How does a court order work?
According to K. Yu. Sc., partner of Pepelyaev Group 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 Sergei Sosnovsky, the main problem is communicating to the debtor information about the issuance of a court order against him. The fact is that the court order comes into force after the expiration of the period for submitting objections to it. To object, the debtor is given 10 days from the date of receipt of the court order or from the date of expiration of the storage period for judicial mail correspondence (in civil and arbitration proceedings). For example, Russian Post has established a seven-day storage period.
The law requires the court to send a court order to the debtor by Russian Post. But even if the letter is delivered, this does not guarantee that the addressee will receive it, because citizens do not always live at the place of their permanent registration. “It happens that court staff send court orders in violation of deadlines or do not track their receipt by the debtor. In this case, the order can be executed even before the debtor even knows about it,” said Dentons Dentons Federal Rating advisor. group Antitrust law (including disputes) group Land law/Commercial real estate/Construction group Intellectual property (including disputes) group Compliance group Corporate law/Mergers and acquisitions group International litigation group Tax consulting and disputes (Tax consulting) group Tax consulting and disputes ( Tax disputes) group Capital markets group Labor and migration law (including disputes) group Pharmaceuticals and healthcare group Financial/Banking law group Digital economy group Arbitration proceedings (medium and small disputes - mid market) group Foreign trade activities/Customs law and currency regulation PPP group/ Infrastructure projects group International Arbitration group Natural Resources/Energy group Dispute resolution in courts of general jurisdiction TMT group (telecommunications, media and technology) group Transport law group Private wealth management group Bankruptcy (including disputes) 2nd place By the number of lawyers, Ph.D. n. Maria Mikheenkova. According to her, even more problems arise with court orders issued under the CAS procedure, and there are quite a few of them regarding taxes and fines. “CAS ties the start of the period for filing objections to the moment of sending, and not receiving, a copy of the order. If the court order is lying around in the courtroom or at the post office, then the debtor may miss the deadline through no fault of his own. This, unfortunately, is very common,” Mikheenkova noted. In this case, the debtor remains to ask the court to restore the period for appealing the court order. “The claimant also runs the risk of having the court order cancelled, even a long time after receiving it,” added partner at KA Yukov and Partners Yukov and Partners Federal Rating. group Bankruptcy (including disputes) group Dispute resolution in courts of general jurisdiction group Arbitration proceedings (major disputes - high market) group Criminal law 4th place By number of lawyers 11th place By revenue 16th place By revenue per lawyer (more than 30 lawyers) Company profile Svetlana Tarnopolskaya.
What to do if you receive a court order
When borrowers fail to fulfill their loan obligations, banks can apply various measures to them.
Some financial institutions prefer to sell problem loans to collection services, which then take on all the problems of returning the money. Some banks can file lawsuits and thereby solve the problem of refunds through a court order to collect the debt. There are also creditors who take a waiting position for a long time, after which they suddenly turn to the courts to make a decision. As a rule, borrowers have to deal with a situation where bank letters arrive at their home address stating that a court order has already been issued to collect the entire debt on the loan. At such moments, you need to know how to behave competently and respond to such letters . To do this, it is advisable to initially find out what a court order is.
Execution of a court order issued by an arbitration court
For the forced execution of a court order, the issuance of a writ of execution is not required, since a court order is at the same time an executive document and is enforced in the manner established for the execution of court decisions (part 2 of article 229.1, part 6 of article 229.5 of the Arbitration Procedure Code of the Russian Federation) .
A writ of execution for the collection of state duty for the income of the corresponding budget on the basis of a court order is issued by the arbitration court simultaneously with the issuance to the claimant of a second copy of the court order, certified by the official seal of the court, for presentation for execution (Part 6 of Article 229.5 of the Arbitration Procedure Code of the Russian Federation).
A writ of execution for the collection of state duty for the income of the corresponding budget on the basis of a court order is sent by the arbitration court for execution to the bailiff (Part 8 of Article 229.5 of the Arbitration Procedure Code of the Russian Federation).
The issuance of a duplicate of a court order and its direction for execution are carried out by an arbitration court - according to the rules for issuing a duplicate of a writ of execution and sending for execution of a court order (Part 6 of Article 229.5 and Article 323 of the Arbitration Procedure Code of the Russian Federation).
The duplicate of the court order must completely reproduce the lost court order, in the upper right corner of which the “Duplicate” stamp is affixed.
What to do if the time to challenge the court order has passed
Sometimes situations may occur in which the borrower learns about the effect of the court order from the bailiff . In such cases, you should initially find out why the debtor did not receive a court order by mail earlier. It is always possible to restore the deadline for canceling a court order and filing a counterclaim. Therefore, in any current situation, there is no need to immediately despair; all that needs to be done is to express your disagreement in writing within the allotted period of time and any court order will be canceled.
