Absentee court decision. Cancellation of default judgment. Advice from a lawyer

Features of the case in absentia

As the name suggests, such a process is carried out without the participation of one of the parties - the defendant in the case. Otherwise, the usual procedural rules apply - interviewing the plaintiff, examining evidence, calling witnesses, etc. (Article 234 of the Code of Civil Procedure of the Russian Federation).

A situation should be distinguished from absentee proceedings when the defendant asked to consider the case in his absence by sending a corresponding petition to the court. In this case, the transition to an absentee decision will not take place.

A decision in absentia in a case can be made under the following conditions listed in Article 233 of the Code of Civil Procedure of the Russian Federation:

• The defendant was notified of the court hearing,
• The defendant did not appear in court without warning and did not report that the failure to appear was due to valid reasons (illness, business trip, etc.);
• The defendant did not ask for the case to be considered in his absence;
• The plaintiff does not object to the hearing in absentia (read on to find out why he may object);
• The plaintiff did not change the subject or basis of the claim, and also did not increase the claims in comparison with those with which the defendant was familiar.

The last rule is due to the fact that the defendant has the right to be acquainted with the demands presented to him in their final form (for example, if the defendant knew that the price of the claim would increase, he could still appear in court).

Olga Smirnova

Civil lawyer, Master of Laws

Since a default judgment is adopted in a different manner compared to the usual process, where the defendant’s position is heard in court, Article 237 of the Code of Civil Procedure of the Russian Federation provides for simplified rules for canceling a default judgment at the request of the defendant. In order to ensure the possibility of appeal, the court is obliged to send a copy of the default judgment to the defendant.

Why a default judgment can be dangerous

Due to the summary reversal procedure, not all plaintiffs agree to a default judgment. The desire to save time at the consideration stage may result in a delay in the process if the defendant can prove the existence of valid reasons for canceling the judicial act. As a result, the plaintiff not only does not win, but also loses in time.

Olga Smirnova

Civil lawyer, Master of Laws

Before agreeing to an absentee hearing, you need to weigh the pros and cons of this option. If there is an assumption that the reasons for the defendant’s failure to appear in court may be valid, it makes sense to insist on the continuation of the ordinary process. In this case, the court will postpone the hearing and send a new summons to the defendant (clause 3 of Article 233 of the Code of Civil Procedure of the Russian Federation).

Article 233 of the Code of Civil Procedure of the Russian Federation. Grounds for proceedings in absentia (current version)

- consideration of the case in the absence of the defendant according to the general rules of claim proceedings - if the defendant was notified, but did not inform the court about good reasons for failure to appear (part 4 of article 167 of the Code of Civil Procedure of the Russian Federation);

— consideration of the case according to the rules of absentee proceedings (if there are grounds listed in paragraph 1 of the commentary to this article).

Established by the interrelated provisions of Part 4 of Art. 167 and part 1 of Art. 233 of the Code of Civil Procedure of the Russian Federation, the right of the court to consider a case in the absence of the defendant, who has been notified of the time and place of the court hearing, if he has not informed the court of valid reasons for failure to appear and has not asked to consider the case in his absence, in absentia proceedings follows from the principle of autonomy and independence of the judiciary. When resolving the question of in what order and procedure it is necessary to consider the case, the court evaluates in totality all the circumstances of the case, taking into account the available materials and the opinions of those present participating in the case, based on the tasks of civil proceedings and the obligation on it to make a legal and an informed decision .

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See: Determination of the Constitutional Court of the Russian Federation dated March 22, 2011 N 435-О-О “On the refusal to accept for consideration the complaint of citizens Elena Alexandrovna Isakova and Talina Alexandrovna Krivtsova for violation of their constitutional rights by Article 208 of the Civil Code of the Russian Federation, Articles 118, 167, 233, 350, 357, 358 of the Civil Procedure Code of the Russian Federation.”

Thus, consideration of the case in absentia proceedings is not a mandatory consequence of the defendant’s failure to appear in court. The issue of moving to consideration of the case according to the rules of absentee proceedings, consideration of the case in the absence of the defendant in the general claim procedure or postponing the trial is decided at the discretion of the court, taking into account the opinions of the plaintiff and other persons participating in the case who appeared at the court hearing.

Example: by decision of the Nikulinsky District Court of Moscow dated December 5, 2021, E.’s claim was satisfied, and the amount of debt under the loan agreement and the costs of paying the state duty were recovered from P. in favor of E. The plaintiff appeared at the trial court hearing and supported the claims in full. The defendant did not appear at the court hearing, was duly notified of the date of the hearing, did not inform the court of the reasons for her failure to appear, and did not submit written objections to the claim.

