procedure for resolving the dispute (if required);
- list of attached documents.
At the end of the claim, you must put the signature of the plaintiff or his representative. A receipt for payment of the state duty must be attached to the document.
What to write in a statement of claim
According to the law of the Code of Civil Procedure of the Russian Federation, Article 131. Form and content of the statement of claim, the following information must be indicated in the claim:
- The name of the court to which the claim is filed.
- Information about the plaintiff - full name or name, if we are talking about an organization, registration address.
- Information about the defendant.
- How the rights of the plaintiff were violated, what he demands from the defendant.
Briefly describe what exactly happened, provide links to laws. The narrative should be as simple as possible so that the court clearly understands what you want. A vague claim will most likely be left without movement.
The statement should not contain confusion or obvious contradictions. State the circumstances and facts clearly and consistently, without emotion, and add links to the rules of law relevant to the dispute.
If in the text of the claim you refer to incorrect articles of the law, the court does not have the right to refuse you only on this basis, since you are not required to have special legal knowledge.
Lada Gorelik
Be sure to write what you want to receive from the defendant. It is important that the requirement be realistic. Otherwise, the case will end in nothing, even if you win the trial.
- The price of the claim, if the claim is subject to assessment.
- List of documents attached to the claim.
It is necessary to provide the Code of Civil Procedure of the Russian Federation Article 132. Documents attached to the statement of claim, copies of the statement of claim in accordance with the number of defendants, papers confirming the circumstances of the case and your case, calculation of the amount of money collected or disputed, receipt of payment of the state duty.
The main part of the documents is attached in the form of certified copies, but the receipt for payment of the state duty will be required in the original.
The application must contain the signature of the plaintiff or his representative. In the second case, the claim must be accompanied by a copy of the document on the basis of which the representative acts - for example, a power of attorney.
If, by law, you were required to take measures to contact the defendant pre-trial, information about this is also included in the statement of claim.
State fee for filing a claim in court
State duty is not charged on all claims. Plaintiffs who intend to file a claim for alimony, compensation for damage as a result of a crime, recovery of wages, etc. are exempt from payment. (for details, see Article 333.36 of the Tax Code).
If you file a claim of a non-property nature, the fee is fixed - 300 rubles, for divorce - 600 rubles, for alimony - 150 rubles, etc.
In a situation where a property dispute is subject to assessment, the fee is calculated based on the value of the claim. If you file a claim for an amount up to 20 thousand rubles, the duty will be 4%, but not less than 400 rubles. For a claim from 20,001 to 100 thousand rubles. the duty will be 800 rubles. + 3% of the amount over 20,000 rubles. All dimensions are specified in Section 333.19 of the Internal Revenue Code. Details for paying the fee can be found on the website of the selected court.
The court decides whether to accept the claim within 5 days from the date of its receipt. For administrative disputes, the period is even shorter - 3 days. You can check your acceptance by calling the court office or on the court website.
Which court should I file my claim in?
If going to court to file a claim cannot be avoided, then the question arises of which authority to contact. Civil cases are within the jurisdiction of the district or magistrate court, which receives claims from the population. The Magistrates' Court hears cases requiring the issuance of an order. These include, for example, issues of divorce, if the spouses do not have disputes about minor children, jointly acquired property (only if its value does not exceed fifty thousand rubles), etc. All other cases are considered by the district court.
Often citizens who do not have judicial experience wonder which court to file a claim in: either at their place of residence, or at the place of residence of the other party to the conflict. Usually, to file a claim, an instance is selected near the location of the defendant.
If both parties to the conflict live in the same city, but in different areas, then the petition must be submitted to the authority geographically located in the defendant’s area. If citizens live in different cities, then the same rule must be followed. The claim will have to be filed in the defendant’s city of residence.
However, this rule is not unconditional. Sometimes the territorial choice of the court where it is planned to file a claim belongs to the claimant. In this case, the location of the defendant does not matter. This option is possible if the appeal to the court is initiated by the desire to protect the consumer rights of a citizen, to collect alimony or to dissolve a marriage.
It is also possible to choose a court by mutual agreement of the parties: the so-called “contractual jurisdiction”. Before filing a claim, you should familiarize yourself with the rules and requirements for its preparation. Regardless of which court you plan to file the application with, the form of the document will not be fundamentally different.
