Complaint against the ruling to cancel the court order - OJSC `shchzhkh`

A court order may be canceled by the court that issued it at the request of the debtor within twenty days from the date of its issuance, if the debtor proves that for good reason he did not have the opportunity to state his objections to the applicant’s request. The applicant retains the right to consider his claim in a lawsuit.

If the cancellation of the court order is refused, the debtor may appeal the refusal decision in cassation.

According to Part 2 of Art. 1251 Code of Civil Procedure the court order is valid writ of execution, collection on it is carried out in the manner prescribed for the execution of court decisions, but special attention deserves the fact that the legislation establishes a ten-day period, after which collection is made. This means that by the debtor’s application to cancel the order, which is submitted within twenty days, the executive document is appealed on the merits and the debtor raises the question of canceling or, in any case, suspending the enforcement proceedings.

The order is canceled if the debtor, for good reason, did not have the opportunity to timely (i.e., within 20 days after notification of receipt of the application) raise his objections to the creditor’s claim.

Is it possible to check a court order on its merits? Such a check is obviously possible after the debtor, by a court ruling, is denied the cancellation of the court order. On this definition a private complaint may be submitted to them. Within the meaning of the law, such a complaint is filed with a higher court within the time limits provided for cassation appeal, i.e. within 10 days after the determination is made.

If the court of second instance cancels the ruling of the court that refused to cancel the court order, then, obviously, this should mean that, on the basis of the act of the court of second instance, the previously issued court order is recognized as not meeting the requirements of the law; in any case, the court ruling to refuse to cancel such a court order is recognized as illegal court order.

But this cannot mean that the court of second instance examines the court order on its merits, since it checks, in accordance with the exact meaning of the law, only the legality judicial determination courts of first instance. It was noted above that the court of first instance that issued the order can cancel it only on formal grounds, on the basis that, for good reason, the debtor missed the deadline for submitting objections to the stated claims of the creditor.

It follows from this that the merits of a court order cannot be verified on the basis of statements by the debtor (defendant). The creditor, in any situation in the case, including after the cancellation of the ruling of the court of first instance to refuse to cancel the court order, retains the right to file a claim demanding that the case be considered in a lawsuit. The decision made on the claim can be appealed; in this case, the case is examined on its merits by the court of second instance.

Questions to prepare for practical (seminar) classes

1. Give general characteristics writ proceedings: its difference from claim and notarial proceedings.

2. List the requirements for which an order can be issued.

3. What are the procedures for issuing an order and appealing it?

4. What is the execution of a court order?

APPEAL DECISION

Shchekinsky District Court of the Tula Region, consisting of:

presiding Alekseeva T.V.,

under secretary Zelenkova N.N.,

with the participation of the applicant-debtor Danilova N.V.,

bailiff of the OSP of the city of Shchekino and Shchekinsky district - Sidorova T.A.,

having considered in an open hearing on the premises of the court a private complaint against the ruling of the magistrate of court district No. 83 of the Shchekinsky district of the Tula region dated January 11, 2011 on the cancellation of the court order,

installed:

08/12/2008, the magistrate judge of judicial district No. 48 of the Shchekinsky district of the Tula region, acting as magistrate judge of judicial district No. 83 of the same judicial district for the period of the vacancy of the position, with Traeva V.Yu. and Danilova N.V. in favor of the Shchekinskoe Housing and Public Utilities MP, the rent arrears and public services for the period from December 1, 2005 to June 30, 2008 inclusive in the amount <данные изъяты>. and state duty in the amount <данные изъяты>., paid by the applicant when filing an application for a court order.

The court order is being executed.

11/25/2010 to court district No. 83 of the Shchekinsky district of the Tula region from the debtor Danilova N.V. an application was received to cancel the said court order on the grounds of payment of a debt in the amount <данные изъяты>. 03/14/2006. At the same time, the debtor filed a petition to restore the missed procedural deadline for filing objections regarding the execution of the court order.