Challenging the court's decision to satisfy the claim, defendant P. referred to the fact that the court was obliged to consider the case in absentia proceedings in the absence of the defendant. This argument was recognized by the court of appeal as untenable and not entailing the reversal of the court decision, since in accordance with Part 1 of Art. 233 of the Code of Civil Procedure of the Russian Federation, consideration of a case in absentia with proper notification of the defendant is the right of the court, and not its duty (see the Appeal ruling of the Moscow City Court dated March 16, 2021 in case No. 33-9466/17).

4. There is often an opinion that the implementation of the absentee procedure for considering a case requires repeated failures of the defendant to appear at court hearings. However, such recommendations appear to be erroneous. The repeated failure of the defendant to appear at court hearings as a condition for consideration of the case in absentia proceedings is not required by law, and there is not sufficient data to draw a conclusion about the approach established in judicial practice to consider the case in this manner only after the defendant’s repeated or subsequent failure to appear in court.

Thus, the defendant’s failure to appear even at the first court hearing may result in the case being considered in absentia if there are other provisions provided for in Art. 233 of the Code of Civil Procedure of the Russian Federation grounds for such a judicial procedure.

5. Let us also consider the issue of the admissibility of a trial in absentia with the participation of a representative of the defendant in the court hearing in the absence of the defendant himself. The judicial representative is not an independent person participating in the case, and in the process acts on behalf of the person represented (in the case under consideration - on behalf of the defendant). Consequently, if a representative of the defendant, whose powers are duly formalized, appears at the court hearing, the case cannot be considered in absentia proceedings.

This conclusion fully applies to cases involving a court-appointed representative who is involved in the process on the initiative of the court when the defendant’s place of residence is unknown (Article 50 of the Code of Civil Procedure of the Russian Federation).

6. Notification of the persons participating in the case about the holding of a court hearing refers to the general requirements for holding court hearings in civil cases. The commented Chapter 22 of the Code of Civil Procedure of the Russian Federation does not contain any special rules on notification.

Requirements for judicial notices are contained in Chapter 10 of the Code of Civil Procedure of the Russian Federation. Persons participating in the case are notified or summoned to court by registered mail with acknowledgment of delivery, a summons with acknowledgment of delivery, by telephone or telegram, by facsimile or using other means of communication and delivery that ensure the recording of the judicial notice or summons and its delivery to the addressee.

The Code of Civil Procedure of the Russian Federation does not limit the choice of courts to specific methods of notification if they provide for receipt of confirmation of delivery of the notification. This means that whatever specific method of notification is chosen to the persons participating in the process, domestic courts must have at their disposal evidence confirming receipt of the judicial notice by the addressee.

The European Court of Human Rights found a violation of Art. 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms ETS N 005 (Rome, 4 November 1950) in many cases against the Russian Federation in which the domestic courts did not examine the receipt of evidence of service of the judicial notice and limited themselves to a general conclusion that the person involved in the case, there was “due notice” without proof of delivery of the notice. Domestic courts are required to identify any problems with notification of the parties to the proceedings before considering the merits of the case. Courts cannot conclude that a litigant has waived his or her right to attend a trial in person without first determining whether he or she actually knew of the existence of that right and, therefore, of the particular trial (see Judgment European Court of Human Rights dated May 31, 2021 in the case “Gankin and others v. Russian Federation”).

Article 165.1 of the Civil Code of the Russian Federation determines the procedure for sending legally significant messages. The Plenum of the Supreme Court of the Russian Federation in Resolution No. 25 of June 23, 2015 “On the application by courts of certain provisions of Section 1 of Part 1 of the Civil Code of the Russian Federation” explained that Art. 165.1 of the Civil Code of the Russian Federation is also applicable to judicial notices and summonses, unless otherwise provided by civil procedural or arbitration procedural legislation (clause 68).

