Application to cancel the court order of objection

How to write an application to cancel a court order so that it does not enter into legal force? What reasons for cancellation should I describe and attach supporting documents? Is there any point in filing an objection? Many people are surprised to hear the answer to these questions. But, perhaps, these answers determined the fact that writ proceedings do not seem so convenient and fast to the claimant. Perhaps the ability to cancel a court order even in the absence of compelling arguments is the main disadvantage of writ proceedings.

A court order is used very often in judicial practice. And since 2016, those interested in resolving the dispute have been left with virtually no choice - to file an application or a lawsuit. If the case must be considered by order, the court will return the statement of claim filed against it without consideration.

Justices of the peace issue orders on claims for debt collection on credits, borrowings and utility bills, alimony and wages, etc. The main feature of a court order is that it is issued without summons to court, only on the basis of an application and documents submitted to it.

Note!

What is a court order?

Deadline for filing objections to a court order

Since the court order is issued without notifying the parties, the court sends a copy of it to the place of residence of the person at whose expense the claims of the claimant will be satisfied. After receiving a copy of the order, the debtor has the right to file objections to the court order according to the provided sample. A statement of disagreement with a court order is submitted to the same magistrate who issued the court order.

A court order is canceled if the magistrate receives objections to its execution or an application for cancellation. In this case, you must meet the established deadline for filing objections - 10 days from the date of receipt of a copy of the order. This period is established by Article 128 of the Code of Civil Procedure of the Russian Federation. And it begins to flow precisely from the moment the debtor receives a copy of the court order.

It is important!

An application to cancel a court order must be submitted within 10 days

The Code of Administrative Proceedings establishes a different filing deadline - 20 days from the date of sending a copy of the court order (Article 123.5 of the CAS RF).

The deadline for filing objections regarding the execution of a court order is indicated by the magistrate in the order itself.

Form and content of the document

You need to know how to correctly write a statement of disagreement with a court decision:

the document is drawn up in writing and signed by hand;
in the header indicate the name of the court that made the decision and the case number;
addressed to the court that issued the act.

In the pleading part, it is enough to indicate disagreement with the adopted act, state objections, motivate your position and do not need to provide evidence (Article 129 of the Code of Civil Procedure of the Russian Federation, Part 4 of Article 229.5 of the Arbitration Procedure Code of the Russian Federation, Article 123.7 of the Code of Arbitration Procedures of the Russian Federation).

The requirements for writing an application to the magistrate's court to cancel a court order are the same for district and arbitration courts. Objections are sent by mail with a list of attachments and a notification, or delivered in person through the office.

Missing the deadline for filing objections

If the established deadline for filing objections is missed, the magistrate will not consider the received objections. In this case, the debtor's application is returned to him without consideration.

The court will consider this period from the moment when the receipt is signed in the postal notification or a receipt is given in court. If you miss a deadline, which is best avoided, it is necessary to resolve the issue of restoring the deadline. To do this, you need to justify and document the impossibility of submitting objections on time. For example, the debtor changed his place of residence and did not receive a court order. Or was on a long business trip.

Grounds for appeal

It is desirable that the factors for appealing the court order really exist, otherwise it will be problematic to meet the deadline. Usually one or more possible options are selected.

Disagreement with the amount

The most popular solution. Sometimes the Criminal Code mistakenly indicates the amount to be paid. In some situations, it is unlawful to charge fines and penalties. If the funds specified in the order do not coincide with one’s own vision of the state of the personal account, the decision must be challenged.

What constitutes an order in civil proceedings.

To do this, you must have receipts on hand. Experts recommend putting them in a separate folder from the very beginning so that you can present data for several years at once. The more information you can collect, the more justified your position.

Postponement

Sometimes it is not possible to repay the debt within the deadlines established by the management company, and then by the court, for good reasons. They may be the lack of registration in the region, serious illness or other unforeseen factors.

It is better to check with a lawyer about the possibility of a deferment for each case. A legal specialist will tell you what documents need to be prepared for a response to the court.

Limitation of actions

Usually, an attempt to collect old debt is a tool of unscrupulous management companies and homeowners associations. Often such lawsuits are filed to close holes in an organization's budget. A characteristic feature is that before contacting a higher authority, employees of the management company for a long time, in a persistent and aggressive manner, convince the citizen that he is obliged to pay all the arrears, threaten to turn off public services, and so on.