By the ruling of the magistrate dated December 8, 2010, the deadline for filing objections regarding the execution of the court order by Danilova N.V. restored, specified definition in appeal procedure not appealed.

By a ruling dated January 11, 2010, the magistrate judge of judicial district No. 83 of the Shchekinsky district issued a court order dated August 12, 2008 to recover from Traev V.Yu. and Danilova N.V. jointly and severally in favor of the Shchekinskoe Housing and Public Utilities Enterprise for arrears of rent and utilities for the period from 12/01/2005 to 06/30/2008 inclusive in the amount <данные изъяты>. and state duty in the amount <данные изъяты>but in total <данные изъяты>. canceled. The claimant was explained the right to apply to the court with the same claim in the manner of claim proceedings. The execution has been rotated court decision by collecting from in favor of Danilova N.V.<данные изъяты>

In a private complaint, the applicant-collector OJSC Shchekinskoe Housing and Public Utilities asks the specified ruling of the magistrate to cancel the court order to be cancelled, and the case to be transferred for consideration to the same court. In support of the arguments of the private complaint, it was referred to the fact that, in violation of the requirements of Part 2, the application for restoration of the missed procedural deadline was considered without notifying the claimant. In addition, since the debt in the amount <данные изъяты>was collected from the debtors jointly and severally in favor of the bailiff service, the claimant has no grounds to go to court with the same claim in the manner of claim proceedings.

IN court hearing court of appeal, applicant-debtor Danilova N.V. requested the ruling of the magistrate dated January 11, 2011 on the cancellation of the court order to be left unchanged, and the private complaint of ShchZhKH OJSC to be left unsatisfied.

Bailiff Sidorova T.A. objected to the satisfaction of the private complaint.

The representative of the claimant OJSC Shchekinskoe Housing and Public Utilities did not appear at the court hearing of the appellate court and asked in writing to consider the case in his absence.

Having listened to the persons who appeared and examined the written materials presented, the appellate court comes to the following conclusion.

By the ruling of the magistrate of judicial district No. 83 of the Shchekinsky district dated November 26, 2010, to consider the application of Danilova N.V. to restore the deadline for filing objections regarding the execution of the court order, a court hearing was scheduled for 09:00. 30 min. 08.12.2010 (case sheet 16).

The representative of the claimant, JSC Shchekinskoe Housing and Public Utilities, was duly notified of the time and place of the said court hearing, as evidenced by the receipt in the case for receipt of the summons (case sheet 24)

Thus, the argument of the representative of Shchekinskoe Housing and Public Utilities OJSC that the claimant was not notified of the consideration of N.V. Danilova’s application. on the restoration of the missed procedural deadline for filing objections regarding the execution of the court order, contained in the private complaint, was not confirmed in the court hearing of the appellate court.

The appellate court finds that at the court hearing on December 8, 2010, the statement of N.V. Danilova. the restoration of the deadline for filing objections regarding the execution of the court order was reasonably considered by the magistrate in the absence of the representative of the claimant OJSC Shchekinskoye Housing and Public Utilities, since the provisions allow consideration of the issue of restoring the missed procedural deadline in the absence of persons participating in the case, notified of the time and place of the court settlement .

When resolving the application to cancel the court order, the magistrate was reasonably guided by the provisions of Art. Art. 128, 129 Civil Procedure Code Russian Federation, according to which the debtor has the right to submit objections regarding its execution within 10 days from the date of receipt of a copy of the order. The judge cancels the order if objections regarding its execution are received within the prescribed period.

Taking into account that objections regarding the execution of the court order were filed by one of the joint and several debtors on time, as well as the fact that, on the basis of this court order, Danilova N.V. through the bailiff service it was recovered in favor of OJSC Shchekinskoye Housing and Communal Services <данные изъяты>., the magistrate, having canceled the said court order, correctly applied the provisions of Art. Art. 443, 444 of the Code of Civil Procedure of the Russian Federation on the reversal of the execution of the canceled court order, having recovered the specified amount from OJSC Shchekinskoe Housing and Communal Services in favor of Danilova N.V.