In particular, Art. 165.1 of the Civil Code of the Russian Federation (taking into account the interpretations of the Plenum of the Supreme Court of the Russian Federation, set out in Resolution No. 25 of June 23, 2015) provides for the following provisions important for civil proceedings:

- a legally significant message addressed to a citizen must be sent to the address of his registration at the place of residence or stay, or to the address that the citizen indicated himself, or to his representative;

- a legally significant message addressed to a citizen carrying out business activities as an individual entrepreneur, or to a legal entity, is sent to the address indicated, respectively, in the Unified State Register of Individual Entrepreneurs or the Unified State Register of Legal Entities, or to the address indicated by the individual entrepreneur or legal entity;

- a citizen, individual entrepreneur or legal entity bears the risk of the consequences of failure to receive legally significant messages delivered to the above addresses, as well as the absence of his representative at the specified addresses;

- if the person sending the message knows the address of the citizen’s actual place of residence, the message can be sent to such an address;

— if a foreign legal entity has a representative on the territory of the Russian Federation, messages delivered to the address of such a representative are considered received by the foreign legal entity;

- the addressee of a legally significant message, who has received and established its content in a timely manner, does not have the right to refer to the fact that the message was sent to the wrong address or in an inappropriate form;

— the burden of proving the fact of sending (implementation) of a message and its delivery to the addressee lies with the person who sent the message;

- a legally significant message is considered delivered even in cases where it was received by the person to whom it was sent, but due to circumstances depending on him, was not delivered to him or the addressee did not familiarize himself with it. For example, a message is considered delivered if the addressee avoided receiving the correspondence at the post office, and therefore it was returned after the expiration of the storage period;

— the risk of non-receipt of received correspondence is borne by the addressee.

There is no unity in judicial practice as to whether all of the above provisions are applicable to proceedings in absentia.

In accordance with one position, in order to consider a case in absentia, the court must have data that reliably indicates that the defendant has received notice of the time and place of the court hearing; legal assumptions about his proper notification in the event of failure to receive a judicial notice sent to the place of registration of the defendant do not apply in absentee proceedings.

This position is reflected, for example, in the following court case.

Example: plaintiffs P.P.A., P.D.P. filed a lawsuit against A.O.V. on recognition of him as having lost the right to use residential premises, deregistration. In support of their claim, the plaintiffs indicated that they are the tenants of the apartment, besides them, the son of the deceased wife of the plaintiff P.P.A. is registered in the apartment. - defendant A.O.V., who does not live in the apartment for a long time, does not have things in the apartment, and does not bear the cost of paying for the living space. The defendant did not appear at the court hearing; the court considered the case in his absence in absentia proceedings.

By absentee decision of the Nagatinsky District Court of Moscow dated October 8, 2015, the claims were satisfied, A.O.V. recognized as having lost the right to use residential premises. However, the appeal ruling of the Moscow City Court overturned the default judgment due to the discovery of a significant violation of procedural law.

As the court of appeal indicated, the court notified the defendant A.O.V. about the time of the trial by sending a summons to the place of its registration. The envelope with the subpoena was returned to the court after the expiration of the retention period. Under such circumstances, the court did not have the right to consider this case in absentia proceedings, since, within the meaning of Art. 233 of the Code of Civil Procedure of the Russian Federation, the defendant must be notified personally about the time of consideration of the trial.

From the case materials, it is clear that the defendant was notified by the court of first instance to appear at court hearings several times at his known place of residence, but the measures taken by the court did not make it possible to serve the court notice on the defendant. Therefore, the court had every reason to consider the case in accordance with Art. 119 of the Code of Civil Procedure of the Russian Federation based on the evidence available in the case, but not in absentia proceedings (see the Appeal ruling of the Moscow City Court dated March 2, 2021 in case No. 33-7037/2017).

Other courts take a similar position.

Example: by absentee decision of the Kirovsky District Court of St. Petersburg dated July 14, 2014, the claims of U. to V. for the collection of the amount of debt under the loan agreement and interest were satisfied.

Canceling the default judgment on the appeal of defendant V., the St. Petersburg City Court indicated the following: consideration of a civil case in absentia proceedings is possible only if the absent defendant was duly notified of the time and place of consideration of the case, that is, only if there is such a formal circumstance, such as the defendant receiving a subpoena. As can be seen from the case materials, the notice of the court hearing scheduled for July 14, 2014 was not delivered to the addressee by the communications organization due to his absence from his place of residence. This circumstance indicates that the court had no grounds to consider the case in the manner established by Chapter 22 of the Code of Civil Procedure of the Russian Federation.

Meanwhile, in the absence of information about proper notification of the defendant, the court, in violation of the requirements of Art. 233 of the Code of Civil Procedure of the Russian Federation considered the case without his participation in absentia proceedings. In connection with this violation committed by the court of first instance, the default judgment was canceled and the case was considered by the court of appeal according to the rules of proceedings in the court of first instance, without taking into account the specifics provided for in Chapter 39 of the Code of Civil Procedure of the Russian Federation (see the Appeal ruling of the St. Petersburg City Court dated February 13, 2021 in case No. 33-2851).