As for the creditor, he will have no choice but to go to court to file a claim, and this, as mentioned above, will provide the borrower with many opportunities to reduce the amount of collection and obtain a grace period for making overdue payments. During the consideration of a debt claim, you can slightly extend the trial process by gaining additional time. In addition, the lender can be offered to conclude a settlement agreement, which will also be a significant advantage for the borrower.
It should be noted that magistrates, as a rule, issue court orders exclusively for consumer loans, which are issued without collateral or guarantee.
Submission order
The document is submitted to the CA in accordance with the legal address of the organization that owes the money. Or in the AC, which is the coordinating link between both the creditor and the debtor according to contractual relations. The application is submitted directly to the court, by mail.
If the application and all the documentation attached to it were sent through the CA website, the judge will return the application to you. This is due to the fact that all attached “papers” are provided to the judge not in electronic format, but in the form of scanned copies that do not have the original signature. In this regard, the judge cannot verify the authenticity of the package of documents you provide.
After accepting the application, the court will make a final decision within 10 days. After the judge’s affirmative decision, a copy of the order is sent to the debtor within 5 days. After receiving and familiarizing with the writ of execution, the defendant has the right to write a petition or not to respond. After 10 days, the order is issued to the creditor, with whom he can go to the bank of the debtor and demand that the funds be debited from his current account. The claimant may turn to bailiffs to collect the amount of the debt.
Features of the arbitration process
The first thing that catches your eye is the possible absence of parties in the AC. In fact, the court does not examine the evidence base after accepting the application. To make a decision, the judge relies only on the attached documentation. The debtor does not take part in the collection of evidence, but he has the right to file an appeal if he disagrees with the demands put forward by the collector.
What distinguishes arbitration writ proceedings from civil ones is the absence of other persons in the case other than the principal and the creditor. The process takes place without the participation of prosecutors, lawyers, experts and other persons directly involved in the case.
The positive aspects of this order include:
- Government duty. It is half the state duty that would be charged for a claim for collection. For example, the amount of the claim is 200 thousand rubles, the fee will be 7,000 rubles, however, when filing an application, the state duty will be reduced to 3,500 rubles (according to clause 4.1 of Article 333.21 of the Tax Code of the Russian Federation);
- No need for a claim. The filing of an application is not subject to the time limit provided for the defendant to familiarize himself with the claim;
- Absence of a counterclaim from the debtor;
- The court does not change the amount of penalties, penalties, or interest.
What cases is it issued for?
The list of cases for which a court order is issued is specified in Article 229.2 of the APC. An application for a court order must contain requirements confirmed by contractual relations. Documents regulating commercial relations (rent, lease, loan, etc.) will help prove the debt. There are circumstances in which transactions are carried out once without bilateral documentation. In these situations, it is necessary to raise all documentation on the services provided, where a signature was placed on acceptance of unloading - provision of services (works).
Under any circumstances, it is necessary to draw up an additional document that will establish the existence of a debt.
Appealing a court order issued by an arbitration court in the cassation instance
A cassation appeal can be filed against a court order (part 11 of article 229.5, part 1 of article 288.1 of the Arbitration Procedure Code of the Russian Federation).
A cassation appeal against a court order issued by an arbitration court is filed according to the rules of Art. 275 of the Arbitration Procedure Code of the Russian Federation to the arbitration court of cassation, authorized to consider it, through the arbitration court that issued the court order. Violation of the established procedure for filing a cassation appeal against a court order is not grounds for returning the cassation appeal. A judge of an arbitration court of a cassation instance, in order to identify the grounds for reviewing a court order in cassation proceedings, has the right to request a case from the arbitration court that adopted the contested court order (Part 2 of Article 288.1 of the Arbitration Procedure Code of the Russian Federation).
A cassation appeal against a court order that has entered into legal force is considered according to the rules of Chapter 35 of the Arbitration Procedure Code of the Russian Federation, taking into account the features established by Art. 288.1 Arbitration Procedure Code of the Russian Federation. In this regard, a cassation appeal against a court order may be left without progress by the arbitration court (Article 280 of the Arbitration Procedure Code of the Russian Federation), returned by the court (Article 281 of the Arbitration Procedure Code of the Russian Federation), or proceedings on a cassation appeal may be terminated by the arbitration court (Article 282 of the Arbitration Procedure Code of the Russian Federation).
If a court order resolves the issue of the rights and obligations of a person who did not participate in the writ proceedings, such a person (for example, bankruptcy creditors, an authorized body, an arbitration manager) has the right to appeal the court order in relation to Art. 42 and part 11 of Art. 229.5 Arbitration Procedure Code of the Russian Federation. Thus, if the issued court order entails or may entail an unreasonable increase in accounts payable to the detriment of the bankruptcy estate, the cassation court cancels the court order in relation to clause 4 of part 4 of Art. 288 Arbitration Procedure Code of the Russian Federation.
