A court order is a document that is issued by a representative of the court based on the results of conducting cases for the collection of funds and property, provided that the parties were not present during the proceedings. The issuance of the order means that the plaintiff's claim must be satisfied without fail, since the defendant did not give any objections to it.
However, in cases where the debtor promptly submits an application to the court to cancel the court order due to disagreement with the decision made, the case is sent for review. The legally established period for writing this application is no more than ten days from the date of creation of the order.
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It should be noted that the received objection serves as the basis for the mandatory cancellation of the court order, since the reasons for the defendant’s failure to appear in court may be quite valid and at the same time he retains the right to protect his interests.
What is a court order
The procedure for issuing court orders differs significantly from claim proceedings. The applicant does not have to wait for the court to schedule hearings, consider the case, and make a decision. According to Art. 121 of the Code of Civil Procedure of the Russian Federation, the order is a resolution of the magistrate, which is issued according to the following rules:
- To issue an order, an application is submitted to the magistrate's court;
- the judge issues an order individually, without holding meetings or calling the parties;
- an order can be issued only according to the requirements expressly specified in Art. Art. 121-122 Code of Civil Procedure of the Russian Federation;
- the order comes into force after 10 days, unless objections and an application for its cancellation are received from the debtor.
The simplified procedure for issuing an order is related to the nature of the requirements, which the applicant must confirm. The subject of the application can only be an undisputed debt or a claim based on law, transaction or agreement.
Let us highlight the most common categories of cases for which a court order can be issued:
- collection of child support, since the obligation to support children is expressly specified in the RF IC;
- recovery of earnings at the place of work, vacation pay, severance pay and other payments from the employer;
- collection of debt under a transaction or agreement, including with notarization (debts under loan agreements fall under this category);
- collection of debts for payment for housing and communal services, telephone communications;
- reclaiming property from the debtor, if this demand is indisputable and supported by documents.
If the subject of collection is periodic payments, the size of the debt is not important. However, in Art. 121 of the Code of Civil Procedure of the Russian Federation provides for an important limitation - an order can be issued if the amount of monetary and property claims does not exceed 500 thousand rubles. For example, if the loan debt exceeds this amount, the bank will have to file a claim.
Court orders for the collection of housing and utility payments in questions and answers
This type of solution has its own characteristics. It is published in a matter of days without inviting the creditor and the debtor into the courtroom.
The Code of Civil Procedure of the Russian Federation contains an exhaustive list of grounds under which it is possible for a magistrate to carry out writ proceedings. Possible reasons include the presence of utility debts.
At the same time, both payers for consumed services and utility services periodically have questions related to the issuance, review and execution of the will of the court. Here are just a few examples of advice provided by lawyers.
Is it possible to cancel a court order for utilities in a municipal apartment?
I have a place of permanent registration in an apartment that was provided to my mother under a social tenancy agreement. I myself currently live with my common-law wife in another home.
Three days ago I was given a copy of the court order to collect my part of the utility debts for municipal housing. What should I do, because I don’t live in a living space for a long time, I don’t use water, heat or light.
Anatoly, Vnukovo.
Expert commentary
Roslyakov Oleg Vladimirovich
Lawyer, specialization civil law. More than 19 years of experience.
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According to the current version of the Housing Code of the Russian Federation, the very fact of registration in the premises gives rise to the obligation to make utility payments. Therefore, municipal services are right to initiate writ proceedings for debt collection. It is allowed to challenge it due to disagreement with the amount of debt, but this will only gain time. After all, a statement of claim may follow, and the amount accrued by that time will still have to be paid.
Is it possible to appeal the court order of the magistrate regarding utility payments if 10 days have passed
The other day I received documents from a magistrate, according to which a debt in the amount of 25 thousand rubles was collected by court order for non-payment of hot water and heating.
It was not possible to file an objection within ten days because she was in the hospital. Tell me what to do legally correctly in this case? Thank you in advance.
Victoria, Moscow.
Expert commentary
Roslyakov Oleg Vladimirovich
Lawyer, specialization civil law. More than 19 years of experience.
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There is only one way out of the described situation - to file objections regarding the further execution of the court order. Attached to it is a petition in order to restore the deadline for reviewing this form of decision with the attachment of documents confirming the presence of treatment. True, there is one problem. Chapter 11 of the Code of Civil Procedure of the Russian Federation does not directly provide for the possibility of renewing the time for filing objections. Therefore, it is possible that the utility service may have time to contact the bailiffs.