At the same time, the magistrate, in accordance with the provisions, explained to the claimant his right to file the same claim in the manner of claim proceedings.

The appellate court believes that the rules procedural law when issuing a ruling dated January 11, 2011, canceling the court order dated August 12, 2008 to recover V.Yu. Traev. and Danilova N.V. jointly and severally in favor of the Shchekinskoe Housing and Public Utilities Enterprise for arrears of rent and utilities for the period from 12/01/2005 to 06/30/2008 inclusive in the amount <данные изъяты>and state duty in the amount <данные изъяты>., but in total <данные изъяты>applied correctly by the magistrate.

Considering the above, the court believes correct definition The magistrate dated 01/11/2011 was left unchanged, and the private complaint of Shchekinskoe Housing and Public Utilities OJSC was not satisfied.

Guided by Art. Art. 333, 334, 335 of the Code of Civil Procedure of the Russian Federation, the court determined:

the ruling of the magistrate of judicial district No. 51 of the Shchekinsky district of the Tula region dated January 11, 2011 is left unchanged, the private complaint of Shchekinskoe Housing and Communal Services OJSC is not satisfied.

The definition comes into play legal force from the date of its adoption.

Magistrate Judge FULL NAME2

<номер>

APPEAL DEFINITION

<дата><адрес>

Oktyabrsky District Court<адрес>UR consisting of:

presiding Frolova Yu.V. with secretary FULL NAME3

having considered in open court a civil case at the request of the Federal Tax Service<адрес>to FULL NAME1 about issuing a court order to collect arrears of income tax individuals, penalties and private complaint of the debtor FULL NAME1 to DEFINITION <адрес>FULL NAME2 on refusal to cancel the court order,

installed:

<дата>Federal Tax Service Inspectorate<адрес> <адрес>FULL NAME2 with an application for the issuance of a court order to collect arrears of personal income tax, penalties from FULL NAME1.

<дата> <адрес>FULL NAME2 issued a court order to collect the arrears of personal income tax, penalties from FULL NAME1.

<дата>debtor FULL NAME1 appealed to the magistrate of the court district<номер>with an application to cancel the court order due to the presence of objections.

<дата>The magistrate rejected the application of the debtor, FULL NAME 1, to cancel the court order due to the fact that they were filed in violation of the 10-day deadline and there were no reasons to justify his absence.

<дата>a private complaint was received from the debtor FULL NAME1, in which he asks to cancel DEFINITION Magistrate judge of court district No.<адрес>and cancel the court order from<дата>Debtor FULL NAME1 motivates his demands by the fact that he did not receive the court order personally because, during the period from<дата>By<дата>he was located and lived in<адрес>and did not have the opportunity to timely appeal to the magistrate to cancel the court order.

Debtor FULL NAME1, being duly notified of the date, time and place of the court hearing, did not appear and did not provide any reasons for the failure to appear to the court.

The representative of the defendant - FULL NAME4, acting on the basis of a power of attorney, supported the arguments set out in the private complaint, asked the court to cancel DEFINITION Magistrate judge of court district No.<адрес>.

The representative of the collector - FULL NAME5, acting on the basis of a power of attorney, did not object to the debtor's arguments.

Having listened to the opinion of the persons involved in the case, having studied the private complaint, the documents attached to it, and the materials of the civil case the court comes to the following.

<дата>Federal Tax Service Inspectorate<адрес>appealed to the magistrate of court district No.<адрес>FULL NAME2 With an application for the issuance of a court order to collect arrears of personal income tax, penalties from FULL NAME1.

<дата>magistrate judge of court district No.<адрес>FULL NAME2, the application was considered and a court order was issued to collect arrears of personal income tax, penalties from FULL NAME1

The court order was sent to the registration address of the debtor, FULL NAME1:<адрес>.

