Debt collection order - a document issued by the court in the order of writ proceedings, which involves a simplified procedure for resolving a controversial situation. This procedure does not involve the parties to the dispute for consideration, the judge single-handedly resolves the issue, makes a decision, therefore very often unscrupulous plaintiffs use this procedure.
Legal basis
The concepts and foundations of a court order are spelled out in Articles 121–122 of the Code of Civil Procedure. Such a decision shall be made in the following cases:
- regarding the return or collection of debt, things;
- according to indisputable requirements;
- in claims whose value does not exceed 500 thousand rubles.
The order, in turn, is a document that can be immediately presented for execution to the bailiff.
Types of Requirements
A court order for the collection of debts may be issued under contracts that notaries have certified, in disputes regarding the payment of debts on alimony. In the field of labor relations - regarding non-payment (partial or full) or delay in payment of wages. The order is issued in case of accumulation of tax debt.
Effective Dates
The entry into force of the order is very short - only 10 days. It is counted from the moment the debtor receives the document. Courts send copies of orders by mail.
If the postal message is returned to the court with a mark on the expiration of the storage period or because of the refusal of the debtor to receive it, then the term for the entry into force of the document ends 10 days after the expiration of the storage period at the postal operator.
Is it possible to cancel?
Is it possible to cancel a court order? The debtor has 10 days to file his objections to the court decision. The main thing is that you do not even need to substantiate your objections. In accordance with Article 129 of the Code of Civil Procedure, the judge will regard the objection of the debtor as the indisputable basis for canceling the order.
However, the cancellation of the order is not a reason to cast doubt on the fact of the existence of debt obligations. Appeal to the court once again confirms that there is a dispute between the parties.
After the cancellation of the order, the collector has the right to appeal to the court in the proceedings. Naturally, the debtor raises the question: “If the claimant has such wide rights, then why object to the decision made?” In fact, objections give the debtor time to prepare for the trial, find evidence of his innocence or take measures to repay the debt or thing. In addition, if the case comes to court and the debtor loses, he has the right to prove his case in a higher court.
Procedure
Cancellation of the order occurs in 4 stages:
- writing objections, even without substantiating your position;
- sending objections to the court within two weeks from the moment of receipt of the order (it is best to do this through the office);
- consideration by the judge of the application and determination;
- upon the expiration of the effective date, if the recoverer wishes to apply to the court in general order to resolve the dispute, the recoverer shall receive a copy of the statement of claim.
The main reasons for missing 10 days
How to appeal a court order if it has already entered into legal force? It is not a secret that many debtors learn that the claimant appealed to the court already at the stage of execution of the order, that is, the deadline for filing objections has already been missed.
The deadline for appealing a court order is really short, but if there are good circumstances for missing it, the debtor retains the right to appeal. These circumstances include:
- military service;
- a disease that is not allowed to receive and compose, send objections;
- long business trip;
- change of residence and so on.
And the most common reason is not getting a copy of the order. However, it is necessary to prove this fact within 10 working days from the moment this reason disappeared, that is, the debtor received the document.
Cancellation Policy
If the deadline is missed, the debtor still retains the right to submit, but in parallel with the application for the restoration of the time limit for appealing the court order. This right is enshrined in article 112 of the Code of Civil Procedure. However, according to the provisions of this article, the applicant must have really good reasons, which must be highlighted in the application and enclose documentary evidence of the reasons given. Both requirements for both restoration and cancellation of a decision can be stated in one procedural document. If just objections are filed, without a request for the restoration of the missed deadline, then the judge will definitely make a decision on the refusal.
After accepting the application, the judge notifies the parties that he has accepted the application for consideration. At the same time, the claimant has the right to file objections to the debtor's statement.
If the debtor does not satisfy the decision of the judge, then he has the right to appeal it. In this case, a private complaint is filed, which must be sent to the court no later than 15 days from the date of the determination.
If the judge recognizes the validity of the reasons, he will make a decision on the restoration of the term and, as a result, this document will be the basis for the cancellation of the court order. However, such a decision does not deprive the claimant of the right to appeal to the court in the general manner, that is, with a lawsuit.
There are many positive court decisions on this issue. Some judges even reinstated 10 months after the order was issued.
Cassation procedure
How to appeal a court order? As stated in Chapter 41 of the Code of Civil Procedure, an order can only be appealed on appeal.
This will require a complaint, which should contain the following data:
- information about the authority where the document is submitted;
- details of the parties;
- details of the case given by the judge and his place of work;
- reasons why it was not possible to file objections on time;
- grounds that give the right to appeal against a judge’s actions, with reference to regulatory acts;
- the request itself to cancel the order;
- Applications
- date of compilation of the complaint, signature and its interpretation.
In accordance with the requirements of the Tax Code and the Civil Procedure Code, an appeal against a court order in this case is free of charge. It does not matter if the order entered into force or not.
How is the review?
It should be remembered that the basis for the annulment of the judgment in cassation is only significant violations by the judge, without which it is impossible to protect the violated rights and interests of the applicant.
The procedure for appealing against a court order does not imply calling the parties to a meeting. However, if the dispute cannot be resolved without the participation of the parties, then they can be brought personally to the consideration of the case. Although in practice it is very rare that parties are involved in a hearing.
As soon as the complaint is accepted, the parties have the right to submit written explanations or objections to the court.
If the order is already in the executive service?
How to appeal a court order if it has already ended up in the executive service? Any lawyer will confirm that in no case can you ignore excited enforcement proceedings, since such a position can lead to serious consequences.
If the debtor learned about the court order already at the stage of enforcement proceedings, then such a decision can be appealed exclusively in cassation proceedings. For the period of consideration of the complaint, the enforcement proceedings are usually suspended.
The term for appealing a court order in cassation is 6 months from the date the judge makes the relevant decision. Simply put, even the presence of open proceedings against the debtor does not at all mean that the order cannot be canceled.
Can I get a respite?
In fact, the question of how to appeal a court order is not always relevant. Many debtors do not object to a court decision, but when it is necessary to execute it, they are not able to execute it. In such cases, the debtor has the right to appeal to a judge with a request for deferral or installment plan. However, the statement will have to provide evidence of the impossibility of paying off the debt or returning the thing at a particular time.
The debtor has the right to even request a change in the method and procedure for the execution of the order. Although a judge is not required to grant such requests, this is only his right.
Conclusion
How to appeal a court order? If it has not entered into force, there are no obstacles. The debtor’s objections should not even contain justifications for the position, let alone documented evidence of rejection of the requirements.
However, a missed period is not a reason for refusing to protect one’s interests. Only in this case, together with the objections, it is necessary to file a request to restore the missed deadline. It is clear that you will have to confirm with written evidence that the deadline is valid. However, the judge retains the right to refuse the debtor. And the latter, in turn, has the right to appeal the decision to refuse to restore the missed period within 15 days from the date of such a decision by filing a private complaint.
If all these measures did not help or the debtor found out about the claims of the claimant already at the stage of the opening of the enforcement proceedings, you will have to write a cassation appeal. Such a statement justifies the incorrect application of the rules of procedural law by a judge. In any case, no matter at what moment the court order falls into the hands of the debtor, one does not need to despair, but to defend one’s interests, all the more so since the current legislation provides a rather wide range of opportunities.