Then the only way out will be to repay the accumulated debt voluntarily. 7 days are allotted for this from the date of receipt of the resolution notifying the start of enforcement proceedings.
If you receive a pre-trial notice of non-payment for major repairs
I live in an apartment building that is already 20 years old. Now I have received a letter from the regional operator about the need to make a contribution for major repairs for the previous year. Otherwise, the Criminal Code threatens to sue.
Tell me what is the best thing to do in such a situation? Thanks in advance for your answer.
Valentina, Lyubertsy.
Expert commentary
Roslyakov Oleg Vladimirovich
Lawyer, specialization civil law. More than 19 years of experience.
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First of all, it is necessary to resolve all disagreements with the organization. It is necessary to find out how the amount is calculated and whether the square meters of the apartment are indicated correctly. In order not to bring the case to court, it is allowed to agree in writing on the provision of installment plans. The worst case scenario would be a court order. It is submitted without summoning the parties to the office of the magistrate. And if it is not canceled in time, employees of the FSSP department will begin to collect the debt.
We recommend! How to cancel a court order under a loan agreement, useful tips + objection to a court order on a loan
How to appeal a court order for utility payments if the debts have been paid
Yesterday I received from the postman a document from the court, issued in order to collect the debt for consumed electricity. It states that the debt was generated in the second half of 2021.
However, all receipts for payment of electricity for this time period are available. What is the sequence of actions in this situation?
Dmitry, Balashikha.
Expert commentary
Roslyakov Oleg Vladimirovich
Lawyer, specialization civil law. More than 19 years of experience.
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Here you need to focus on deadlines. If 10 days have not yet passed since the receipt of the letter, objections are submitted to the magistrate. Copies of receipts for all payments are attached to them. But most often there is another option, in which the order has already been transferred to the bailiffs for execution. Then a statement is written to suspend enforcement proceedings. Attached to it is a copy of the response to the order for housing and communal services with the number of the incoming magistrate’s court, as well as receipts for payments made.
Response to a court order to collect debts for utilities
An application has been submitted to collect from one of the residents of an apartment building serviced by the company arrears in rent and garbage collection. The magistrate issued a court order, but subsequently canceled it.
What steps should be taken next in this situation? Thanks in advance for your answer.
Manager, Moscow.
Expert commentary
Roslyakov Oleg Vladimirovich
Lawyer, specialization civil law. More than 19 years of experience.
Ask a question
There is only one way out of this situation - filing a statement of claim to collect debts for payments. When preparing it, you should take into account the limitation periods. In addition, it is necessary to provide a detailed breakdown of the existing debt by period - by month, quarter, half year, and other segments.
In addition, a state fee is paid. The required amount is calculated according to the scale given in paragraph 1 of Art. 333.19 of the Tax Code of the Russian Federation - from the price of the claim.
Cancellation procedure
The judge must issue an order no later than 5 days after receiving the application. This does not mean that the debtor is deprived of all rights to file objections and complaints. The judge is obliged to send a copy of the order to the debtor, after which the following consequences occur:
- the period for filing objections begins to run only from the moment the debtor receives the order;
- no more than 10 days are given to file objections after receipt of the document;
- if the debtor filed objections, the order will be canceled, and the claimant will have to file a claim according to the general rules;
- if no objections are received, the applicant is issued an order stamped and signed by the court.
Having received the order, the claimant will be able to send it to the debtor’s place of work, to the bank for debiting from the account, or to the FSSP to initiate enforcement proceedings.
If the debtor permanently resides at a permanent address and receives notice of the order on time, he will have enough time to file objections. If the debtor does not agree with the claimant’s demands, he needs to:
- put objections in writing;
- submit the document to the court office, or send it by mail (the date of the incoming number and the postmark will determine compliance with the 10-day cancellation period);
- make sure the order has been cancelled.
If objections are received, a court hearing is also not scheduled or held. The parties will be notified by the court that the order is vacated or the objections are rejected.
However, if the debtor, for good reason, was not notified of the order, the situation becomes more complicated:
- the judge will issue the order as soon as 10 days have expired, even if there is no evidence of service of the notice to the debtor;
- Having received the order, the claimant can immediately submit it to the bailiffs to initiate proceedings, at the place of work or to the bank;
- the bank or employer can immediately begin write-offs, and the bailiff will begin enforcement actions after 5 days for voluntary execution.