In judicial practice, there is another position, which consists in the fact that the requirements for notification of persons participating in the case, as well as the legal consequences of failure to receive court notices, are the same for both the general claim procedure and for absentee proceedings.

Example: an absentee decision of the Oktyabrsky District Court of the Sverdlovsk Region satisfied the claims of Russian Post LLC dated August 31, 2005 N 343, Special conditions for the acceptance, delivery, storage and return of postal items of the “Judicial” category were put into effect, by virtue of clause 3.4 and clause 3.6 of which, if the addressees fail to appear for such postal items within three working days after delivery of the primary notices, secondary notices are delivered to them and handed over against receipt. Registered letters and parcels of the “Judicial” category that have not been delivered to the addressees are returned to the return address after seven days from the date of their receipt at the postal facility.

The return to court of a registered letter not received by the addressee after several notifications does not contradict the current procedure for delivering registered letters and can be assessed as proper information from the communications authority about the addressee’s failure to appear to receive a registered letter. In such situations, the postal authority is assumed to be diligent in taking all repeated measures necessary for the delivery of judicial correspondence, until otherwise is proven by the interested addressee. If a participant in the case, during the storage period of registered mail equal to seven days, did not appear without good reason to receive court correspondence at the invitation of the postal authority, then the court has the right to recognize such a person as having been properly notified of the place and time of the court hearing on the basis of Art. 117 of the Code of Civil Procedure of the Russian Federation and consider the case in his absence in absentia proceedings (Article 233 of the Code of Civil Procedure of the Russian Federation).

In accordance with paragraph 1 of Art. 35 of the Code of Civil Procedure of the Russian Federation, persons participating in the case must conscientiously use all procedural rights that belong to them. The appellant did not provide evidence to support the impossibility of receiving court correspondence for good reasons, and the lack of proper control over postal correspondence arriving at the place of residence (registration) is the risk of the citizen himself, all adverse consequences of such inaction are borne by the adult individual (see the Appeal decision of the Sverdlovsk Regional court dated February 7, 2021 in case No. 33-624/2017).

The latter position seems more correct, since the norms of Chapter 10 of the Code of Civil Procedure of the Russian Federation are of a general nature and fully apply to proceedings in absentia.

7. The defendant must inform the court of the reason for failure to appear at the court hearing. Part 1 art. 167 of the Code of Civil Procedure of the Russian Federation provides that persons participating in the case are obliged to notify the court of the reasons for failure to appear and provide evidence of the validity of these reasons.

As the European Court of Human Rights noted in one of its cases, persons involved in a case have a corresponding obligation to provide accurate contact information and indicate any changes that may arise during the course of the trial. Unlike criminal proceedings, in civil proceedings domestic courts cannot be held responsible for failure to ascertain the reasons for the failure of persons participating in a civil case to appear, provided that the persons participating in the case were aware of the civil claims filed against them (see the European Court's judgment on Human Rights of May 31, 2021 in the case “Gankin and others v. Russian Federation”).

Cumulative interpretation of Part 1 of Art. 167 and part 1 of Art. 233 of the Code of Civil Procedure of the Russian Federation allows us to conclude that the defendant’s fulfillment of the procedural obligation to inform the court of the reason for failure to appear at a court hearing in the event of failure to appear for a good reason is a message about a good reason with the provision of evidence confirming the good reason for failure to appear in court.

8. The consent of the plaintiff to consider the case in absentia proceedings is a mandatory condition for the consideration of the case according to the rules of absentee proceedings. The law does not provide for the form of expression of consent, just as the moment when the plaintiff can express such consent is not defined.

As a rule, consent to consider the case in absentia proceedings is expressed by the plaintiff in the preparatory part of the court session, when the court, having established the defendant’s failure to appear at the court hearing, brings up for discussion the persons participating in the case the question of the possibility of moving to the consideration of the case according to the rules of absentee proceedings with the issuance of a decision in absentia .

However, consent may be given by the plaintiff earlier, before the defendant’s failure to appear at the court hearing is established. For example, it can be expressed in a statement of claim, in a written petition filed at the stage of preparing the case for trial.

If consent to consider the case in absentia is expressed by the plaintiff at the court hearing, it can be stated orally and reflected in the minutes of the court session.

In order for the plaintiff to have informed consent, the court must explain to him the essence of the proceedings in absentia and the consequences of making a decision in absentia.

