The defendant may file a simplified application to set aside the default judgment. True, in a fairly short period of time, missing which you will have to go to court through an appeal procedure.
The Code of Civil Procedure of the Russian Federation contains requirements for the content of an application to cancel a default judgment, the procedure for filing and consideration by the court. We have provided general recommendations below. You can check the details with the site’s on-duty lawyer.
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Application for cancellation of default judgment
Example of an application to cancel a court decision in absentia
To the Zasviyazhsky District Court of Ulyanovsk, Ulyanovsk Region
Plaintiff: Blue Bird LLC, address: 432002, Ulyanovsk region, Ulyanovsk, pl. Kommunisticheskaya, 51, of. 209,
TIN 2749895598654
Defendant: Polishchuk Makar Semenovich,
Born 10/14/1987, place of birth: Saratov,
place of work: Blue Bird LLC, address: 432028, Ulyanovsk region, Ulyanovsk, st. Pobeda, 14, TIN 879584156662,
tel. 8765416354685 Third party: State Labor Inspectorate of the Ulyanovsk Region address: 432027, Ulyanovsk Region, Ulyanovsk, st. Mira, 3
within the framework of case No. 2-157/2022 for the recovery of material damage
Application for cancellation of a court decision in absentia
By default, the Zasviyazhsky District Court of Ulyanovsk, Ulyanovsk Region, on July 25, 2022, satisfied the demands of Blue Bird LLC against Polishchuk Makar Stepanovich for the recovery of material damage caused to the employer in full. The defendant received a decision in absentia on August 20, 2022, when he went to court in person (after receiving a court notice on August 10, 2022).
I believe that the court's decision should be overturned on the following grounds. I did not know about the date and time of court hearings to consider the claim. Since in the period from May 20, 2022 to August 10, 2022, he was outside the Russian Federation. Namely, in Kazakhstan, where my mother lives. I assisted her in connection with the operation; she needed care. These circumstances are confirmed by train tickets, a certificate from a medical institution, and a copy of a medical report.
I did not receive any subpoenas, because... I live alone. And no one could pick them up from the post office. I applied for a copy of the default decision on August 10, 2022, it was handed to me on August 15, 2022, it took me several days to collect documents.
In addition, the decision is subject to cancellation due to violation of substantive law. The plaintiff did not submit documents regarding the transfer to another position in the case file. Full financial liability agreements do not apply to employees in my position. For this reason, the court's default judgment is subject to cancellation.
Based on the above, guided by art. 237-243 Code of Civil Procedure of the Russian Federation,
Ask:
- To cancel the default decision of the Zasviyazhsky District Court of Ulyanovsk, Ulyanovsk Region on July 25, 2022 in civil case No. 2-157/2022 on the recovery of funds from Makar Stepanovich Polishchuk in favor of Blue Bird LLC in the amount of 120,000 rubles. as compensation for material damage.
- Resume proceedings in civil case No. 2-157/2022 on the merits.
- Add additional evidence to the civil case materials.
Application:
- Medical report of Avdeeva A.A. (copy)
- Copy of the applicant's birth certificate
- Certificate from a medical institution regarding Avdeeva A.A.
- Electronic train tickets for departure to Kazakhstan
- Extract from the work book
- Copy of transfer notice
- Copies of the application and documents for the participants in the case
08/22/2022 Polishchuk M.S.
Deadlines for filing an application to cancel a court decision in absentia
A court decision in absentia is made in cases where the defendant is sent a court notice of the date and place of the court hearing. But he did not appear and did not file a petition to consider the case in his absence (by analogy with a petition to consider the case in the absence of the plaintiff). The court will definitely check with the plaintiff whether he agrees to make such a decision. And the whole point is precisely in the ways of canceling such a decision.
According to the general rules, the defendant has the right to file an application to cancel the default judgment within 7 working days (Article 107 of the Code of Civil Procedure of the Russian Federation) from the date of its receipt. The default judgment is sent to the defendant within 3 days from the date of issuance. But it is the date of receipt that has legal significance; it can be tracked using the postal service.