Thus, without information about the order, the debtor may face seized accounts and blocked cards, write-off of alimony or funds for other debts. In this case, the right to cancel the order is also retained, but the debtor must prove when he became aware of the fact that the document was issued. We will describe below the procedure for canceling an order if the deadline is missed.
Missed the deadline for filing an appeal?
A citizen (or individual entrepreneur) has the right to restore the appeal period missed for valid reasons by sending a corresponding petition to the judge. Moreover, if there are good reasons, the debtor may not directly apply for restoration of the deadline. He has the right to submit ordinary objections to the magistrate, additionally indicating the reasons for the omission and justifying them with supporting documents. For example, a certificate from the hospital, a travel certificate, a certificate of change of address, and so on. The Supreme Court of the Russian Federation clarified that this can be done in its Resolution No. 62 of December 27, 2016. However, he clarified that the circumstances that prevented a person from sending objections on time must remain in effect throughout the entire period of appeal, and the objections themselves were sent by the citizen no later than 10 days from the date of termination of these circumstances.
It is much more difficult for a legal entity to justify the validity of the reasons for the untimeliness of objections, since the head of the organization is obliged to organize work in such a way that, in the event of his absence, authorized persons receive postal items.
In each specific case, the issue of restoring the deadline for appeal is decided by the court.
Grounds for cancellation
In Art. 129 of the Code of Civil Procedure of the Russian Federation states that if objections are received from the debtor in a timely manner, the judge is obliged to:
- cancel the order by issuing a ruling;
- send the determination to the parties within 3 days;
- notify the claimant that he can present the same demands in a lawsuit.
What arguments and evidence must the debtor present in order to obtain the cancellation of the order? The Code of Civil Procedure of the Russian Federation does not provide a list of grounds on which the court must cancel a previously issued order. In fact, it is enough for the debtor to notify the court of his objections without disclosing the reasons and arguments for such a decision. Even if the received objections do not indicate reasons and grounds at all, the judge will cancel the order.
The claimant will also not be able to appeal the cancellation determination if he is not satisfied with the debtor’s explanations. In this case, a dispute arises between the parties, and it can only be considered in a lawsuit. When filing a claim, the claimant must indicate that he previously filed an application for the order, but the document was canceled. This will allow the debtor to collect the state fee if it had to be paid to issue the order.
What documents are required to cancel a court order?
To cancel the order, you must draw up an application, filled out in 2 copies - for the magistrate and for you, where the mark is placed. If a court order is received from the bailiffs, we advise you to supplement the application with a request to cancel the enforcement proceedings.
When you learn about the decision made through the bailiffs or after withholding income, you must attach a petition to restore the deadlines to the objection. It must indicate a valid reason and attach documents.
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Cancellation dates
As stated above, problems with cancellation will not arise if the debtor meets the 10-day deadline for filing objections. However, if a citizen learns about the existence of a document after a long period of time, or even after deductions in enforcement proceedings, he will have to restore the period for cancellation. To do this you need:
- obtain a document confirming the date of delivery of the order, or the moment when the debtor learned of its existence (for example, you can submit a bailiff’s order to initiate proceedings);
- file written objections and an application to restore the deadline for filing them;
- forward the documents to the magistrate who issued the order.
After receiving an application to restore the terms, the judge is obliged to apply Article 12 of the Code of Civil Procedure of the Russian Federation. The application must be considered at a court hearing with notification of the parties. This means that the claimant will be able to present his evidence and arguments. If the debtor proves that he did not know about the order, confirm the date of receipt of the document or information about its availability, the deadline will be restored. The judge is also obliged to assess the validity of the reasons that did not allow the debtor to file objections on time.
After the deadline is restored, the debtor’s objections are satisfied, and the judge issues a ruling to cancel the order. After this, the claimant will be able to file a claim on a general basis.
Deadlines for filing objections
The law sets the following deadlines:
- 20 days from the date of sending (not receiving!) a copy to the debtor during proceedings in accordance with the CAS RF procedure (part 3 of article 123.5 of the CAS RF);
- 10 days from the date of receipt of the copy during production in accordance with the Civil Procedure Code of the Russian Federation and the Arbitration Procedure Code of the Russian Federation (Article 128 of the Code of Civil Procedure of the Russian Federation, Part 3 of Article 229.5 of the Arbitration Procedure Code of the Russian Federation).
