The procedure for filing a petition to restore the missed statute of limitations in civil proceedings

If the court receives an application to apply the statute of limitations, most likely the court will refuse to satisfy the claims. Of course, if the deadline for going to court has actually passed.

According to general rules, the plaintiff has the right to demand protection or restoration of his rights within 3 years from the moment the relevant grounds are identified. The period has been reduced to protect labor rights (for more details, an application for restoration of the period in labor disputes), for claims to invalidate a transaction, etc. Only the defendant can refer to missing the statute of limitations.

It is not difficult to prepare an application for the application of the statute of limitations on your own. And, as a rule, no additional documents are required to be submitted to the court. General recommendations for drafting the document are posted below. The nuances can be discussed with the site’s on-duty lawyer.

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Application for application of the statute of limitations

When to file an application for the application of the statute of limitations

Issues of compliance by the plaintiff with the statute of limitations must be examined at the preliminary court hearing. Therefore, it is best to prepare such a statement immediately after receiving a copy of the statement of claim. You can make a request to recognize the statute of limitations as expired during the preparation of a civil case. But the court may give the plaintiff time to apply to restore the statute of limitations.

It is the defendant’s right to file a complaint about missing a deadline. The court is not obliged to explain whether the statute of limitations has passed. Therefore, the defendant must know the rules of substantive law governing the disputed legal relationship. And understand the procedure for calculating deadlines (chapters 11-12 of the Code of Civil Procedure of the Russian Federation).

Restore the statute of limitations in arbitration cases: prove and stop

Reasons for missing deadlines

Claiming a statute of limitations is an effective way for a defendant to win a case. If the plaintiff was really late in presenting his claims, then this would be an independent basis for the court to refuse to satisfy the claim. Even if the applicant’s claims are justified.

Typically, statutes of limitations are most often missed either due to the significant volume of paperwork for the company and its lawyers, or due to the reluctance of the company’s management to collect debts from the counterparty for a long time, says a lawyer in the arbitration practice of VEGAS LEX VEGAS LEX Federal Rating. PPP group/Infrastructure projects group Land law/Commercial real estate/Construction group Antitrust law (including disputes) group Arbitration proceedings (major disputes - high market) group Tax consulting and disputes (Tax consulting) group Natural resources/Energy group Insurance law group Environmental law Group Corporate Law/Mergers and Acquisitions Group Tax Consulting and Disputes (Tax Disputes) Group Bankruptcy (including disputes) 2nd place By revenue 3rd place By revenue per lawyer (more than 30 lawyers) 8th place By number of lawyers Company profile Svetlana Vasilyeva. The second reason is when the director of the creditor plans to maintain partnership relations with the debtor and resolve all disagreements out of court.

As a general rule, the statute of limitations in most cases is three years. But for a number of controversial relationships this period may be shorter. Thus, the co-founders of an LLC often miss the special two-month period during which they can challenge the decisions of the general meeting of the company, Vasiliev gives an example. Lateness in such cases leads to refusal of the claim (case No. A60-27896/2019). Insurers should also be careful when they try to recover money from the true culprit of the loss of insured cargo. While the parties to the agreement for the auto delivery of goods will figure out who is to blame for its disappearance, more than one year may pass. And for such disputes the statute of limitations is 12 months (case No. A40-59021/2018). In such situations, the restoration of the term largely depends on the individual judge, assures senior lawyer Plotnikov and Partners Plotnikov and Partners Regional Rating. group Bankruptcy (including disputes) Company profile Mikhail Novoselov. According to him, some judges may immediately reject the claim because the deadline has been missed, while others, if they identify a violated right, will restore it.

Another common mistake is to incorrectly calculate the term in the contract, which provides for payment by periodic payments tied to a specific calendar date (cases No. A40-279818/2018 and No. A40-231561/2019).

Many companies and their in-house lawyers do not take into account that in such obligations the statute of limitations runs in relation to each overdue payment separately, warns Roman Romanov from S&K Vertical S&K Vertical Federal Rating. group Family and inheritance law group Private wealth management group Arbitration proceedings (major disputes - high market) group Bankruptcy (including disputes) group Corporate law/Mergers and acquisitions 18th place By revenue 25-27th place By number of lawyers 6th place By revenue per lawyer (more than 30 lawyers ): “Despite significant delinquency under the aircraft lease agreement, the lender can expect to collect lease payments only for the last three years before filing a claim.”