But it's not that simple. In the Review of the Supreme Court of the Russian Federation (approved by the Presidium of the Supreme Court of the Russian Federation on June 26, 2015), the court gave the following interpretation of the deadlines:
- a copy of the decision was handed to the defendant after the expiration of the 7-day period for its cancellation, but the one-month period for an appeal has not expired. The court may accept an application to cancel a default judgment subject to filing an application to restore the deadline.
- a copy of the decision was served after the expiration of the period for appeal. The court will not accept an application to cancel a default judgment, but may restore the deadline for an appeal.
Let us remind you that we are talking about a situation where there is no reliable information about the delivery of a default judgment to the defendant.
Specifics of consideration of the case in absentia
The court notifies all participants in the process of the date and place of consideration of the claim. Each of them is obliged to be present at the meeting in order to promptly present evidence, make motions and contribute to establishing the truth.
After the start of the hearing, the judge makes sure that the parties or their representatives are present. The court has the right to make a ruling on absentee proceedings if the following conditions are met:
- the applicant does not object to this procedure for resolving the case (the plaintiff may demand a survey of the opponent to establish certain facts);
- the defendant did not apply for the case to be considered without him;
- the court did not receive information about the reasons for the non-appearance of the parties to the dispute;
- there is documentary evidence that the defendant received information about the place and time of the meeting.
In practice, courts presume the fact of proper notification of the defendant. Government bodies have agreements with the postal service that provide for the delivery of subpoenas and other procedural documents against signature. In fact, postmen do not try to catch the participants in the trial and deliver notices to their relatives or leave papers in the mailbox.
What does an application for cancellation of a default judgment contain, how to submit it
Thus, the defendant established that the 7-day period for filing an application for cancellation had not expired. Then compose the document according to the above example and the following algorithm:
- In the header of the application, indicate the name of the court that issued the default judgment
- information about the person submitting the application - procedural status, full name, address, telephone number, other participants in the case
- valid reasons for the defendant’s failure to appear at the court hearing and at the same time the inability to inform the court about this - with evidence
- circumstances and list of evidence that could influence the court's decision in the case
- request to cancel the default judgment
- as attachments, use all available evidence in the case, and also attach copies of the application for cancellation in the number of participants in the case
- signature and date.
If an application to cancel a default judgment is filed by a representative, the power of attorney for representation of interests in court must indicate such powers. There is no state fee.
Please note: the applicant also provides to the court copies of the application and documents according to the number of participants in the case. The court itself will send these copies to the participants. In order for them to decide on their legal position.
Deadlines for appeal
Article 237 of the Code of Civil Procedure of the Russian Federation establishes a limited period during which an application for the annulment of a court decision in a civil case can be filed.
The verdict must be sent to the defendant for review. The addressee will have 7 days to prepare documents and write to the court with a request to cancel the verdict. The period is counted from the moment the document is received, which can occur several months after sending.
If a citizen does not exercise his right, a 30-day report begins. During this period, the interested party has the right to appeal. The defendant will be able to cancel a court decision that has entered into legal force only if there are certain grounds.
Consideration of an application to cancel a default judgment
When deciding whether to accept an application, the court examines compliance with the deadlines. If everything is in order, the document is considered in court. Within 10 working days from the date of receipt of the application to the court.
The participants in the case who appear can express their opinion on the arguments of the application and object to its granting. The arguments usually include inadmissibility of evidence, missed deadline for reversing the decision, evidence of knowledge of the court hearing (for example, official correspondence).
Based on the results of the consideration, a court ruling is made, by which the default judgment is either canceled or the application is refused. The applicant can file a private complaint against the refusal, and then (or in parallel) file an appeal.
The court will make a positive decision if it considers the reasons for the defendant’s failure to appear in court and the inability to provide such information to the court to be valid. And also if there is new evidence that will affect the content of the final decision.
Satisfying the application to cancel the default judgment, the court resumes the proceedings and the case is considered from the very beginning, taking into account the new evidence and circumstances presented.
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).