The period is calculated from the day following the day the debtor sent (received) a copy. The date of sending objections is considered to be the date of the stamp on the postal envelope, which is placed upon receipt of the item (if sent by mail), or the date indicated by the secretary when sent through the office. Periods calculated in days do not include non-working days.
Sample application to cancel a court order
The Code of Civil Procedure of the Russian Federation does not contain clear requirements for filing objections to a court order. Based on the general rules of the Code of Civil Procedure, the document must indicate:
- name of the court district where the document is filed;
- information about the debtor and claimant;
- details of the court order to which objections are being filed;
- the essence of the document, i.e. statement by the debtor of disagreement with the order;
- the reasons why the debtor asks to cancel the order (it is not necessary to indicate them, but is not prohibited);
- request to cancel the order;
- date and signature of the applicant, his representative by power of attorney.
There is no need to pay a state fee for filing objections. However, if the claimant brings a claim, he will be able to withhold the fee paid when applying for the order.
Sample claim for cancellation of a court order
Get installments
If the debtor has no objections to the content of the court order, but is temporarily unable to fulfill the demands of the claimant, he has the right to apply to the court that issued the order with a written application for an installment plan or deferment of execution, as well as a change in the order of payments. The appeal should indicate valid reasons, refer to a difficult financial situation or other documented circumstances.
But we must remember that granting a deferment of debt payments is a right, not an obligation, of the judiciary.
Arbitrage practice
Applications to cancel a court order can be submitted by the debtor not only in case of actual objections to the requirements, but also to delay the process. It can take up to 2 months to file and consider a claim, and the court decision came into force only after 30 days. All this time, the debtor will not be subject to demands or claims from the collector or bailiff.
The most common cases of cancellation of court orders include:
- the debtor’s disagreement with the calculation of debt and penalties for an overdue loan (for example, in a lawsuit, the penalty can be significantly reduced if it is disproportionate to the principal debt);
- disagreement with the calculation of housing and communal services (for example, if the receipts did not take into account periods in which utilities were not actually provided);
- disagreement with the calculation of taxes, fines and penalties;
- objections regarding the amount of alimony declared by the claimant.
The debtor may present arguments and evidence on the listed grounds simultaneously with the application to cancel the order. However, the magistrate will not consider them on their merits. Therefore, the debtor will have to defend his interests in the lawsuit.
conclusions
So, any court order that has not entered into force can be easily canceled. It is enough to simply send your objections within the period specified by law and the court will certainly cancel it. Moreover, even if the deadline is missed for good reasons, the court can make a ruling and cancel the court order. That is, the legislation is very loyal to the debtor in the process of writ proceedings. However, you should not be deluded by this - after the court order is canceled, legal proceedings begin, which, as a rule, ends with a decision to collect the debt. Therefore, we urge readers, immediately after receiving information about the issuance of a court order, to seek help from professional lawyers who will be able to assess all the risks, formulate the necessary arguments and defend your interests in court.
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Consequences
If the order is canceled due to objections received within 10 days, it will not actually enter into force. Therefore, there will not be any significant consequences for the parties in this case. The claimant will be able to file a claim, and the debtor will present his response in the trial.
If an order that has already entered into force and issued to the claimant is cancelled, the following consequences occur:
- all enforcement measures and restrictions imposed by bailiffs or other authorities are subject to cancellation;
- the arrest of accounts and cards is lifted;
- the employer stops deducting wages;
- the debtor will be able to apply for the return of funds withheld under the canceled order.
According to Art. 43 of Law No. 229-FZ, the bailiff is obliged to terminate the proceedings if the executive document was canceled, i.e. court order. At the same time, seizures of property and accounts, restrictions on travel outside the Russian Federation and on the right to drive transport will be lifted. If the claimant subsequently submits a writ of execution, the proceedings will be initiated anew.
The debtor can also apply for the return of funds actually withheld under the canceled order. The money will be returned to the FSSP deposit within 30 days according to the details specified in the application.
After the order is cancelled, the claimant may file a claim in court. To do this, you need to take into account the limitation periods provided for by the Civil Code of the Russian Federation. For the period from the filing of an application for the issuance of an order and its cancellation, the statute of limitations is suspended. If a dispute arises about the timing, the claimant must submit an initial application with the date of registration in the magistrate's court.