An equally common problem is that the disputant incorrectly determines the moment when the statute of limitations began to run. This problem is often identified not only among clients themselves, but also among fellow lawyers, notes Egor Belov, leading lawyer at LEXFORT LEXFORT Regional Rating. 23-26th place by number of lawyers.

In some cases, the issue of missing a deadline arises already during the consideration of the case, says Pepelyaev Group partner Pepelyaev Group Federal Rating. group Foreign trade activities/Customs law and currency regulation group Tax consulting and disputes (Tax consulting) group Tax consulting and disputes (Tax disputes) group Labor and migration law (including disputes) group Digital economy group Antimonopoly law (including disputes) group Land law/Commercial real estate/Construction group Intellectual property (including disputes) group Compliance group Natural resources/Energy group Pharmaceuticals and healthcare group Environmental law group Bankruptcy (including disputes) group Corporate law/Mergers and acquisitions group Family and inheritance law TMT group (telecommunications, media and technology ) group Financial/Banking Law group Arbitration proceedings (major disputes - high market) group Dispute resolution in courts of general jurisdiction Yuri Vorobyov. The plaintiff makes a claim for the return of unjust enrichment, and in the process it turns out that the money was transferred on the basis of an agreement. In such a situation, the applicant’s arguments will have to be considered by the court along with arguments about the invalidity of the contract, and for this category of cases a shortened limitation period has been established (one year).

When can a legal entity restore the deadline?

According to the law, the limitation period can be restored only in exceptional cases that are “inextricably linked with the personality of the applicant” (Article 205 of the Civil Code). Serious illnesses fall under this formulation. EMPP partner EMPP Federal rating. group Family and inheritance law group Criminal law group Arbitration proceedings (medium and small disputes - mid market) group Corporate law/Mergers and acquisitions TMT group (telecommunications, media and technology) 20th place By revenue per lawyer (less than 30 lawyers) 49th place By revenue Profile company Anna Artamonova explains that we are most often talking about situations that “really prevent a citizen from performing some actions.” For example, he is in intensive care. This basis does not apply to economic disputes. No illness of the general director, much less a mistake by a lawyer, will allow an appeal to restore the deadlines, warns Yana Chernobel, head of litigation projects at Pavel Khlustov and Partners.

Moreover, the Supreme Court separately clarified that the statute of limitations missed by a legal entity or individual entrepreneur on commercial claims cannot be restored (clause 12 of the Resolution of the Plenum of the Supreme Court of September 29, 2015 No. 43 “On some issues related to the application of the norms of the Civil Code” ).

True, there are exceptions to this general rule. There is still a provision that allows a company to restore the period for appealing a decision of a meeting of creditors in bankruptcy (clause 8 of the Resolution of the Plenum of the Supreme Arbitration Court of July 23, 2009 No. 60). This rule will apply to those firms that were not properly notified of the meeting. In addition, the deadline for filing an application for subsidiary liability for the arbitration manager or creditors may be extended (Sunday Resolution No. 53 of December 21, 2021). This option is available for companies that were unable to go to court in a timely manner for reasons beyond their control. For example, they did not know before about the person’s possible guilt in the bankruptcy of the company.

Prove that you learned about the violation late

The main problem of restoring deadlines is related to determining the moment from which the deadline should be calculated, says Vorobiev. Therefore, you need to rely on those actions that will allow the plaintiff to obtain judicial protection even in a situation where the statute of limitations seems to have expired, advises senior partner of Mazka, Metelkin, Bushmin & Partners Mazka, Metelkin, Bushmin & Partners Regional rating. Group Land Law/Commercial Real Estate/Construction Group Dispute Resolution in Courts of General Jurisdiction Group Arbitration Proceedings Vitaly Bushmin. One option is to interrupt the period and obtain recognition of the debt from the counterparty. From this moment the limitation period begins to run again. At the same time, it is important that the opponent confirms the existence of the debt and signs reconciliation acts for the disputed agreement, Bushmin notes.

When the limitation period suspends the running

1) If the claim cannot be filed due to force majeure circumstances (natural disasters).

2) If one of the parties is in the armed forces of a country under martial law.

3) Due to the moratorium (deferment of fulfillment of obligations) established by law.

4) Due to the suspension of the law (or other regulatory act) regulating controversial legal relations.

5) If the parties have entered into an agreement to conduct mediation.

6) If a claim filed in criminal proceedings was not considered when sentencing.

