If the deadline for filing objections has been missed
If 10 days have passed , the court will return the objections. A copy of the order is sent to the debtor by registered mail with notification. If a notice of service of the letter is returned to the court, then it is considered that the debtor has received the order.
The court may accept objections received outside the deadline, but subject to the following conditions:
- the reasons for violating the deadline do not depend on the debtor,
- the reasons appeared during the ten-day period,
- the debtor sent objections within ten days from the moment when the circumstances preventing the timely sending of objections ceased.
Therefore, if you send your objections later, be sure to indicate why you could not send your objections on time and attach the relevant documents (for example, an individual entrepreneur being in a hospital for long-term treatment, on a business trip or vacation, failure to receive a copy of the order due to unlawful actions of the post office)
For example, the Arbitration Court of the North Caucasus District, in its Resolution dated July 4, 2021 in case A20-1957/2017, upheld the ruling of the arbitration court of the first instance and the decision of the appellate court to refuse to restore the missed deadline for filing objections.
A copy of the order was returned to the court, since the individual entrepreneur did not reside at the legal address, and did not make changes to the ERGIP. The debtor tried to prove that he was being treated at the hospital, but according to the documents, he was discharged before the court order was issued.
How to cancel a court order
According to Art. 129 of the Code of Civil Procedure of the Russian Federation, the cancellation of a court order is carried out on the basis of objections (statements) of the debtor. If this document is not received within the time period specified in the Code of Civil Procedure of the Russian Federation, the claimant will be able to send an order to the bailiffs. If the document is cancelled, the claimant will be able to file a claim in a judicial body of general jurisdiction. Read more about all these nuances below.
Deadline for filing objections for cancellation
This is the most important point if you intend to get the court order overturned. You can file objections to cancellation within 10 days. Please note that this period is counted from the date of receipt of a copy of the judicial act. Therefore, judges try to wait until they receive a notification from the post office that a copy of the document has been delivered to the debtor. But if the letter is returned from the post office due to non-receipt, or if the recipient no longer lives at the stated address, the judge will issue the applicant a document that has entered into force.
To confirm the date the order was received, be sure to include a copy of the mailing envelope with your objection. If objections are filed with the court within 10 days after the issuance of the judicial act, the deadline will be automatically met.
Grounds for restoring the deadline for cancellation under the Code of Civil Procedure of the Russian Federation
If the 10-day deadline for filing objections has been missed, you can reinstate it. To do this, you need to refer to valid reasons for missing deadlines. It could be:
- being on a long business trip;
- serious illness, including hospital stay;
- temporary stay outside Russia;
- other valid and objective circumstances.
The reasons why you missed the deadline for canceling the order must be supported by documents. This could be a travel certificate or travel documents, a certificate from a medical organization, a copy of a certificate of incapacity for work, etc. In each case, the judge will evaluate the evidence presented and check the basis of the circumstances that have arisen.
If, by order of the judge, the period for filing objections is restored, the judicial act will be canceled. The debtor learns about this from a copy of the magistrate's ruling.
How to properly file objections to cancellation
Article 129 of the Code of Civil Procedure of the Russian Federation does not contain any strict requirements for objections to cancellation. Obviously, this must be a written document signed by the debtor. To avoid problems when considering objections, we recommend that you indicate in them:
- the name of the judicial authority to which you are applying;
- information about the claimant and the debtor (they can be viewed in a copy of the judicial act);
- details of the order you are asking to cancel;
- the reasons why you are filing objections (this item may not be filled out at all);
- request to cancel a judicial act;
- signature, date.
According to Article 129 of the Code of Civil Procedure of the Russian Federation, the cancellation of a court order is carried out based on the objections of the debtor.
Objections must be filed within 10 days after receiving a copy of the order. If the deadline for filing objections has been missed, the debtor may file a cassation appeal to cancel the order.
Although this is not necessary, in your objections you can indicate disagreement with the amount of the claimant’s claim or with the period of delay, or refer to the omission of the statute of limitations. But even if you do not provide a justification, the very fact of filing an objection obliges the judge to cancel the previously issued order.
How to file an objection to cancel an order
Objections can be submitted to the magistrate’s court office or the document can be sent by mail. Be sure to keep a document confirming the direction of the document. This may be important if a dispute arises regarding compliance with the cancellation deadline. For example, the date of sending objections is easily confirmed by a postal receipt.
In addition to the debtor himself, documents can be submitted by his representative by power of attorney. This could be a lawyer, lawyer or other person. If you need help canceling a foreclosure order, you can contact our lawyers.
Determination of the magistrate
After receiving objections, the judge must cancel the order. A determination is made about this. Within three days, a copy of the court ruling is sent to the parties. In this case, the claimant will be explained that he will be able to go to court through a claim proceeding.