<дата>The court order was received by the debtor and the return notification is signed “Full Name1”. (ld. 30)

In accordance with Article 57 of the Code of Civil Procedure of the Russian Federation, the court requested information from the post office<номер>with a request to clarify who exactly received the court order addressed to the debtor FULL NAME1

According to the answer<номер>.67.01-14/1908 from<дата>It is reported that the court order is addressed to FULL NAME1 with the address:<адрес>arrived at the post office<дата>and handed over<дата>wife FULL NAME1 upon presentation of a passport proving her identity.

According to Article 128 of the Code of Civil Procedure of the Russian Federation, the judge sends a copy of the court order to the debtor, who, within ten days from the date of receipt of the order, has the right to submit objections regarding its execution.

Thus, from the essence of the specified norm it follows that the delivery of a copy of the court order presupposes the personal receipt of a copy of the court order by the debtor.

According to Article 129 of the Code of Civil Procedure of the Russian Federation, the judge cancels the court order if the debtor raises objections regarding its execution within the prescribed period.

An application for cancellation of the court order by the debtor FULL NAME1 was submitted to the magistrate outside the 10-day period.

According to the certificate<номер>from<дата>Full name1 During the period from<дата>By<дата>lived in the “Arctic” hotel complex, owned by Naryan-Marktorg LLC at the address: Nenetsky autonomous region, <адрес>, ne<адрес>number 5.

Location of the debtor FULL NAME1 during the period from<дата>By<дата>is also confirmed by air tickets from<адрес>in<адрес>And<адрес>V<адрес>. (ld. 39,40).

Taking into account the above, debtor FULL NAME1 did not have the opportunity to personally receive a copy of the court order, since on the date of receipt of the court order<дата>was outside the Udmurt Republic.

In accordance with Article 334 of the Code of Civil Procedure of the Russian Federation, the appellate court has the right, checking the case in full, to find out the legality and validity of the private ruling made in the case and, if it determines that it was ruled erroneously, to cancel it.

According to Article 330 of the Code of Civil Procedure of the Russian Federation SOLUTION The decision of the magistrate may be canceled or changed on appeal on the grounds provided for in Articles 362 - 364 of the Code of Civil Procedure of the Russian Federation.

According to Article 364 of the Code of Civil Procedure of the Russian Federation, a violation or incorrect application of the rules of procedural law is grounds for canceling a decision of the court of first instance only if this violation or incorrect application led or could lead to an incorrect resolution of the case.

However, when making a determination from<дата>about leaving the application of the debtor FULL NAME1 to cancel the court order without satisfaction, the debtor was instructed to restore the deadline upon providing evidence of the reasons for the missed deadline. Debtor FULL NAME1 evidence of valid reasons for missing the deadline was not presented to the magistrate.

According to Article 327 of the Code of Civil Procedure of the Russian Federation, the consideration of the case by the court of appeal is carried out according to the rules of proceedings in the court of first instance. The court has the right to establish new facts and examine new evidence.

Since the debtor, FULL NAME1, presented valid reasons for missing the deadline for filing an application to cancel the court order, the court comes to the conclusion that the application to cancel the court order by the debtor FULL NAME1 was filed outside the period established by law, and the court recognizes valid reasons for missing it due to circumstances that objectively exclude the possibility of filing an application.

Thus, the private complaint of the debtor FULL NAME1 is subject to satisfaction, DEFINITION Magistrate judge of court district No.<адрес>FULL NAME2 is subject to cancellation.

Based on the above, guided by Article 324, 224-225 of the Code of Civil Procedure of the Russian Federation, the court

O P R E D E L I L:

Private complaint of the debtor FULL NAME1 about the cancellation of the ruling from<дата>to leave the application to cancel the court order is granted.

DEFINITION Magistrate judge of court district No.<адрес>FULL NAME2 about leaving the application FULL NAME1 about canceling the court order without satisfaction cancel.

Cancel the court order from<дата>court precinct no.<адрес>on the collection of arrears of personal income tax and penalties from FULL NAME1.

Appeal DEFINITION comes into force on the date of its adoption.

Judge Yu. V. Frolova