The commented article does not regulate the issue of obtaining consent in case of procedural complicity on the plaintiff’s side. It seems that in this case, in the absence of the consent of at least one of the co-plaintiffs, the case cannot be considered in absentia proceedings.

9. The law says nothing about the consent of other persons participating in the case to proceedings in absentia.

In addition to the plaintiff and the defendant, the parties involved in the case include third parties, the prosecutor, as well as persons who apply to the court for the protection of the rights, freedoms and legitimate interests of other persons or enter into the process in order to give an opinion - state authorities, local governments , organizations or citizens filing a petition in court in defense of the rights, freedoms and legitimate interests of other persons at their request or in defense of the rights, freedoms and legitimate interests of an indefinite number of persons (Article 46 of the Code of Civil Procedure of the Russian Federation), state bodies, local government bodies, intervening in the case in cases provided for by law to give an opinion on the case in order to implement the duties assigned to them and protect the rights, freedoms and legitimate interests of other persons or the interests of the Russian Federation, constituent entities of the Russian Federation, municipalities (Article 47 of the Code of Civil Procedure of the Russian Federation).

The prosecutor who filed the application enjoys all procedural rights and bears all the procedural obligations of the plaintiff, with the exception of the right to conclude a settlement agreement and the obligation to pay court costs (Part 2 of Article 45 of the Code of Civil Procedure of the Russian Federation). A similar status is enjoyed by persons who have filed an application in defense of the legitimate interests of other persons (Part 2 of Article 46 of the Code of Civil Procedure of the Russian Federation).

Taking into account the fact that the prosecutor and those listed in Art. 46 of the Code of Civil Procedure of the Russian Federation, persons have procedural rights as a plaintiff, while the issue of the procedural order of consideration of the case is not related to the disposal of substantive rights, which requires the consent of exclusively material plaintiffs; in order to consider the case in absentia proceedings, the court must obtain the consent of the listed participants in the process.

As for third parties who do not make independent claims regarding the subject of the dispute (Article 42 of the Code of Civil Procedure of the Russian Federation), acting on both the side of the plaintiff and the side of the defendant, their consent to consider the case in absentia proceedings is not required.

It is impossible to consider a case in absentia with the participation of third parties in the case making independent claims regarding the subject of the dispute. Third parties who file independent claims regarding the subject of the dispute enjoy all the rights and bear all the obligations of the plaintiff (Part 1 of Article 42 of the Code of Civil Procedure of the Russian Federation). The defendants in such a claim are either the original plaintiff or the original plaintiff and defendant. Thus, the sequence of actions of the parties characteristic of absentee proceedings (the defendant did not appear at the court hearing; the plaintiff agreed to have the case heard in absentia) cannot be observed due to the presence of two procedural statuses in one person (for example, the plaintiff in the original claim, the defendant in the third party claim). For the same reason, it is impossible to apply absentee proceedings to cases in which the original defendant filed a counterclaim against the original plaintiff (Article 137 of the Code of Civil Procedure of the Russian Federation).

10. In the absence of the consent of the plaintiff, the case cannot be considered in absentia proceedings, regardless of the motives for such a decision of the plaintiff.

The lack of consent of the plaintiff to consider the case in absentia may entail the following legal consequences:

- adjournment of the trial;

— consideration of the case according to the general rules of litigation in the absence of the defendant.

Example: by absentia decision of the Simonovsky District Court of Moscow dated April 15, 2021, the claims of P.N. were satisfied. to Butz, B. and Partners LLC for the collection of funds. With Butz, B. and Partners LLC in favor of P.N. money was collected for services not provided, penalties, fines, and legal expenses.

In canceling the default judgment on the defendant's appeal, the Moscow City Court pointed out that, in resolving the issue of the possibility of considering the case in the absence of the defendant, as follows from the content of the decision, the court of first instance proceeded from the fact that the defendant was notified of the time and place of the court hearing. At the same time, the plaintiff’s consent, as follows from the minutes of the court session, was not obtained to consider the case in absentia proceedings.

Under these circumstances, the court should have considered the case in accordance with Art. 167 of the Code of Civil Procedure of the Russian Federation in the absence of the defendant, notified at the last location known to the court, however, provided for in Art. 233 of the Code of Civil Procedure of the Russian Federation there were no grounds for considering the case in absentia proceedings (see Appeal ruling of the Moscow City Court dated February 20, 2021 No. 33-6523/2017).

