Response to the application to cancel the court decision. Application to cancel the default decision of the magistrate

To the Podolsk City Court of the Moscow Region

Plaintiff: Romanov Oleg Yurievich

142150, Moscow region, Podolsk, st. Sovetskaya, house 152, building 2, apt. 301.

Plaintiff's representative: Barkhanov Vasily Anatolyevich,

Tel. for contact 8-916-943-88-99

Respondent: Limited Liability Company "Residential Complex "Vesenny" (TIN 5003096638).

Address: 142702, Moscow region, Leninsky district, Vidnoye, st. Vokzalnaya, 54,

Response to the defendant’s application to cancel the court decision in absentia

The defendant asks to cancel the court decision in absentia, citing participation in another trial.

The plaintiff does not agree with the arguments of the complaint for the following reasons:

Preparation of the case for trial was scheduled for November 10, 2015. The defendant’s representative was present during the preparation of the case for trial. Had the right to provide a response to the statement of claim. The defendant was notified of the date of the main hearing , about which there is a receipt in the case materials.

The main meeting took place on November 25, 2015, that is, 2 weeks after the preliminary one. The defendant had enough time to file a motion to postpone the trial , however, this was not done.

All hearings are scheduled in advance and the defendant should have known at least a week in advance about the upcoming hearing in the Vidnovsky court. In addition, it is not clear on what basis the Vidnovsky court was chosen and not the Podolsky court.

The defendant is the largest legal entity, has a large staff and has the right to have several lawyers. And a representative of the defendant without a legal background could submit a motion to the court to postpone the court hearing.

The defendant did not provide valid reasons preventing his appearance at the trial.

The defendant did not provide evidence that he could not have filed a motion to postpone the trial in advance.

The defendant did not provide evidence of telephone communication failures.

The defendant did not present evidence that could influence the court's decisions.

According to Article 242 of the Code of Civil Procedure of the Russian Federation, a court decision in absentia is subject to cancellation if the court determines that the defendant’s failure to appear court hearing was caused by valid reasons, which he was not able to inform the court in a timely manner, and in this case the defendant refers to circumstances and presents evidence that may affect the content of the court's decision.

Judge Timofeeva A.M.

Judge-reporter Nikolaeva T.V. In case No. 33-10923/11

DEFINITION

Judicial Collegium for Civil Cases of Irkutsk regional court composed of: presiding judge Orlova E.Yu.,

judges: Alexandrova M.A., Nikolaeva T.V.,

under the secretary of T.V. Arbatskaya,

Having considered in open court the private complaint of Nezhivlyak E.A. to the ruling of the Kirovsky District Court of Irkutsk dated May 23, 2011 to refuse Nezhivlyak’s application E.A. about cancellation default judgment Kirovsky District Court of Irkutsk dated June 28, 2010 civil case according to the claim KPKG " R." to Skripnik Yu.A., Nezhivlyaku E.A., Department of the Federal Migration Service for the Irkutsk Region in P. district of Irkutsk on recognition of the termination of the right to use residential premises, eviction from residential premises, deregistration,

INSTALLED:

By absentee decision of the Kirovsky District Court of Irkutsk dated June 28, 2010, claims KPKG " R." satisfied.

Defendant Nezhivlyak E.A. appealed to the court with an application to cancel the specified court decision in absentia, indicating in support that the notification of the time and place of the court hearing to consider statement of claim, scheduled for June 28, 2010, was not received and was not properly notified. In addition, the court did not fully examine the circumstances of the conclusion of the transaction - an agreement on mortgage (pledge of real estate), under the terms of which Skripnik Yu.A. handed over to KPKG " R." pledge G.I.V. under a loan agreement "number is anonymous" from "the date is impersonal." The applicant believes that this transaction is null and void, and the default court decision of June 28, 2010 is subject to cancellation.

At the court hearing Nezhivlyak E.A., Skripnik Yu.A., representative of the Department of the Federal Migration Service for the Irkutsk Region in P. district of Irkutsk did not appear.

Representative of the defendants Nezhivlyak E.A. and Skripnik Yu.A. Khromenkov S.I. supported the arguments set out in the application, considered them to be satisfied, and the court's default decision of June 28, 2010 to be cancelled.

Representative of the plaintiff KPKG " R." Budnikov K.Yu. objected to the satisfaction of the application of Nezhivlyak E.A. on the cancellation of the absentee decision of the Kirovsky District Court of Irkutsk dated June 28, 2010. In support of his objections, he indicated that Nezhivlyaku E.A. was aware of the consideration of the claim of the KPKG " R.”, therefore, he could exercise his right to defense. In addition, the court was not presented with evidence that could affect the essence of the decision and could lead to the reversal of the court's decision.

By the ruling of the Kirovsky District Court of Irkutsk dated May 23, 2011, the statement of Nezhivlyak E.A. the cancellation of the absentee decision of the Kirovsky District Court of Irkutsk dated June 28, 2010 was left unsatisfied.

