Instructions: preparing a claim for a refund

If one of the parties to an agreement, contract or agreement violates its terms, then the second partner has the right to request that all identified inconsistencies be eliminated. Such a request must be made in writing. There are only two ways to resolve a dispute:

• through a peace agreement, that is, the parties discuss all grievances and come to a certain compromise;
• through the courts, if an agreement cannot be reached.

Before going to court, send a written claim to the counterparty who violated the terms of the contract. For example, if the supplier delivered a low-quality product or provided a service of inadequate quality, then the organization has the right to demand the money back. We'll tell you more about how to file a claim for a refund.

Why file a claim for a refund?

If the terms of the contract are violated, the organization is obliged to send a corresponding notification to the partner. To do this, you will need to draw up a letter of claim for the return of funds, a sample of which you can download below. If the parties cannot agree, it will be quite difficult to prove in court that the claim procedure was followed.

Please note that compliance with the claim procedure is required if a company requires funds from a counterparty. For example, the return of an advance or payment for goods, work or services, the demand for penalties, penalties, fines, the requirement to pay the costs of eliminating deficiencies, etc.

The main purpose of the document is to notify the business partner of disagreement with the current state of affairs, demand that all identified shortcomings be eliminated and offer to resolve the dispute peacefully, that is, in a pre-trial manner.

Legal basis

The owner of excessively transferred funds has the right to demand their return in the absence of contractual or other obligations to the recipient of the payment (Article 1102 of the Civil Code of the Russian Federation). Moreover, according to the Civil Code of the Russian Federation, the recipient of an erroneous transfer experiences unjust enrichment, so he will also be obliged to compensate interest on the use of other people's funds. Therefore, you have every reason to return the transferred funds as soon as possible. To receive a refund if you have overpaid, you must send a letter.

General rules for document preparation

There is no unified form of template according to which a pre-trial claim for the return of funds (sample, to put it simply) is drawn up. However, when preparing a letter of claim, you must follow the general rules of business correspondence. Let's note the key points:

1. Draw up the document on company letterhead, if available.
2. Compose the letter in two copies: give one to the counterparty, and keep the second for yourself. Remember that on the second copy you should put a mark on delivery to the partner (date of receipt, position and full name of the person who received the document, his signature).
3. Only the manager or a legal representative authorized to carry out such transactions can sign a request for the return of funds. For example, an employee authorized to sign financial documents under a power of attorney.

The document can be sent by mail. In this case, please send by registered mail. Be sure to fill out an inventory of investments. In court, it will be considered confirmation that you have complied with all the rules of the claim procedure.

When is a pre-trial claim for a refund necessary?

Claims are filed after the other party violates monetary or property obligations. Such obligations may be specified:

• in oral agreements (some small transactions can be carried out without drawing up contracts or receipts);
• in written contracts, receipts, agreements (a typical example is a receipt for a loan with a specific repayment period);
• in regulations (for example, under the Law on Consumer Rights or by virtue of Law No. 214-FZ, you can file a claim even if certain obligations are not specified in contracts).

Almost every obligation has specific deadlines for fulfillment. For example, the receipt can indicate a refund of the entire amount before March 1, or a phased refund every month on the 15th. If these deadlines are violated, you can demand settlement of obligations, including filing a claim or lawsuit in court.

Before we talk about the features of filing pre-trial claims, one more important point - is it mandatory or not to draw up and submit this document? No, it is not necessary, unless the parties themselves indicate otherwise in the agreement or receipt. There are only a few disputes in Russian legislation where it is impossible to go to court without a claim. But when concluding an agreement, you can add such a clause yourself if you consider it necessary to exchange claims.

What is the point of filing a claim if it is not necessary? In legal practice, this document makes it possible to:

• officially and in writing to “remind” about the violation of the obligation (there are cases when the debtor actually forgets to return the funds and pays off immediately after receiving the claim);
• calculate penalties (fines, penalties) so that the debtor voluntarily pays in full;
• indicate a new deadline for fulfilling obligations;
• warn about a possible filing of a lawsuit.

Note! The claim filed in consumer protection disputes is of utmost importance. If the seller, developer, or insurance company refuses to pay, misses the deadline for reviewing the claim, or does not respond at all, they may be subject to additional penalties. Its size will be 50% of the principal amount of the debt.

If you correctly draw up and submit a claim for the return of funds, it can be referred to in a claim or in a lawsuit. The judge will certainly appreciate your attempts to resolve the issue amicably, so the defendant’s chance to reduce the amount of the penalty or receive a deferment (installment plan) will be minimal.

Find out more Certificate of no criminal record: how to get it, sample

By receipt

In the case of a loan agreement or receipt, a claim can be filed from the very first day of late payments. If a phased repayment was provided, you can issue a letter of claim for each overdue portion of the debt. If the contract or receipt specified the exact return period, there will be no problems with determining the delay.