However, no one has canceled the limits of the claim period. When receiving a court verdict regarding old debts, you can safely appeal to this concept. According to clause 1 of Article 196 of the Civil Code of the Russian Federation, the period is three years.

Usually, as a result of consideration of an appeal from a consumer utility, the debt is frozen. They will not be able to collect it, but only until the first violation of the payment procedure. The next time you miss it, the amount will be added to the amount of the new debt. Therefore, it is better to solve the problem of the unpaid balance, request a recalculation or gradually pay off.

Order form

The executive act is drawn up in the form specified in Art. No. 124 Code of Civil Procedure of Russia. If the received copy does not correspond to them, then the decision can be successfully challenged. Most likely, this will only work once, because a simple mistake in drawing up an order will not help the debtor.

The creditor has the right to appeal again to a higher authority. At the same time, the likelihood that the verdict will again be drawn up incorrectly is minimal.

How to write an application to cancel a court order

The debtor is not required to substantiate the application to cancel the court order. The law does not require the indication of arguments, legal justification, or reasons why he does not agree with the order. In this case, the very fact of filing the application and the presence in it of the wording required by law will be decisive for the cancellation of the court order. According to Article 129 of the Code of Civil Procedure of the Russian Federation, in order to cancel a court order, the court must receive an objection regarding the execution of the court order. When submitting such an application, no state fee is paid.

After receiving objections, the magistrate, without calling the parties, issues a ruling to cancel the court order. The definition clarifies the right to bring a claim in the general manner. The ruling to cancel a court order is not subject to appeal.

New rules for recovery based on a court order

The general provisions for the provision of public services are described in Government Decree No. 354 (as amended in 2020). The document also specifies the maximum duration of non-payment without consequences. Then the manager has the right to initiate debt collection proceedings. In 2021, a new procedure, approved in 2021, is in effect - before this, the system worked on a different principle.

Old practice

Previously, the law had a more favorable attitude towards defaulters.

For each debtor, the management company was obliged to take a number of actions:

send a written notification of the existence of a debt, or notify in person (by an employee of the management company);
provide an opportunity to fully repay debts within a calendar month;
propose to enter into an installment agreement for partial repayment at the end of each billing period.

For respectable citizens, such a mechanism was gentle, since there are more opportunities to find money and pay off the debt. However, this freed the hands of malicious defaulters. The management company could go to court for recovery only after these attempts at settlement and with confirmation in the form of signatures on notices and copies of agreements. This allowed some debtors to evade payments for several years.

Watch the video: “Cancellation of an order to collect debt for housing and communal services.”

Today

The procedure has changed in 2021. The participation of the defaulter before filing a claim was simply excluded. The organizations are requesting a court order. The issue of his extradition is considered quickly and unilaterally.

The updates are described in the Resolution of the Plenum of the Supreme Court of the Russian Federation dated December 27, 2016, which approved a new notification and collection process:

Three billing periods must pass from the onset of debt formation. Until this moment, the Criminal Code does not have the right to initiate the procedure.
After 3 months of non-payment, a notice is given. It indicates the amount of unpaid utilities with recommendations for repayment, usually a specific date. The opinion that such a notice must be served in person is erroneous. It is not recommended to draw analogies with a summons to the military registration and enlistment office here. Timely payments for housing and communal services are the responsibility of a citizen, who must independently control the occurrence of an unpaid balance (Housing Code of the Russian Federation, Art. 153).
If the organization's recommendations are not implemented or ignored, its representative goes to court. The reason is indicated, documents confirming the existence of the debt are attached - statements, receipts.
An important difference from the old procedure is that the court does not summon both parties. Review takes place within 5 working days (Article 126 of the Code of Civil Procedure)
The management company is given a copy of the court order. The highest authority makes a decision in favor of the organization and gives the opportunity to collect the debt.

As a result, it is almost completely impossible to influence the proceedings. It is difficult to avoid the return of funds, so the defaulter can only challenge the court order to collect the debt for housing and communal services. But first you need to understand the essence of the document and what you need to follow to resolve the problem.

How to correctly cancel a court order to collect a debt from a magistrate

Below we will tell you about the procedure for canceling a court order and the rules for collecting debt. The algorithm of actions will be the same for all types of collected debt: for loans from microfinance organizations and loan obligations from banks, for taxes, etc.