In a private complaint Nezhivlyak E.A. raises the question of cancellation this definition court, considering it illegal and unfounded.

In support of the arguments of the complaint, it points out that the court did not fully examine the circumstances of his missing the deadline during which he could file an application for review of the default decision, and therefore, this deadline is not missed. The court's refusal to cancel a default judgment actually prevents the defendant from exercising the right to defense provided for in Art. 46 of the Constitution Russian Federation, art. 13 of the European Convention for the Protection of Human Rights and Fundamental Freedoms - the right to effective judicial proceedings by an independent and impartial tribunal.

In addition, the court did not fully examine the circumstances of the conclusion of the transaction - an agreement on mortgage (pledge of real estate) under the terms of which Skripnik Yu.A. passed on KPKG " R." pledge "data seized" room apartment at the address: "address is impersonal" to ensure fulfillment of obligations G.I.V. under a loan agreement "number is anonymous" from "the date is impersonal."

No written objections to the private complaint were received.

Having heard the judge’s report, the conclusion of prosecutor A.L. Malinovskaya, who considered the court’s ruling legal and justified, having studied the case materials, judicial panel finds no grounds to cancel the court's ruling and satisfy the private complaint.

In refusing to cancel the default judgment, the court proceeded from the fact that Nezhivlyak E.A. was personally notified of the court's consideration of this case on June 28, 2010, did not provide evidence of valid reasons for failure to appear at the court hearing, and did not provide evidence that could affect the content of the court's decision.

The court's conclusions are motivated in detail and correspond to the case materials and requirements.

In accordance with the default judgment, the court decision is subject to cancellation if the court establishes that the defendant’s failure to appear at the court hearing was caused by valid reasons, which he was not able to inform the court in a timely manner, and the defendant refers to the circumstances and presents evidence that may affect the content court decisions.

According to the given legal norm When applying to cancel a default judgment, the applicant must provide evidence not only of the validity of the reasons for failure to appear at the court hearing, but also provide arguments against the claim, indicating the unfoundedness of the decision. And only in the aggregate the above circumstances entail the cancellation of the default judgment.

As follows from the case materials and established by the court, Nezhivlyak E.A. knew about the consideration of this case, and was personally notified of the date of the court hearing on June 28, 2010 by telegram.

Any evidence confirming the presence of a set of circumstances under which the procedural law allows the cancellation of a default judgment, neither in the application, nor in the court of first instance, nor in the private complaint of Nezhivlyakomi E.A. not given.

The arguments of the private complaint that the court did not examine the circumstances of the valid reasons for missing the deadline for filing an application for review of the decision in absentia are not taken into account by the judicial panel, since the statement of Nezhivlyak E.A. The court adopted a decision to cancel the default judgment and considered it on its merits.

Thus, the judicial panel does not see any grounds for satisfying the private complaint and canceling the court’s ruling to refuse to cancel the default judgment.

Based on the above, guided by paragraph. 2, judicial panel,

DEFINED:

ruling of the Kirovsky District Court of Irkutsk dated May 23, 2011 refusing to satisfy Nezhivlyak’s application E.A. on the cancellation of the absentee decision of the Kirovsky District Court of Irkutsk dated June 28, 2010 in this civil case, leave unchanged, the private complaint - without satisfaction.

To the Khoroshevsky District Court of Moscow
Judge Lutina R.A.
123554, Moscow, st. Tukhachevsky, house 25.

Applicant: Interregional public organization on consumer rights protection “Legal Awareness”,

in defense of the interests of Irina Aleksandrovna Rabina, Russian Federation passport 75 65 5046778, issued on April 15, 2004, Department of Internal Affairs of the Shchukino district of Moscow, registration and residence address: Moscow, st. Nevelskogo 11, apt. 51.

Defendant: Auto Paris LLC,
OGRN - 10250470673520, TIN 504570799020,
address: 145400, Moscow region, Vidnoye, 94th km of MKAD, no. 67.

Civil case No. 2 - 1483/12

Objection to an application to cancel a court decision in absentia

On January 17, 2013, the Defendant filed an application to cancel the court's default judgment in case No. 2-1483/12 dated November 26, 2012. We believe that this application cannot be satisfied for the following reasons.

In accordance with Art. 242 of the Code of Civil Procedure of the Russian Federation, the basis for canceling a court decision in absentia is the mandatory presence of two circumstances:

1. The defendant’s failure to appear at the court hearing was caused by valid reasons, which he did not have the opportunity to inform the court in a timely manner.

2. The defendant presents evidence to the court that may influence the content of the court decision.

For the first reason, please pay attention to the following. The defendant was duly notified of the date, place and time of the court hearing (case file 104). A certificate was submitted to the court, according to which the defendant believes that the absence of his representative at the court hearing on November 26, 2012 is valid (case file 174). We believe that this document cannot be evidence of the absence of a representative at the court hearing for a good reason due to the following circumstances:

Absence individual in court may be recognized as a valid reason in the event of his inability to work. Please note that in this lawsuit the defendant is entity, and not an individual, a legal entity cannot be disabled.