Another option is to convince the court that the plaintiff learned late about the violation of his rights or the proper defendant and could not have received this information earlier. In such a situation, evidence such as correspondence with counterparties, messages in the media and the Internet, judicial acts establishing certain facts will be useful, Vasilyeva lists. Thus, in case No. A46-22465/2017, the co-founders tried to challenge transactions that the director of their company made seven years ago.

The defendant argued that the applicants had long missed all the deadlines, as they should have learned about the disputed contracts at the annual general meetings, which the company holds regularly. But the plaintiffs explained that they became aware of a number of transactions only at the last meeting, and before that the head of the company hid information about the transactions from the co-founders. The contracts did not go through the corporate approval process. The court agreed with the applicants' arguments and allowed them to appeal the disputed agreements, pointing out the director's dishonest behavior.

At the same time, Belov notes that it is possible to restore the period only within the objective limitation period, which is 10 years (case No. A07-26001/2016).

Tricks of opponents

The dishonest action of an opponent, which led to the statute of limitations being missed, is the circumstance that the courts pay most attention to, says Vorobiev. The plaintiff first used such an argument back in 2011, and the Presidium of the Supreme Arbitration Court declared it admissible (case No. A54-5153/2008/S16Yu). Four years ago, this basis was confirmed and consolidated by the Plenum of the Supreme Court (clause 61 of the Resolution No. 25 of June 23, 2015). Despite the existence of such clarifications, courts rarely apply them in practice, Romanov states.

But there are still examples of such cases - in the bankruptcy dispute of MainFood LLC (No. A40-289180/19-19-2264), it turned out that the former head of the company acted in bad faith and deliberately did not make demands on a number of counterparties. Because of this, the company went bankrupt. The listed circumstances were established by the arbitration manager, therefore the limitation period should be calculated from the moment of approval of the manager at MainFood LLC, the court decided.

The counterparty may hide information and mislead about the circumstances of the transaction and its actual conditions. Because of this, the plaintiff may find out that his right has been violated after the statute of limitations has expired. An opponent can also falsify dates on documents, which will increase the statute of limitations. In our practice, we have encountered a situation where the plaintiff provided a letter that was allegedly sent before the expiration date, although in fact the documents were sent later.

Evgenia Bondarenko, managing partner of the law firm Yuskonsalt Yuskonsalt Regional rating. group Dispute resolution in courts of general jurisdiction group Arbitration proceedings 27-31st place By number of lawyers Company profile

Abuses of law also occur in situations where a short limitation period is established. According to transportation agreements, it is one year, during which the parties can try to come to an agreement for 12 months, but in the end the carrier will not be paid anything, Belov gives an example. According to him, in order to protect itself from such situations, the transport company needs to retain evidence of agreements with the counterparty: “You don’t need to discuss everything exclusively over the phone.”

The situation is worse when the company insures the cargo being transported, but for the entire year (and sometimes more) the insurance company decides whether to pay insurance compensation. If the insurance company refuses, then the reason in the form of an investigation by the insurer will not be valid in the application for missing the 12-month limitation period (case No. A46-10197/2018).

Egor Belov, leading lawyer of LEXFORT LEXFORT Regional rating. 23-26th place by number of lawyers

Sometimes plaintiffs even falsify evidence in order to restore the missed deadline. They present fake letters acknowledging debtors’ obligations or reconciliation statements confirming debt. In such situations, defendants need to react and demand that the court verify these documents by expert means, Chernobel recommends. In addition, it is always important to pay attention to the signatory of the “letters of appreciation,” says the lawyer: “If confirmation of the debt did not come from an authorized person, but from an ordinary employee of the company in the absence of a power of attorney, then there is no force and no legal consequences for calculating the statute of limitations there will be no such recognition.”

• Alexey Malakhovsky

• Arbitration process

How to draw up an application for the application of the statute of limitations

An application for the application of the limitation period is drawn up in free form. It indicates the name of the court that accepted the claim for proceedings, the number of the civil case and its parties, the essence of the plaintiff’s claims. The defendant has the right not to give any arguments on the merits of the case, only to justify:

• when the obligation arose;
• when the plaintiff learned or should have known about the violation of rights;
• how the limitation period is calculated;
• when the plaintiff is statute of limitations.

The application must include a request to apply the statute of limitations and refuse to satisfy the plaintiff’s claims. Refusal is the only legal consequence of the application of the statute of limitations. The court does not have the right to refuse to accept the statement of claim or return it. Only make a decision to refuse to satisfy the requirements, without examining the case on its merits.

An application to apply the limitation period is submitted only once; if the court refuses, re-filing is not allowed.