Moreover, the judge will even cancel the child support order if the parent raises objections. The defendant can be refused only if the deadline is missed.

How to find out about the order or get a copy of it

This will be important in determining the deadline for cancellation. The Code of Civil Procedure of the Russian Federation indicates that the judge is obliged to send a copy of the order to the defendant no later than 3 days after its issuance. A copy of the document will be sent by mail. The judge will take the debtor's address from the claimant's application.

ATTENTION! The judge will actually take the claimant at his word. This means that if the address is entered incorrectly, the letter may be sent to the wrong address. Accordingly, this may lead to missing the deadline for challenging.

The debtor can find out about the issuance of a judicial act in the following ways:

from a copy of the order sent by mail;
from the materials of enforcement proceedings, from the bailiff’s resolution;
from the case file on the website of the judicial authority;
from the Data Bank on the FSSP website.

Only in the first case from the list of these reasons is it quite easy to meet the cancellation deadline. The period will be counted from the date of receipt of a copy of the court document. In other situations, most likely, the deadline will have to be restored. To do this, it is important to confirm the date on which the defendant became aware of the existence of the order.

If the defendant did not receive a copy of the order by mail, then this fact will need to be reflected in the objections. It is also necessary to provide a document or information about the date when the debtor became aware of the issuance of a judicial act. For example, this could be a bailiff's order, a bank statement about writing off money from a card, or other evidence. Based on them, the judge will decide to restore the deadline for cancellation.

Which court should I go to?

Where to file objections to cancel the order? This document must be sent to the court that issued the document. Its name can be clarified by the contents of the order. The address of the world site can also be found through the GAS “Justice” platform.

Otherwise, you need to act when appealing a court order that has entered into legal force. To do this, you will have to prepare and send a complaint to the cassation office. There are cassation boards at the courts of regions, territories, and republics within the Russian Federation. To consider the cassation appeal, case materials will be requested from the magistrate's court.

How to formulate objections correctly

To achieve cancellation of the order, it is necessary to send objections in a timely manner. The Code of Civil Procedure of the Russian Federation does not contain any special requirements for the content of this document.

To exercise the right of cancellation, please indicate in the document:

the name of the magistrates' area where the act was issued;
case number and date of issue;
information about the applicant and claimant;
a brief description of the requirements for which the order was issued;
an indication of disagreement with the issuance of the act (possible without specifying or justifying the reasons);
petition to set aside the order;
date, signature of the applicant or his representative.

Cancellation of a court order is carried out upon the objections of the debtor.
The period for cancellation is 10 days from the date of receipt of a copy of the judicial act. If the order comes into force, its cancellation is allowed on a cassation appeal.

It is not necessary to describe in detail all the reasons for disagreement with the order. It is enough to indicate the details of the judicial act and the phrase “I do not agree with the extradition...”. This will be grounds for cancellation.

Sample objections

There is no standard form of objections and complaints in the Civil Procedure Code of the Russian Federation and other regulations. You can find and download samples of these documents on our website.

Petition to restore the deadline for canceling the court order (17.8 KB)

If you do not have experience filling out documents for the court, you can use the help and advice of our lawyers.

What are the deadlines for cancellation?

You can challenge and cancel an order within 10 days. This is the deadline established for filing objections, and it begins to count from the moment a copy of the court act is received. If the specified period of time is missed, you can try to restore it.

When restoring, you can refer to:

for valid reasons that resulted in untimely cancellation (for example, long-term treatment in the clinic);
for non-compliance with the rules for notification of an order (for example, if the judge did not send a copy of the document at all, or the letter indicated an erroneous address);
to other objective circumstances that led to a delay in time (for example, if the post office did not deliver the letter, but returned it to the court site).

To restore the deadlines, it is important to complete and submit a separate application. Based on the results of consideration of the application, the court will issue a ruling and restore the necessary time for filing the document. After this, the arguments regarding the issuance of the order will be immediately considered. If restoration is refused, an appeal can be sent to the district court.

Judicial practice is loyal to the restoration of deadlines for canceling orders addressed to individuals. This eliminates the mistake that can be made when issuing a judicial act. It is better to cancel the order and give the parties the opportunity to resolve the dispute in a lawsuit than to deprive the defendant of the right to defense. However, if deadlines are missed without good reason, the judge may issue a refusal.