Often, loan documents, especially between private individuals, are drawn up without specifying repayment terms. I strongly advise against doing this, even if you are lending money to relatives or friends. If there is no exact repayment amount in the documents, the loan agreements are valid for an indefinite period. In this case, there is a special algorithm of actions:

• you must submit a written request for termination of the contract (receipt), and a reasonable period for returning the money must be at least a month (the debtor can return the money earlier);
• after the period specified in the notice has expired, you can file a claim for a refund or go to court;
• When filing a claim, you need to demand not only the return of money and penalties, but also the termination of the contract.

As a result, the return procedure will be longer than with contracts or receipts that have an exact return period. If there were no written documents for the loan at all, you will have to use other evidence (testimonies of witnesses, audio and video recordings, bank statements about the transfer of money).

To protect consumer rights

According to Law No. 2300-1, you can demand money for low-quality goods when returning quality items if the seller does not have an analogue for a replacement. Naturally, you can demand payment of penalties and interest, which, when protecting consumer rights, is 1% per day of the amount of obligations. Here are the main features for filing a pre-trial claim with a seller or contractor:

• for consideration of claims under Law No. 2300-1, only 20 days are given (in ordinary civil disputes this period is usually 30 days);
• if the seller or contractor refuses to pay, violates the deadline for reviewing the claim, or does not respond at all, an additional fine of 50% can be charged;
• simultaneously with the claim, you can contact Rospotrebnadzor, which will provide additional evidence for the court.

If the seller has already returned part of the money, this point must be indicated in the claim. Penalties and fines are assessed only for unfulfilled obligations. If you find it difficult to determine what and how to recover from a claim, it is better to consult a lawyer.

To an insurance company for compulsory motor liability insurance

Obtaining compulsory motor liability insurance is also subject to the provisions of the law on consumer rights if the policyholder is an individual. A claim under MTPL can be submitted:

• if the insurance company refuses to pay compensation (for example, if the accident is not recognized as an insured event);
• when the amount of payments is underestimated based on the results of the assessment;
• if the deadlines for transferring funds or issuing directions for repairs are violated.

Find out more Cashing out maternity capital

Note! Starting from 2021, changes have been made to the procedure for considering disputes under compulsory motor liability insurance. Now you can go to court only after reviewing the documents by the financial ombudsman. This also applies to claims. If you make a claim but do not receive money, you will still have to go through the Financial Ombudsman before going to court. Read about who the financial ombudsman for compulsory motor liability insurance is and how he considers disputes in our previous material.

In a claim under compulsory motor liability insurance, you cannot demand payment of compensation for moral damage (however, as in other types of disputes). Moral damage is recovered only in court.

To the culprit of the accident

In some cases, damages from an accident can and should be recovered from the culprit. For example, it is necessary to file claims and a lawsuit if the amount under compulsory motor liability insurance was not enough to fully compensate for the damage, or when the participants in the accident did not have a policy. There are no special conditions for filing a pre-trial claim against the person at fault for an accident. The amount of claims can be determined from the report of an independent appraiser, or from the materials of the insurance case.

Pre-trial claim under DDU

There are some peculiarities when collecting funds under an equity participation agreement in construction (DDU). In this case, two important regulations are applied at once - Law No. 214-FZ and Law No. 2300-1. The amount of the penalty from the developer is 1/150 of the refinancing rate for each day of delay. You can submit a claim to the developer under the DDU:

• when collecting a penalty for violating the deadlines for transferring an apartment;
• upon termination of the contract, return of the principal amount under the DDU and penalties;
• when collecting penalties and expenses if the developer did not eliminate the defects of the apartment in a timely manner.

You can read more about filing a claim with the developer and collecting penalties under the DDU in our previous material.

How to write a claim for a refund

The step-by-step instructions for preparing the document are very simple.

Step 1. So, let's start with the header of the pre-trial demand for the return of funds:

1. We indicate the details of the document: date of preparation and outgoing registration number (the claim will have to be registered in the outgoing correspondence journal).
2. Applicant information. Write down the full name of the institution, indicate the address, contact phone number, INN, KPP, OGRN, email, fax and other contact information. For example, the position of a specialist responsible for resolving a dispute.
3. Information about the recipient of the letter of claim for the return of funds (sample). Here we write down the full name of the organization, entrepreneur or individual to whom the application is being prepared, location address, TIN, OGRN, KPP and other information.

IMPORTANT!

Identify the recipient of the claim correctly. It is necessary to indicate the person (this can be an organization, individual entrepreneur or individual) who will act as a defendant in the court hearing if it is not possible to resolve the dispute “amicably”. This is a mandatory norm of the claim procedure. Otherwise, the court will consider that the algorithm has been violated.

Please note that the contract may indicate a special address to which written requests should be sent. It may differ from the legal location of the defendant. In this case, send the letter specifically to the address for correspondence. Otherwise, it is a violation of the established order. Exception: the applicant knows for certain that the special address is fictitious.

Step 2. In the text part of the request for a refund (sample), indicate:

• details of the contract whose terms have been violated;
• a list of violations, with references to clauses of the agreement;
• requirements for the partner: what needs to be done, eliminated, corrected;
• deadlines;
• details of bank accounts to which funds are required to be returned;
• list of documents confirming the circumstances of the application.

What should any pre-trial claim contain?