Duration of the term

Depending on the category of proceedings, the time within which infringement of rights can be claimed varies. According to the Civil Code (Article 196), the total period is equal to 3 years. For other situations, you should refer to the relevant regulations.

For other labor disputes, the allotted time to challenge the verdict is 3 months.

Consequences and methods of enforcement in case of refusal to pay fees

The current legislation does not have rules regulating the legal consequences of the formation of arrears in contributions to the Capital Repair Fund. However, a study of the provisions of the Russian Housing Code allows us to analyze possible prospects for the debtor.

The statute of limitations for major repairs is 36 months from the date of the offense.

Penalty for violation of payment deadlines

The main factor is the lack of money in the account to carry out specific work. At the same time, it is impossible to implement measures for the reconstruction of the apartment building. Article No. 170 of the Housing Code of Russia states that the municipality has the right to decide on the formation of a fund, the personal account of which will be assigned to the regional operator.

Two ways to form a capital repair fund.

With a partial replenishment of the balance, which is under the control of the Homeowners Association, there is theoretically no reason to charge money or hold anyone accountable. It is noteworthy that the regional operator or the management of the HOA will not initiate legal proceedings if arrears arise over a period of 2-3 months. or, when the owner did not pay a fee of 40 rubles.

However, the penalty will be accrued after a notice of debt is sent to the apartment owner. According to the current Article No. 155 of the Housing Code of Russia, such citizens are subject to rules obliging them to repay debts and penalties.

Other measures

In 2021, for failure to fulfill obligations to pay receipts for major repairs, the creditor has the right to initiate legal proceedings.

This applies to owners of apartments and non-residential premises:

1. An order from the judicial authority is sent to the defaulter with a requirement to compensate for the amount of arrears in accordance with the request of the claimant - Chapter No. 11 of the Code of Civil Procedure of Russia.
2. The decision of the supreme authority determines the initiation of enforcement proceedings - Ch. No. 16 of the Civil Procedure Code of the Russian Federation.
3. The obligation to pay off debts, as well as pay off penalties - Article No. 155 of the Housing Code of Russia. If the personal account is not replenished within a certain period, then the amount of arrears increases every 24 hours by the current interest rate.
4. Penalties are additional measures of influence if a citizen maliciously evades fulfillment of obligations.
5. Seizure of items of property - Federal Law No. 229, Article No. 64 (with the latest amendments and additions of 2021). It is allowed during enforcement actions, subject to the involvement of bailiffs in the procedure, to seize property after assessment. Luxury items are put up for auction - based on the results of the auction, the proceeds go to pay off the debt, the remainder is returned to the owner.
6. Imposition of encumbrances or seizure of property is another option for collection, in which the property is transferred in favor of the regional operator until the defaulter has fully repaid the arrears.
7. Seizure or freezing of bank accounts - temporary blocking of personal accounts, including withholding money to cover debt.
8. Imposing a ban on movement within the country or abroad is the authority of FSSP employees to impose a temporary restriction, provided that the amount of debt is more than 30,000 rubles.

Proceedings with the participation of bailiffs are initiated by the Criminal Code or the claimant, in accordance with the submitted petition - Federal Law No. 229, Article No. 30.

If a person cannot pay bills for major repairs, then FSSP employees, as part of the execution of a court order, do not have the right to take measures to evict a citizen from an apartment. However, the presence of debt to the Fund may have a negative impact when concluding a purchase and sale transaction, since for this it is necessary to obtain a certificate from the BTI.

Who can file such a petition in court?

Only an interested person or a representative of one can submit a statement that the plaintiff has missed the statute of limitations. Accordingly, the applicant is always a defendant in one or another civil (arbitration) case.

Such a petition requires careful study of the provisions of the law, since any violation of the procedure for filing an application will lead to the petition being returned or rejected, which will subsequently prevent the application from being submitted again.

Watch the video. Statute of limitations. What it is?

In what cases is the limitation period not established?

Article 208 of the Civil Code defines the requirements to which the validity period of a statement of claim to the court does not apply. We are talking, in particular, about claims:

• on the protection of non-property rights, for example the right to non-interference in private life;
• to banking organizations regarding the issuance of deposits;
• on compensation for damage to life and health;
• on eliminating violations of the rights of the property owner that are not related to deprivation of possession;
• according to requirements arising from family relations (Article 9 of the Family Code).