If the deadline for filing objections has been missed and the debtor does not ask to reinstate it, the judge will issue a ruling refusing to cancel the order. In this case, the judicial act will come into force, and the claimant will be able to send it to the FSSP.
When is the debtor considered to have received the order?
The court sends the letter to the legal address.
If the organization or individual entrepreneur is not located at this address, and the corresponding changes have not been made to the Unified State Register of Legal Entities or the Unified State Register of Individual Entrepreneurs, then the letter is considered to have been received by the addressee.
Another situation: if the letter is delivered, but the debtor avoids receiving it, for the court this will mean that a copy of the order was received by the debtor.
In this case, the date of delivery of the order will be the expiration of the period for storing postal correspondence.
If it is impossible to deliver them, postal items of the “Judicial” category are stored at the post office for seven days. When calculating the period, the day of receipt and the day of return of the postal item, non-working holidays are not taken into account.
Is it necessary to justify objections when canceling a court order?
In order for an order to be cancelled, it is not necessary to write a detailed justification. You can simply indicate: you do not agree with the requirements presented. This will be enough for the court to cancel the order.
The order comes into force immediately after its issuance, therefore, if you have not sent an objection and the order is not cancelled, then it will be executed. And you will have to appeal the judicial act that has already entered into force.
Write objections and cancel the order if you are confident in your position, because canceling an order:
- does not require you to justify your objections,
- will delay enforcement,
- will force the creditor to go to court with a claim, which is more expensive and takes more time.
You should not cancel the order just to delay time if you agree with the demands presented, since legal costs for writ proceedings are lower than for claims:
- state duty is twice as low,
- no transport, travel expenses,
- the lender will not charge you the cost of the services of a representative or examination.
Reasons for objecting to a court order
The reasons for objecting to a court order can be very different. The debtor can simply write to the court that he objects to the order made against him. Objections may contain specific reasons why the debtor does not agree with the court order, for example, the claimant made an incorrect calculation, the debtor does not agree with the amount of the debt, the claimant missed the statute of limitations, the debtor does not owe the claimant anything at all, etc.
Situations are different, and when a judge issues a court order, she simply looks at the sufficiency of evidence to satisfy the demands of the claimant and issue an appropriate judicial act. But there may be a situation where some of the evidence is falsified or, on the contrary, the debtor has already fulfilled the obligation, and for some reason the claimant went to collect what he had already received.
Thus, the reasons for objections depend on the specific circumstances of the case.
The debtor may not have any specific objections at all, but he will want to stall for time so that the enforcement proceedings under the court order are terminated and until the court makes a decision and issues a writ of execution to initiate new enforcement proceedings, the debtor can somehow resolve the dispute with the claimant or take other actions.
How to write an application to revoke a court order?
- It is necessary to indicate the name and address of the arbitration court , the name (full name) and contact details of the debtor and the claimant, and the case number.
- It is necessary to indicate that the debtor objects to the issuance of the court order.
- If you indicate the reason for your objections, please attach supporting documents .
- If the order is signed by a representative, attach a power of attorney .
- If you missed the deadline, justify the reason and attach the relevant documents .
Sample application for cancellation of a court order
Application for cancellation of a court order
View document
Consideration of objections to a court order
Having received objections to the court order, the judge is obliged to consider them and make a decision based on the results of the consideration.
At the same time, the procedural legislation does not establish time limits for the court to consider objections to the court order. As a rule, judges consider objections within several days and make appropriate decisions either to cancel the order or to refuse to cancel the order.
Arbitration courts quickly consider applications, but magistrates do not consider applications so quickly, so it makes sense to call the courthouse every day and clarify information about the judge’s consideration of your objections.
After the judge makes a ruling based on the results of consideration of objections, such a ruling must be sent to the parties by the magistrate within 3 days, and by the arbitration tribunal within 5 days.
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What happens after the court order is lifted?
If the order is cancelled, the claimant may apply to the court with a statement of claim or an application to appeal against non-normative acts of the authorities.
Therefore, always file an objection to the order if you do not agree with the creditor's demands.
In claims proceedings, as well as in court proceedings when appealing against non-normative acts, you will be able to attract a qualified lawyer, protect your interests, send feedback, and provide evidence of your position.
Consequences of canceling a court order
The consequences of canceling the order depend on the conditions under which the debtor filed objections to the judicial authority. In any case, the claimant will retain the right to file a claim. But the debtor will have time to prepare for the civil case, collect evidence, and enlist the help of a lawyer.
Often the order is canceled after it has been transferred to the FSSP and proceedings have been initiated. In this case, the judge’s ruling must be submitted to the bailiff so that he can terminate the collection case. If the claimant subsequently achieves a positive decision on the claim, the FSSP will initiate new proceedings.
The fee paid when filing an application for an order is not collected from the debtor. But it can be counted toward the court fee when filing a claim. Accordingly, by decision of the court, the losing party can recover all legal costs incurred by the plaintiff.
