It is no secret that a large half of debtors who turn out to be participants in a simplified procedure for the consideration of court cases (writ proceedings) agree with the claims of the plaintiff. But, there are situations when the claims are not entirely legitimate or the defendant needs to find evidence of his innocence and refute the unlawful claims. In this case, the latter has the right to submit an application to cancel the court order. This procedure allows you to stop the process of illegal collection. Or prepare for the trial, if there are suggestions that the collector will go to court in a lawsuit.
The basics and nuances
In fact, the objection procedure is to some extent obligatory for the defendant, who does not agree with the requirements. Applying is very simple, but you should be aware of some of the nuances. At the same time, you don’t need to worry that there was no notice of a court hearing, as part of the consideration of the case by order, as a rule, the parties are not invited.
Article 129 of the Code of Civil Procedure of the Russian Federation states that objections filed on behalf of the debtor are an unconditional basis for terminating the court order. They can refuse only if the application does not correspond to the form and content.
It is possible to solve your problems by order only in certain cases, namely:
- if the requirement relates to a transaction that was completed in simple written form;
- requirements regarding contracts certified by a notary;
- disputes about alimony;
- on tax underpayments;
- on issues of non-payment or delay in wages.
In addition to filing an application to cancel a court order, it can be appealed to a higher authority.
Procedure
The defendant, when receiving a court decision, first of all, must fix the date and time of receipt of this document. Then you need to familiarize yourself with the conclusions of the judge, put your signature in the presence of the person who hands the decision (if it was not sent by mail).
It is from the date of receipt that the ten-day period is calculated, during which you can draw up and submit your application to cancel the court order (the sample can be studied in the article). On the eleventh day, the decision will enter into legal force if the defendant does not protest it.
Basic requirements for the application
First of all, objections to the enforcement of a court order (a sample is provided below) must be made in writing. The application must be made in triplicate. One is for the judge, the second is for the plaintiff, and the third must remain with the applicant, on which the court’s clerk on receipt of the document is affixed.
If there is confirmation of the fact of delivery of the court order (for example, an envelope), then a copy of it is recommended to be attached so that there are no questions regarding the omission of a ten-day period. If the acquaintance took place directly with the justice of the peace, then no additional evidence is required.
Mandatory details
The heading of the document is located in the upper right corner. It contains the details of the court. As well as the defendant and the plaintiff.
A sample of objections to the enforcement of a court order in this part of the document is quite obvious. There he is:
"Justice of the peace plot number
... city districts ....
court address with zip code
Claimant:
Address
Debtor: full name
Address"
If the debtor or defendant (both parties) are legal entities, then the organizational form of the enterprise, name, legal address should be fully prescribed.
Title
Next, in the middle of the document, the name of the document is indicated. The law does not have a clear definition of how such an appeal should be called. Therefore, the applicant can simply write the word “Statement” or “Objection to the enforcement of a court order” (a sample document is provided below).
Under the name it is necessary to indicate the number of the contested decision, its date. Which is prescribed in the order itself.
Circumstances
This part of the document should contain a brief description of the essence of the dispute. That is, under what circumstances a dispute arose, for example, a claimant demands to pay off a debt under a notarial transaction or to pay child support. It should also be indicated here when the debtor received the decision, that is, confirm that the deadline for submitting objections has not been missed.
Sample application for cancellation of a court order:
“..Date ... Justice of the peace of plot No., district ... city ..., on the basis of a statement of the Federal Tax Service Inspectorate on the issuance of a court order, a decision was made and order No. ... date ... was issued to collect taxes and duties from me for ... the period is indicated ... in favor of the tax service in the amount of ... rubles . As well as the collection of state duties in the amount of ... rubles in favor of the state. "
The following paragraph sets the date of receipt of the court order.
Protest
This is the most important part of the document, which sets out specific circumstances that will allow you to cancel the order. Although it is allowed not even to indicate the reasons why the judge should make such a decision. Just express your disagreement.
Model objection to the execution of a court order:
“As of ... date ... debt to the collector ... I have no.”
“I object to the demands of the Federal Tax Service Inspectorate, both in terms of paying debt and in paying state duty. I have not violated the deadline for the payment of mandatory taxes and fees, as evidenced by a copy of the bank statement (receipt), which is attached to the application. I consider it unlawful the requirement to re-pay tax on ... for the same tax period ... Based on clause 11 of part 1 of article 21 of the Tax Code, I have the right not to comply with unlawful requirements of the tax service. ”
“By this document, the debtor expresses its objection to the execution of the above judicial order. To date, the court ... between the claimant and the debtor ... is considering a dispute about the law regarding the obligations under which the order was issued. ”
Requirements
In writ proceedings, the debtor can have only one requirement - the cancellation of a court order (Code of Civil Procedure of the Russian Federation, article 129).
Therefore, you do not need to invent anything, but simply write:
“Based on or guided by Articles 128,129 of the Code of Civil Procedure of Russia,
Ask:
Cancel the details of the document, name No...date ..
List of documents and signature
At the end of the document, if there is a need for the application of documents, their list is written. After this, the date, signature and full name are put. the applicant.
You can attach to the application a copy of the court order, a copy of the receipt for the payment of the disputed amount, that is, documents that confirm or refute one or another fact set forth in the court order or application.
If the deadline is missed. What to do in this situation?
Indeed, the term for objection to a court order is rather short and amounts to only 10 days. However, it should be remembered that it does not count from the moment the decision is made. And from the date the debtor received the document or from the date when he could find out about the existence of a court decision.
The legislation provides for two options for transferring a court order to a debtor: directly in court and by mail. As a rule, it is through the mail operator that such documents are sent. And practically every Russian knows how our mail works.
In light of this, if the debtor wishes to exercise his right provided for in Article 129 of the Code of Civil Procedure of the Russian Federation, it is not recommended to send objections by mail, but to do everything possible to transmit the application through the registry of the court.
If, for objective reasons, it is not possible to meet the ten-day deadline, then the debtor has the right to restore it. According to the provisions of Article 112 of the Code of Civil Procedure.
Good reasons include: the inability to file an application due to being in a hospital or on a long trip abroad, or the death of a close relative, and so on. In any circumstances, to restore the deadline, it is necessary to provide the court with evidence. It is important!
Request for the restoration of the time limit for appealing against a court order
Such a document is formed according to generally accepted rules for applications. It is necessary to register the details of the recipient (court), debtor and collector, the name of the document. The main part of the application should contain a brief description of the essence of the dispute, the details of the court order. And the circumstances that give the right to restore the missed period can be written as follows:
"... I ... was not notified of the opening of the trial and that the collector ... went to court. A copy. ... details ... date of receipt of the document .... However, in connection with the illness of the mother ... Name, surname, who lives in another city and is lonely, could not timely contact the court where the order was issued and to object to the execution of the order.The fact of her mother’s illness and her being in the hospital is confirmed ... the details of the medical report, certificates ...
Based on Article 112 of the Code of Civil Procedure and guided by Articles ... of the Code of Civil Procedure,
Ask:
To restore the missed deadline for appealing a judicial order of a justice of the peace ... requisites date.
Cancel ... the details of the document ... ".
In the end
In general, no issues should arise from the debtors with any objections. The procedure is simple and does not even require special knowledge in the field of jurisprudence.
After appealing the judicial order of the justice of the peace, the debtor is advised to obtain a ruling on the cancellation of the order. If the matter has already reached the executive service, it is necessary to transfer a copy of the decision to the bodies of the UFSSP. Since it is not known when the bailiff will receive this document from the court. Accordingly, if an order is issued for the collection of taxes and fees, then a copy of the determination must be submitted to the IFTS.