Actions of the judge

The defendant can submit documents for cancellation at a personal appointment with the judge or send them by mail. You can send a document electronically through the court’s website or the State Automated System “Justice” platform. There is an online service “Electronic Justice”, where you can work using an electronic digital signature or a government services account. You simply cannot submit a document by email, since it is impossible to identify the applicant.

Based on the document from the debtor, the judge is obliged to perform the following actions:

check whether the cancellation deadline has been met;
cancel a previously issued judicial act with a ruling;
send a copy of the ruling to the parties by mail.

The Code of Civil Procedure of the Russian Federation does not specify the time limit for consideration of objections. It is understood that the judge is obliged to immediately cancel the previously issued document and notify the parties accordingly. The applicant must send a response within 3 days. If the judge does not cancel the order, his decision can be appealed to a higher authority.

Questions from our readers

Is it possible to cancel a court order if the debt is not collected from the owner?
Debt collection must be carried out from the owner of the residential premises, as well as persons registered in the apartment under joint and several liability. If money is demanded from a citizen living in a residential premises, then it will also be necessary to cancel the court order by filing an objection.

If a person has changed their registered address at the time the order is issued, this fact will need to be confirmed in court. You can attach a certificate of registration.

If you are registered at this address, but live elsewhere, you can provide a rental agreement and witness statements. You can also submit to the court receipts confirming that the citizen paid for housing and communal services at the new address. When moving to another city, an employment or civil law contract is attached, in accordance with which work activities are carried out.

Is it possible to cancel a court order if there are errors in it?

Sometimes mistakes are made in a court order. If the data of the citizen from whom the debt is being collected (full name, date of birth) is correct, then enforcement proceedings will be carried out. If a citizen does not agree with the decision, he must file an objection.

If there is an error in the residential address (incorrect address), an objection must be filed. It will be necessary to prove that the citizen does not live in the apartment for which the debt is recorded.

If a technical error is made, it does not change the essence of the document. You can also file an objection against it.

Who can initiate?

The person obligated for alimony can initiate the cancellation of the order. An objection is filed exclusively to issued, and not intended, orders of the judge (Article 121 of the Code of Civil Procedure of the Russian Federation). The application must be submitted in writing. Filing an objection is grounds for termination of writ proceedings.

If the order is canceled, it becomes necessary to proceed through a lawsuit, initiated by the recipient of alimony. In this case, one of the requirements may be the condition for calculating alimony - from the moment the writ proceedings are opened.

Deadlines for appeal

In the case of the abolition of a judicial act on the part of the alimony obligee, special attention is paid to compliance with the deadlines established by the Code of Civil Procedure of the Russian Federation.
An objection to the joint venture for the collection of alimony is filed within 10 days. The nature of the refutation does not matter, because writ proceedings imply the absence of a dispute. But in this case this is not the case. Now the case is subject to consideration in court by filing a statement of claim. It is difficult to determine a specific date for the entry into force of a court order, because there are rules for calculating the period depending on the situation. In general, the following sequence is provided:

receiving a document for signature;
receipt of the relevant notification to the court;
countdown of 10 days;
transfer of the case to the FSSP.

Alimony payments are calculated from the moment the court decision is issued, and not from the beginning of the case. production. The fact is that parental obligations to provide financial support for children are subject to priority execution.

The deadline for objections begins from the moment the payer is notified by sending a registered letter.

The joint venture acquires the status of delivered when:

the alimony obligee signed confirming receipt of the paper;
the letter was delivered to family members;
the debtor's absence from the place of residence is recorded (return of the counterfoil);
The payer refused to receive the document, but he was notified orally.

The reluctance of the alimony obligee to receive a court order presupposes the impossibility of appeal.

Restoring the deadline

The result of failure to comply with procedural deadlines is the impossibility of exercising the right to cancel the joint venture. The restoration process is permissible if there is a good reason that prevents a timely appeal to the court.

The renewal of the period is carried out in cases where the alimony obligee:

was sick (was receiving inpatient treatment at a medical institution, which is confirmed by a corresponding certificate);
was outside the state border of the country;
did not receive a judicial act at all.

The grounds also include the situation when the document was received by an unauthorized person. The judicial authority considers each specific case, taking into account all the circumstances of the case.