11. The Code of Civil Procedure of the Russian Federation does not prohibit the plaintiff from changing the subject or basis of the claim, or increasing the amount of claims, but the commission of these actions is an obstacle to considering the case in absentia proceedings. If a change in the claims was made by the plaintiff before the start of the court session or in the preparatory part of the court session, this is an obstacle to moving on to consideration of the case in absentia proceedings. The hearing of the case is postponed until the consideration of the case on the merits begins.

If a change in the claims is made by the plaintiff after a ruling has been made to consider the case in absentia proceedings, the trial of the case is postponed after the transition to its consideration according to the rules of absentee proceedings, the defendant is notified of the new claims and of a new court hearing in which the question of considering the case according to general rules of claim proceedings or according to the rules of absentee proceedings is permitted depending on the appearance of the defendant.

How to overturn a court decision

The special procedure for cancellation at the initiative of the defendant is established by Art. 236 and 237 Code of Civil Procedure of the Russian Federation. After receiving a copy of it by mail, the defendant can file an application to cancel the judicial act adopted in absentia.

The application is submitted in writing to the court that made the default decision. It must indicate the grounds that give the defendant the right to cancellation in a simplified manner, accompanied by documents confirming the existence of relevant circumstances.

An application to cancel a default judgment can only be submitted once. If the judicial act is canceled and the defendant fails to appear at the hearing again, the new judicial act will not be in absentia (Article 243 of the Code of Civil Procedure of the Russian Federation). This does not deprive the defendant of the right to appeal in the future.

Grounds for cancellation

A court decision in absentia may be canceled if:

• The defendant's failure to appear at the court hearing was due to valid reasons;
• The defendant could not promptly inform the court about his failure to appear and ask for a postponement of the hearing;
• These circumstances are confirmed by the evidence provided to the court;
• The circumstances and evidence that the defendant wanted (but was unable due to his absence) to present could have influenced the court’s conclusions in the case.

There is no single list of valid reasons, and the court will decide on the validity of the application in each specific case. Typically, valid reasons include: serious illness, helpless condition, and other similar circumstances that deprived the defendant of the opportunity to appeal to the court in a timely manner.

How to write an application to cancel a default judgment

The requirements for this document are defined in Article 237 of the Code of Civil Procedure of the Russian Federation. An application to cancel a default judgment consists of:

• The introductory part, which indicates: the name of the court that made the decision in absentia, the case number, data of the plaintiff, defendant and other participants in the process;
• The main part, which should describe the grounds for cancellation;
• The pleading part, which indicates the request to cancel the judicial act;
• Attachments containing documents confirming the contents of the application.

The application must be addressed to the court that made the default judgment.

Content

When drawing up an application to cancel a default judgment, special attention must be paid to its main content, which provides valid reasons for the defendant to miss the court hearing.

Olga Smirnova

Civil lawyer, Master of Laws

An important part of the document is the rationale for why the defendant’s personal participation in the process could influence the act adopted by the court. Simply asking for a cancellation will not be enough. It is necessary to convincingly prove that the defendant wants to provide additional arguments to the court. Their receipt should convince the court that the decision on the merits needs to be changed.

This may be additional evidence in the case, a clarified legal position of the defendant, an indication of the need to order a forensic examination or call witnesses, etc.

From judicial practice: the court made a decision in absentia on a bank’s claim against a citizen for early collection of loan debt. The defendant decided to cancel the court's default judgment on his loan and filed a corresponding application. In support of his claims, he referred to the fact that the loan debt had in fact been repaid. However, the applicant did not provide any evidence of this. On this basis, the court refused to cancel the default judgment.

Attached documents

The documents attached to the application to cancel the default judgment are divided into several types:

• Documents confirming the validity of the defendant’s reasons for missing the court hearing;
• Documents – evidence on the main case, which should change the court’s conclusions on it;
• Copies of the application according to the number of persons participating in the case to be sent to them;
• A copy of the representative's power of attorney, if the application is signed under a power of attorney.

State duty

An application to cancel a default judgment is not subject to state duty (clause 3 of Article 248 of the Code of Civil Procedure of the Russian Federation).

Why is a default judgment dangerous?

It would seem, what negative consequences can a court decision in absentia have? Let's try to figure it out. It is one thing if the defendant was unable to attend the trial and agrees with the verdict. It’s another matter when a situation arises when bailiffs come to the defendant and threaten to take away personal property. Moreover, the reason for the “unpleasant” visit was a court decision made in absentia at a meeting that took place, of which the defendant was not aware. He did not receive any summons or telegrams. Was not notified of the court's default judgment and did not receive a copy of this decision.