After canceling the order, the debtor can submit it to the FSSP unit where the proceedings are being conducted. The bailiff is obliged to stop the proceedings within 3 days, and also:
- revoke documents for retention from the debtor’s place of work;
- cancel the seizure of bank accounts and property;
- cancel the search for the debtor and his property;
- remove restrictions on travel and the right to drive transport.
A copy of the decision to terminate the proceedings will be sent to the claimant and the debtor.
If enforcement proceedings have already been initiated
If the court order has entered into legal force and enforcement proceedings have been initiated against the debtor, then ignoring the requirements can lead to negative consequences. For example, to the seizure of accounts.
However, even in this situation, the debtor does not lose the opportunity to appeal the court order. In the Resolution of the Supreme Court of the Russian Federation mentioned above, it is especially emphasized that a cassation appeal is filed against an order that has entered into force. Today she is sent to the presidium of the court of a constituent entity of the Russian Federation (supreme, regional, regional, etc.). The period for such an appeal is six months from the date of entry into force of the court order. However, it is worth clarifying that the process of cassation appeals against decisions of magistrates’ and district courts will soon undergo serious changes. In accordance with Law No. 1-FKZ of July 28, 2018, a new structure of appeal and cassation courts is being created in Russia. And after the Supreme Court of the Russian Federation notifies in 2021 about the start date of these courts, the court order that has entered into force can be appealed to a new cassation instance.
In addition, it should be remembered that in accordance with Article 39 of the Law on Enforcement Proceedings No. 229-FZ, a judge can suspend enforcement proceedings when the debtor (defendant) challenges the court order in the cassation instance. So, the entry into force of a court order does not mean that it cannot be canceled or enforcement proceedings suspended.
Appeal against refusal to cancel a court order
If the magistrate refuses to cancel the order, an appeal can be filed against the ruling in the district court. The grounds for filing a complaint may be:
- refusal of the magistrate to restore the deadline for filing objections if the debtor provided evidence of valid reasons;
- establishing the fact that a copy of the order was not sent to the debtor, which deprived him of the right to file objections;
- issuance of an unmotivated ruling by a judge.
The complaint must be filed through the magistrate who issued the ruling. The state fee for such complaints is not paid.
In practice, the only reason for refusing to cancel an order is missing the 10-day deadline. The judge may incorrectly evaluate the evidence presented, so during the appeal, the debtor needs to again present his arguments, but in the district court.
If the complaint is upheld, the order will be canceled from the date it was issued. All consequences stated above will apply according to the same rules.
Appealing a ruling to cancel a court order
The claimant may file a complaint against the ruling to cancel the order. In this case, the appeal also goes through the district court. In the text of the complaint, the claimant may indicate that the debtor knew about the order, but did not exercise the right to file objections within 10 days. You can also provide explanations about the invalidity of the reasons for reinstating the deadline.
If the order is canceled and the complaint remains unsatisfied, the claimant can file a statement of claim according to the general rules of the Code of Civil Procedure of the Russian Federation. The claim is filed with a magistrate or district court (depending on the value of the claim and the nature of the claims). The parties will be notified in advance of the place and time of consideration of the claim, and the court can make a decision only after holding meetings, hearing the plaintiff and defendant, and studying the case materials.
After the claim is satisfied, the claimant needs to wait for the decision to come into force and receive a writ of execution. Based on these documents, the bailiff will be able to initiate enforcement proceedings.
Why did the court issue an order to collect the loan without the presence of the defendant (without me)
The court does not summon either party to make the order. There is no trial as such. The magistrate sees the loan agreement and your failure to repay the debt and simply agrees with the bank. He does not delve into the amounts of fines and penalties.
Thus, the lending institution, with the help of a judge, “sentences” you to an unfair amount. Often it exceeds the principal debt several times.
The paper will be sent to the defendant by mail to the address specified in the loan agreement. If the borrower does not live at the place of registration, no one will check this information. The obligation of the court after sending the document is considered fulfilled.
In most cases, the defendant learns about the court's decision to collect the loan from the bailiffs. The order has the force of an executive document. The plaintiff hands it over to the bailiffs, who can:
- seize official sources of income;
- withdraw funds from debit accounts without notifying the debtor;
- seize property.
At the same time, fines will be deducted from the salary first, then interest, and lastly the loan amount.
What to do in this situation? Don’t be afraid of this paper; canceling it is as easy as shelling pears. The main thing is not to panic, but to figure out how to solve this problem.