The 10-day period missed without good reason cannot be restored.

State fee for appeal

An application with documents is submitted without a fee. They only pay for going to arbitration if the magistrate court refuses to revoke the order. Then the state duty is 300 rubles, according to Art. 333.19 Tax Code of the Russian Federation.

Despite the undeniability of the claims, there is no need to give up or worry when receiving a notification. The main thing is to quickly submit a correctly written objection to the court order from the housing and communal services sector according to the sample and competently protest the position of the Criminal Code.

Watch the video: “How can you cancel a judge’s order to collect debt for housing and communal services.”

What else to read:

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Consequences of the entry into force of a court decision

The management company must also provide justification for issuing the document.

However, it is easier for the creditor to do this, since a statement is sufficient, which indicates:

name of the court;
information about the organization;
debtor data;
history of the debt and its relevance - attached documents;
an agreement with a housing and communal services company, which allows you to demand payment.

If doubts arise regarding the license to operate a management company, the court may return the application, in accordance with Art. 125 Code of Civil Procedure of Russia.

If all the necessary papers are available, then a fairly small number of receipts for the latest billing periods. The court order is issued in 2 copies. The first is handed over to the plaintiff, a copy is sent to the debtor in the form of a notice. The second one is certified by the official seal and sent to the local bailiff department.

This gives FSSP employees the right to:

seize property owned by the defaulter, including real estate;
initiate blocking of bank accounts - withdrawing money from them will be prohibited, funds will be written off to pay off the debt;
limit travel abroad.

Execution of measures involves full collection of debt. A court order alone, if it is not challenged in a timely manner, is enough to authorize bailiffs to carry out a list of restrictive actions.

In what cases is an order issued?

Note: if you miss the 10-day deadline, even the situation of a low-income parent or a parent with many children will not help.

Grounds for cancellation

Cancellation of the joint venture involves the procedure for protesting the document by the alimony obligee.
To do this, you need to draw up an application and submit it to the court. The sequence of actions is indicated by the Code of Civil Procedure of the Russian Federation. To cancel a judge’s order to collect alimony, the payer must indicate significant reasons:

Health problems (disability):
serious illness, supported by medical certificates and opinions of qualified employees of the Ministry of Health institutions;
injury and other circumstances.
Low level of financial well-being:
unemployment.
Having other minor dependents.
Circumstances proving the unreliability of the legal representative of a minor child.
Reasonable suspicions about the validity of established paternity, the need for genetic research (DNA test).

This list is not exhaustive and is subject to broad interpretation. All circumstances specified in the application will be objectively considered by the court within its competence.

Cancellation of alimony for wife maintenance

Objection to the statement of claim for the recovery of alimony

What to do if the deadline is over?

In accordance with Article 112 of the Code of Civil Procedure of the Russian Federation, a citizen has the right to restore the deadline for appeal.
He must confirm that there are good reasons for this. A petition to restore the deadline is sent to the court that issued the court order. Along with it, documents confirming the validity of the reasons are transferred.

These include:

a copy of the sick leave certificate - in case of illness of the citizen himself or his relatives;
death certificate - upon the death of a relative;
travel certificate - when leaving during the period of appeal against a business trip;
ticket, voucher - when traveling outside the city.

You can also refer to the testimony of witnesses. Along with the application to restore the deadline, a petition to cancel the decision is also sent.

What's the best way to send it: by mail or directly to court?

If a lot of time has passed since the court order was issued, and you learned about its issuance after receiving a decision to initiate enforcement proceedings, then there is no difference in how you send objections to the court order.

With the exception of

The fact that you are interested in its speedy cancellation and termination of enforcement proceedings.

For example, the bailiff managed to seize your accounts and you cannot use them.

Then it is better not to send objections by mail and submit them directly to the magistrate.

If from the moment

After only a few days have passed since you received a copy of the court order, you can send objections to the court order by mail - then they will be received by the magistrate before the expiration of the established 10-day period and there will be no problems.

There are only a few days (1-4) left before the deadline for filing objections, so it is better to submit your objections to the court order directly to the court district of the magistrate.

If you don't do this

There is a possibility that the magistrate will have time to send the court order to the bailiff service.

Then, after canceling the court order by the magistrate, you will have to submit an application for termination of enforcement proceedings to the bailiff service.