Very often banks abuse this by taking the debtor to court and trying to collect the loan debt from him without the client’s knowledge. What to do in such a situation? Is it possible to challenge or cancel a default judgment? The most effective and competent step in this difficult situation is a timely contact with a qualified lawyer who will quickly and with a guarantee close to 100% resolve even the most complex issue to the benefit of the client. If this is not possible, you need to follow the procedure given in this article.

Deadlines for appeal

A copy of the adopted default judgment must be sent to the defendant within 3 days after its adoption. Sending must be made with a return receipt, which will establish the date of actual service of the document on the defendant.

The defendant may file an application to cancel the default judgment within 7 days from the date of receipt of its copy.

If an application is submitted, but the cancellation of the decision is refused, the defendant retains the right to file an appeal in the general manner within a month from the date of refusal to review the decision in absentia (clause 2 of Article 237 of the Code of Civil Procedure of the Russian Federation).

What to do if you miss a deadline

Despite the fixed deadline for appeal from the moment a copy of the decision is delivered (and not sent) to the defendant, this deadline may be missed for objective reasons. In this case, you can ask for its restoration by filing an additional petition for this.

The restoration of the period is carried out in accordance with the requirements of Article 112 of the Code of Civil Procedure of the Russian Federation. This issue is considered in a court hearing by the court that made the decision. The court hears the opinions of the participants in the process and makes a ruling:

• On the restoration of the missed deadline (and in this case, the issue of canceling the default judgment will be further considered); or
• On refusal to restore the term.

The deadline for filing an application to cancel a default judgment will be restored if the reasons for missing it were valid - for example, serious illness, helpless condition or other similar circumstances due to which the defendant was unable to timely submit an application to cancel the court decision.

Olga Smirnova

Civil lawyer, Master of Laws

The deadline will not be restored if 1 month is missed from the date of delivery of the copy of the decision provided for the appeal (Review of the judicial practice of the Supreme Court of the Russian Federation No. 2 (2015), issue No. 14). In this case, the defendant must file an appeal against the default judgment to have it overturned, along with a petition to restore the missed deadline for the appeal.

Attention!

The moment the decision enters into legal force is determined uniformly for decisions of all courts of general jurisdiction. The decision comes into force upon the expiration of the period for appeal, if it has not been appealed. The period for appealing a court decision on appeal, as a general rule, is one month from the date of the court decision in its final form, i.e. motivated decision. The civil procedural law may establish exceptions in the form of reduced deadlines for filing appeals and filing court decisions in certain categories of cases.

When filing an appeal against a court decision, it comes into force after consideration of this complaint, unless the appealed decision of the judge is cancelled. In the event that a court decision is canceled or changed by an appeal ruling and a new decision is made, it enters into legal force immediately.

The court decision is executed after it enters into legal force.

At the same time, there are cases when the decision of the court of first instance is subject to immediate execution.

The court is obliged to enforce the decision immediately:

- on the collection of maintenance funds in the form of alimony payments;

— payment of wages to the employee;

- reinstatement at work;

— inclusion of a citizen of the Russian Federation in the list of voters, referendum participants.

The court also has the right to apply the court decision to immediate execution if a party (claimant) files an application indicating the need to apply the court decision to immediate execution. In this case, the application must indicate the circumstances under which a delay in the execution of the decision may lead to significant damage to the claimant or execution may be impossible.

In practice, quite often questions arise related to the execution of a court decision on reinstatement at work.

The basis for starting the procedure for reinstating an employee at work is a court decision.

Since decisions on reinstatement at work are subject to immediate execution, before the court decision enters into legal force, the court issues a writ of execution to the recoverer. In this case, the employer is not deprived of the right to appeal this decision before it enters into legal force.

If an appeal is filed, the court decision will enter into legal force after its consideration by the court, unless the appealed decision is cancelled. In any case, the employer is obliged to first reinstate the employee and then appeal the court decision.

The employer can obtain a writ of execution (court decision) from the employee himself or from bailiffs.

In this case, the employer is given the right to first execute the court decision voluntarily. Otherwise it will have to be executed forcibly.

The requirement for reinstatement at work is considered fulfilled from the moment when two actions are carried out: the reinstated employee began to perform his previous job duties and the order to dismiss him was cancelled.

Thus, the employee must be reinstated at work on the next working day after the court makes the relevant decision, that is, in fact, before the court decision comes into force. And this rule must be observed regardless of whether the employer intends to appeal this court decision or not.