What is its purpose

A petition for the application of statutes of limitations in civil and arbitration proceedings is a special form of appeal to the court. The options for such statements are varied and may relate not only to missed periods of limitation.

Speaking about the case under consideration, only a specific list of questions can be resolved:

• drawing the attention of the judicial authority to procedural violations;
• convince the court to satisfy the requirements;
• indicate that a refusal to further consider the case is required.

In this case, you will have to independently present in writing all the arguments in this regard. Practice shows that the court has an ambivalent attitude towards requests received during the proceedings. It is the absence of a strictly regulated form and content of the application that gives rise to a large number of problems when considering it, since errors lead to refusal to consider the application.

To correctly draw up a statement, you need to follow the general rules for forming a statement of claim. This will avoid procedural violations and eliminate the possibility of returning the application. You can also contact lawyers who will independently formulate a petition and send it to the appropriate judicial authority.

Attention! Our qualified lawyers will assist you free of charge and around the clock on any issues. Find out more here.

When to file a petition

You can choose any moment for submitting your petition, from the receipt of the claim to the trial. However, practice shows that indicating a violation of the limitation period should be approached in advance, as soon as the defendant has received a copy of the claim. The request in such a situation will be considered at a preliminary hearing, and if it is granted, the proceedings will be terminated altogether.

Interestingly, each petition, in addition to the court, must also be sent to the plaintiff, but the law does not prohibit filing an application directly during the hearing, which will exclude the plaintiff’s opportunity to fully familiarize himself with the application and protest it. Accordingly, the preliminary hearing is the best time for the defendant to file a motion.

The judge considers the submitted application immediately, directly during the hearing, and makes a procedural decision. If the deadline is recognized as missed, then the judge immediately refuses to satisfy the claim without examining the case materials. When the statute of limitations is found to have expired, the petition will be denied and the case will continue.

How to submit a document

Remember! The petition is submitted to the judicial authority where the claim was sent. You can transfer documents in person by visiting the court office, or send them by registered mail with notification and an enclosed list of documents. In this case, three copies of the petition should be drawn up at once: for the court, for the plaintiff and for the defendant.

If you send the papers by mail, then it is enough to send two copies or confirmation that the petition in question was also sent to the plaintiff, otherwise the procedural procedure for sending the application will not be followed, and this will entail a refusal to accept it.

When applying in person, you must wait until the office puts a date and signature on the applicant’s copy confirming the fact that the documents were accepted. Also, the application in one copy can be submitted to the court directly at the hearing.

Beginning of the limitation period.

According to paragraph 2 of Art. 200 of the Civil Code of the Russian Federation for obligations with a certain period of performance, the limitation period begins at the end of the performance period.

For obligations for which the deadline for fulfillment is not defined or is determined by the moment of demand, the limitation period begins to run from the day the creditor presents a demand for the fulfillment of the obligation, and if the debtor is given a period for fulfilling such a requirement, the calculation of the limitation period begins at the end of the period provided for the fulfillment of this requirements.

The limitation period in any case cannot exceed ten years from the date the obligation arose.

The course of a period defined by a period of time begins the next day after the calendar date or the occurrence of an event that established its beginning (Article 191 of the Civil Code of the Russian Federation).

The period, calculated in years, expires in the corresponding month and day of the last year of the term (clause 1 of Article 192 of the Civil Code of the Russian Federation). If the last day of the period falls on a non-working day, the end of the period is considered to be the next working day following it (Article 193 of the Civil Code of the Russian Federation).

Example 1

Organization “A” provides paid services. In December 2021 it was provided. Payment must be made on December 11, 2017. Organization “B” did not make the payment within the specified period.

The limitation period began to run on December 12, 2017. The expiration of the three-year period will occur on December 12, 2020. However, this date falls on a Saturday, and therefore the expiration date will be the next working day - Monday 12/14/2020.

Within the meaning of paragraph 1 of Art. 200 of the Civil Code of the Russian Federation, the limitation period for a claim arising from a violation by one party of the contract of the condition of payment for goods (work, services) in parts begins in relation to each individual part. The statute of limitations for claims for overdue time payments (interest for the use of borrowed funds, rent, etc.) is calculated separately for each payment (clause 24 of Resolution No. 43).

Example 2

Organization “A” provided RUB 200,000 in December 2021. Payment must be made in two installments of RUB 100,000. 12/11/2017 and 12/18/2017. Organization “B” did not make the payment within the specified time frame.

In this case, the limitation period began for the first part of the debt from December 12, 2017, and for the second – from December 29, 2017.