What happens if you file a claim incorrectly?
If all the necessary information is not provided or not all documents are attached, the court will set a deadline for correcting the deficiencies. After corrections, the claim is considered filed from the moment it was initially filed with the court.
The claim is immediately returned if the plaintiff did not eliminate the violations within the period established by the court, sent the claim to the wrong court, or did not comply with the pre-trial procedure for resolving the dispute. If you submit the document correctly, the court will set a hearing date.
Sources:
Lawsuit
Limitation of actions
Disputes with mandatory pre-trial procedure
Are you having a conflict? Contact the magistrate!
Are you having a conflict? Contact the magistrate!
This article is the first in a series of articles that will tell you how to properly file a claim with a magistrate, how to behave in court, and what to do after the court case has been considered.
Let's start with the fact that in accordance with Art. 23 of the Code of Civil Procedure of the Russian Federation, the magistrate considers the following categories of cases:
– Cases regarding the issuance of a court order;
– Divorce cases, if there is no dispute between the spouses about children;
– Cases on the division of jointly acquired property between spouses without limiting the value of the claim;
– Other cases arising from family legal relations, with the exception of cases of challenging paternity (maternity), establishing paternity, depriving parental rights, establishing the adoption of a child;
– Cases on property disputes where the cost of the claim does not exceed 500 times the minimum wage established by law at the time of filing the application;
– Cases arising from labor relations, with the exception of cases of reinstatement and cases of resolution of collective labor disputes;
– Cases on determining the procedure for using property;
– Other cases referred by federal law to the competence of justices of the peace.
If the specified list does not indicate the problem for which you want to appeal, it means that the consideration of the dispute falls within the competence of the relevant city (district) court.
Any of your appeals to the magistrate must be submitted in writing, and it is better if an employee of the magistrate’s office also puts the incoming number and date of acceptance on its copy, so that you have confirmation that the documents have been submitted. For your convenience, documents can be sent by mail with a return postal notification to your home address.
The appeal is sent to the magistrate with the obligatory indication of the court precinct number. Since magistrates consider disputes within certain territories (streets), and as a general rule, a statement of claim is filed at the place of residence of the defendant, and a claim against an organization is filed at the location of the organization, you first need to find out the exact address of the defendant, and then look at which court district The magistrate applies to the specified territory. For example, if the defendant lives on Mendeleev Street, then the statement of claim is submitted to the magistrate of court district No. 32 of Veliky Novgorod. However, you can also send claims to the court district at your place of residence, but their list is strictly limited by law. These include the following categories of disputes:
– On the collection of alimony and on establishing paternity;
– On divorce if a minor child lives with you or for health reasons it is difficult for you to go to court at the defendant’s place of residence. In this case, the specified circumstances must be documented (the registration certificate is confirmation of cohabitation with the child, the state of medical health is confirmed by the corresponding medical certificate).
– Claims for restoration of labor, pension and housing rights, return of property or its value, related to compensation for losses caused to a citizen by illegal conviction, illegal criminal prosecution, illegal use of detention as a preventive measure, recognizance not to leave, or illegal imposition of administrative punishment in the idea of arrest.
– On the protection of consumer rights.
When applying, you must clearly indicate your requirements, or better yet, refer to the law that governs the relationship on your controversial issue.
According to Art. 131 of the Code of Civil Procedure of the Russian Federation, the statement of claim must indicate:
– The correct name of the court site;
– Name of the plaintiff and his place of residence (location for organizations);
– Name of the defendant (last name, first name, patronymic), his place of residence (telephone, if known);
– What is the violation or threat of violation of the rights, freedoms or legitimate interests of the plaintiff and his demand;
– The circumstances on which the plaintiff bases his claims and evidence confirming these circumstances;
– The price of the claim, if it is subject to assessment, as well as the calculation of the amounts collected or disputed;
– Information on compliance with the pre-trial procedure for contacting the defendant, if this is established by federal law or provided for by the agreement of the parties;
– List of documents attached to the application.
The statement of claim is signed by the plaintiff or his representative if he has the authority to sign the statement and present it to the court.