Sample application for cancellation of a court decision in absentia

In XXX Federal District Court XXX

Applicant (respondent): full name, address, telephone

Plaintiff: full name, address, telephone

Other persons participating in the case _____

Case No. ____.

Application for cancellation of a court decision in absentia

____20ХХ ХХХХ at a court hearing, the federal district court issued a decision in absentia in case No. XXXX on the claim of Full Name against Full Name about XXXX.

The defendant was not present at the said court hearing for the following reasons XXXXX. According to the defendant, these reasons are valid, as confirmed by _______. The defendant could not promptly inform the court about the presence of these reasons because ______, which is confirmed by _____.

The issuance of the said default judgment violated the defendant’s right to judicial protection, since the defendant was deprived of the opportunity to present to the court the following arguments and evidence _______, which is confirmed by _______. According to the defendant, these circumstances may affect the court's conclusions and the content of the decision in the case.

Based on the above and in accordance with Art. 237 – 238 Code of Civil Procedure of the Russian Federation, PLEASE

1. Cancel the court's default decision dated ____20__ in case No. ____ and resume consideration of the case on the merits.

Applications:

1. Documents confirming the stated circumstances.
2. Copies of the application for persons participating in the case.

Date, signature.

The procedure for considering an application to cancel a default judgment

After receiving the application, the court considers it at a meeting, calling other participants in the process. If they do not appear, the issue will still be considered on its merits. At the same time, the issue of restoring the procedural deadline for filing an application may be considered, if necessary.

At the request of the defendant, the court may suspend the execution of the judgment if it has already begun.

The period for consideration of the application is 10 days after its receipt by the court (Article 240 of the Code of Civil Procedure of the Russian Federation). Based on the results of the consideration, the court makes one of the following decisions:

• On the cancellation of a default judgment with the resumption of consideration of the case; or
• Refusal to satisfy the application.

Procedure for absentee proceedings

A court hearing in absentia proceedings is no different from a regular hearing. When deciding whether to consider a case in the absence of the defendant, the court clarifies the possibility of a trial in absentia and explains the procedure for proceedings in absentia. The plaintiff is explained the procedure for appealing a decision in absentia and its entry into legal force.

If the plaintiff does not have any objections regarding the trial in absentia, a ruling is made to consider the case in absentia. After this, the court hearing is held according to general rules: explanations are heard, witnesses are questioned, evidence is examined, and debates are held. Based on the results of the consideration of the case, the court makes a decision in absentia.

Refusal to cancel a default judgment

The court will refuse to satisfy the application if:

• The defendant did not confirm the validity of the reasons for missing the meeting and the fact that he was unable to inform the court about it on time; or
• No evidence was provided that the defendant's participation in the case could have any impact on its outcome.

In this case, the default judgment remains unchanged. However, the defendant can file an appeal against him in the general manner, like any other participant in the process.

Grounds for absentee proceedings

The court has the right to consider the case in absentia and make a decision in absentia if the defendant does not appear in court. In this case, the defendant must be notified of the court hearing, there must be no valid reasons for the defendant’s failure to appear in court, or he has not reported these reasons; and the defendant did not file a petition with the court to consider the case in his absence.

To make a default judgment, the consent of the plaintiff is required. The plaintiff can do this by filing an application for consideration of the case in absentia or express his opinion orally during the court hearing. If the plaintiff fails to appear, the court may consider the case in absentia and make a decision in absentia in the absence of a written objection to this procedure.

It will be impossible to consider the case in absentia if the plaintiff, at this court hearing, submits an application to amend the claim and increase the claims. If several defendants are involved in the case, their total failure to appear is mandatory for absentee proceedings.

Appeal against a default decision

The following have the right to file an appeal against a court decision in absentia:

• The defendant who previously filed an application to cancel the default judgment and received a refusal (clause 2 of Article 237 of the Code of Civil Procedure of the Russian Federation);
• Other participants in the process;
• Persons who were not involved in the case, but whose rights and obligations are affected by the decision (clause 2 of Article 237 of the Code of Civil Procedure of the Russian Federation).

An appeal is filed according to the general rules of the Code of Civil Procedure of the Russian Federation within 1 month after:

• Expiration of the deadline for filing an application to cancel the default judgment; or
• If the application was submitted, after its refusal.

The appeal is submitted in writing to the appellate court through the court that made the decision (from a practical point of view, this means that the appellate court must be indicated in the head of the document, but the documents must be sent to the court of first instance).