Full name of the recipient, his address

Grounds for the emergence of claims - the number and date of the contract, other document or description of the harm caused

Action requirements. Written arguments with your opponent should not be allowed. The requirement stated in the pre-trial claim must be enforceable by specific action. That is, the party must have 2 options: fulfill the opponent’s proposal or ignore it. If the request is for payment, full details of the bank account into which the money can be transferred are required.

The deadline for fulfilling the requirement is 10 calendar days, according to business customs.

A warning that if you fail to comply with the requirement within the specified time frame, you will be forced to go to court

What to include as confirmation

Often the circumstances will have to be documented. Attach the following documents:

1. A copy of the paper that gives the right to make a claim. This could be, for example, a copy of the acceptance certificate or for the provision of services, which indicates disagreements.
2. A copy of the agreement or government contract.
3. Receipts, payment orders for payment. You can also confirm that money has been transferred with a bank statement.
4. Calculation of penalties, penalties, fines and losses (if any).
5. A copy of the power of attorney, if the claim is signed not by the manager, but by an authorized representative.

Below you can pre-trial claim for a refund. A written request from an individual to an organization or individual entrepreneur is drawn up in a similar manner.

Deadline for responding to a pre-trial claim under the law

The parties have the right to choose a convenient time frame for responding to the claim. This is indicated in the claim or disputed contract. If they do not contain information, they are guided by the provisions of the law. By law, in most cases the response period must be reasonable and is not clearly regulated by law. Exceptions are cases:

Change or termination of an agreement (except for rent) - 30 days Termination of a bank account agreement - 1 month Disputes about insurance compensation under compulsory motor liability insurance - 5 days Claims to tourist operators - 10 days

Disputes regarding the provision of communication services - 60 days and some other disputes

In general, it is not customary to send a response to a complaint. This will not affect the proceedings in court. If you are not going to comply with the requirements of the complaint, it does not matter whether you ignore it or send a response with objections. The same objections can be presented in court in the form of a response to the statement of claim.

In what cases is a claim submitted?

Court cases are divided into civil, state, criminal, etc. Resolution of inheritance issues, settlement of ambiguous disputes between the supplier and the recipient organization in connection with the sale of low-quality goods, collection of a non-repaid loan, etc. — these are all civil matters. In such cases, it is impossible to file a lawsuit immediately.

The legislation of the Russian Federation establishes that before going to court, a pre-trial agreement must be reached, or at least an attempt must be made to resolve the issue pre-trial. Sending a claim to an individual or legal entity is precisely what is required for this - a pre-trial letter will serve in court as evidence of the plaintiff’s interest in resolving the issue pre-trial. If documents proving this fact are not attached to the claim, the claim will simply not be accepted by the court.

In some cases, when it is clear in advance that the defendant will not respond to the claim, filing a claim can be considered as the most ordinary stage, a mandatory procedure, without which it is impossible to initiate legal proceedings.

The claim must necessarily disclose the intentions of the injured party and the reasons for its dissatisfaction. Let's say the claim should indicate that the promised goods were not sent on time, as a result of which the company suffered losses. The plaintiff issues an invoice for the damage caused, as well as for the amount of goods that have not yet been sent. The defendant can repay the resulting debt either by direct cash payment or by an increased supply of goods and/or services without additional payment.

You can submit a claim in all cases where the legal rights of one of the parties have been infringed. For example, money was not paid on time for the delivery of goods, the provisions of the current contract were violated, the employer did not pay the salary due, etc.

How long should I expect the fulfillment of a requirement or a response to a claim?

As noted above, the deadline for fulfilling the requirement set out in the claim is determined by the sender independently. In practice, its average minimum value is 10 days, maximum - 1 month. In this case, the countdown of the period begins from the moment the letter is delivered to the addressee - this date will be recorded on the return notification. In addition, you can see it by tracking a letter using the track number on the Russian Post website.

It should be noted that in the practice of claim work, everything is far from being as clear as in theory. Thus, instead of fulfilling or failing to fulfill an obligation under a claim, claimants often receive a counterclaim, a letter justifying the illegality of the request, etc. From a legal point of view, in such situations, re-submitting a claim is not required if the requirements in connection with the response have not changed. If the claimant admits some overestimation of the claimed amount in the initial claim, it is better to repeat the procedure.

The law does not limit the number of claims submitted to a person whose rights were violated by failure to fulfill an obligation. Therefore, if the requirement is not met, and there is no desire or opportunity to go to court, you can send a second claim. In some cases, this debt collection technique can be quite effective.

Actions if ignored

This means only one thing - the request is not satisfied, which means that we need to move on to a judicial resolution of the issue. The judge will also think so: after the expiration of the response period, all barriers to going to court or Rospotrebnadzor disappear.

In such a situation you can:

• Submit a second claim. You can also resort to this option if the defendant did not completely ignore the requirements, but only asked to clarify and specify the requirements in the first letter. The law has not established a limit on the number of complaints sent, so, if desired, correspondence can be carried out for as long as desired;
• File a claim with the court or Rospotrebnadzor. You can submit applications in parallel to both organizations, cases will also be considered in parallel.

All that remains is to win the dispute, and this already depends on legal knowledge and the breadth of documentation prepared for the proceedings.