Temporary disability of an individual, in accordance with current legislation is confirmed only by a certificate of incapacity for work filled out in the prescribed form. The presented certificate is not a certificate of incapacity for work. Moreover, the certificate does not have the seal of the organization that issued it. It doesn’t even contain a record of temporary disability, as well as the time interval for which it was issued, and there are no contraindications to participation in the trial. It is impossible to accurately identify the person to whom this document was issued. These circumstances cast doubt on the very fact of the occurrence of the event referred to by the defendant.

From the documents submitted to the court, it is not clear whether it was Kibenko G.Yu. who was actually brought in by the defendant’s representative. to participate in the court hearing on November 26, 2012, since the power of attorney only provides the right to participate, but does not prove the fact that the defendant sent him to participate in the process on that day. I would like to draw your attention to the fact that in the case there is another power of attorney for the representative of the defendant - V.V. Anasyev, who could also be involved in the court hearing on that day (case file 94). The director of the company is also not deprived of the right to represent the interests of the defendant.

etc...

The entire sample of objections to the cancellation of a court decision in absentia is posted in the attached file.

In the World Court District No. ____ ___________ district of _________
Address: ___________________________
From: ___________________________
Address: _________________________

STATEMENT
on cancellation of default judgment

The Court of Peace No. ____ __________ district of the city ________ is in the process of civil case No. _______ on the claim of LLC CB "__________" to _____________________ for the collection of debt under the loan agreement No. ______________ dated _________
__________ in this case, the Magistrate _____________ made a default judgment in this case.
My failure to appear at the court hearing was due to the fact that I was not notified of the place and time of the trial.
If the case was considered in my presence, I intended to present evidence that would refute the plaintiff’s arguments and that could influence the outcome of the case.
For the purpose of a comprehensive, complete and objective consideration of the claim and adjudication legal decision the court will be presented with additional evidence to refute the stated claims, in particular, evidence will be presented that may affect the content of the adopted decision in absentia.
In accordance with Article 242 of the Code of Civil Procedure of the Russian Federation:
A court decision in absentia is subject to cancellation if the court determines that the defendant’s failure to appear at the court hearing was caused by valid reasons that he was unable to inform the court in a timely manner, and the defendant refers to circumstances and presents evidence that may affect the content of the court decision.
By virtue of Part 1 of Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms, everyone has the right to determine his civil rights and duties to a fair public hearing.
According to Part 1 of Article 46, Part 3 of Article 123 of the Constitution of the Russian Federation, everyone is guaranteed judicial protection his rights and freedoms. Legal proceedings are carried out on the basis of competition and equality of the parties.
The requirements of the procedural law regarding the need to serve copies of the statement of claim to the defendant and notices to all persons participating in the case within a period sufficient for a timely appearance in court and preparation for the case were violated. In the case materials there is only evidence of the mailing of a notice of a court hearing, which was returned due to non-delivery. Information about the direction and delivery to the Defendant of a copy of the statement of claim and the attached necessary documents, due to the Defendant in accordance with Art. 132 of the Code of Civil Procedure of the Russian Federation is not available in the case materials.
According to the provisions of the Resolution of the Plenum Supreme Court RF dated June 26, 2008 No. 13 “On the application of the norms of Civil procedural code of the Russian Federation when considering and resolving cases in the court of first instance" in the preparatory part of the trial it is necessary to establish whether persons who failed to appear were notified of the time and place of the court hearing in compliance with the requirements of the law on the need to serve copies of the statement of claim to the defendant and third parties and notices to all participants in the case persons within a period sufficient for timely appearance in court and preparation for the case (Articles 113, 114 of the Code of Civil Procedure of the Russian Federation). This period must be determined in each case, taking into account the place of residence of the persons participating in the case, their knowledge of the circumstances of the case, the ability to prepare for trial, as well as the complexity of the case.
In accordance with Art. 238 Code of Civil Procedure of the Russian Federation:
1. An application to cancel a court decision in absentia must contain:
1) the name of the court that made the decision in absentia;
2) the name of the person submitting the application;
3) circumstances indicating valid reasons for the defendant’s failure to appear at the court hearing, which he was not able to promptly inform the court about, and evidence confirming these circumstances, as well as circumstances and evidence that may affect the content of the court’s decision;
4) request of the person submitting the application;
5) a list of materials attached to the application.
2. An application to cancel a court decision in absentia is signed by the defendant or, if authorized, by his representative and submitted to the court with copies, the number of which corresponds to the number of persons participating in the case.
3. An application to cancel a court decision in absentia is not subject to state duty.
Based on the above and guided by current legislation:
ASK:
Cancel the default judgment on the claim of LLC CB "________________" k. ___________________ for the collection of loan debt and resume consideration of the case on the merits.
Application:
1. Copies of the application
2. Copy of the court decision - 2 copies.
"__"____________G. ___________