Sample objection to the court order of the magistrate 2020

Incomplete information is misleading

Yes, this answer is correct, but partly. Because citizens often do not finish speaking, do not provide more complete and very significant information, and do not realize its importance. And the completeness of the information is that a court order was previously issued against them, it was canceled at the request of the debtor. After which the bank filed a lawsuit.

When answering the question about the application of the statute of limitations and the possibility of its application, it is necessary to correctly calculate this period - precisely taking into account the validity period and cancellation of the court order.

In accordance with Article 195 of the Civil Code of the Russian Federation, the limitation period is the period for protecting the right in a claim of a person whose right has been violated. Based on this norm, the right subject to protection by the court should be understood as the subjective civil right of a particular person.

The death of the tenant-father does not deprive the child of the right to an apartment. The grandmother's claim to recognize her granddaughter as having lost the right to use is REFUSED.

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Why make objections?

The motive for filing objections to a court decision made in a simplified manner, and, accordingly, for terminating the entire proceeding, is always the debtor’s disagreement with the issued act. So, disputable, from his point of view, may be:

• The creditor has a declared right of claim;
• The size of the stated requirements;
• Choosing the type of civil proceedings, while the debtor has counterclaims or additional evidence.

An important circumstance is the fact that the document itself drawn up by the debtor does not necessarily have to contain specific, clearly formulated and proven reasons for disagreement.

The legal consequence of the action in question on the part of the proceedings to express one’s disagreement is the court’s cancellation of the contested judicial act through a ruling issued within three days. The definition explains to the parties to the proceeding the procedure for further actions, namely the possibility of initiating a case by filing a claim on the same grounds. This type of court ruling cannot be challenged.

In what cases is it worth writing an objection?

Under any circumstances, it is necessary to write an objection to the court order. Otherwise, the mechanism for activating the provisions of the latter will start. In addition, this action gives you the right to consider the dispute that caused the opening of writ proceedings through a lawsuit.

This action accordingly gives you a wide range of opportunities that can be used in the lawsuit proceedings: from active participation in the process of consideration of the case, and ending with the provision of certain available evidence and calling witnesses during the trial.

Therefore, if you have already become the owner of such a paper, do not miss your chance for a fair and thorough resolution of the issue regarding the dispute that served as the reason for the writ proceedings.

How to correctly calculate the statute of limitations

Unless otherwise established by law, the duration of the SIA begins from the day when the person whose right was violated learned or should have learned about the totality of the following circumstances:

• about violation of your right;
• about who is the proper defendant in a claim for the protection of this right (clause 1 of Article 200 of the Civil Code of the Russian Federation).

According to paragraph 1 of Art. 196 of the Civil Code of the Russian Federation, the general limitation period is three years from the date determined in accordance with Article 200 of the Civil Code of the Russian Federation.

If the creditor missed the IDS, then the defendant’s statement about the court’s application of the statute of limitations is an independent basis for refusing the claim.

In pp. 17, 18 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated September 29, 2020 No. 43 “On some issues related to the application of the norms of the Civil Code of the Russian Federation on the limitation period”, the Supreme Court explained that the limitation period does not run at the time of applying for judicial protection, in including from the date of filing an application for a court order.

The day of application to the court is considered the day when the application is submitted to the postal service organization or submitted directly to the court, including by filling out in the prescribed manner the form posted on the official website of the court on the Internet.

The limitation period that began before the filing of the claim continues until the court order is cancelled. In case of cancellation of the court order, if the unexpired part of the limitation period is less than 6 months, it is extended to 6 months (clause 1 of Article 6, clause 3 of Article 204 of the Civil Code of the Russian Federation).

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Court order for debt collection

Modern Russian justice has in its arsenal several types of legal proceedings. One of the options for making a verdict in the case under consideration is the adoption of a court order. It is accepted as a result of simplified proceedings conducted on the basis of a package of documents submitted by the applicant.

The basis for a simplified procedure for considering a petition should be the utmost simplicity and clarity of the case. One of these cases includes statements regarding the borrower’s failure to comply with the terms of the loan agreement. What is the validity period of a debt collection order?

Features of a court order for debt collection

Mandate proceedings, as a special procedure for judicial proceedings, are provided for by civil procedural legislation and are used in the consideration of cases falling under the jurisdiction of the Civil Code of the Russian Federation. A court order is a unilateral decision made by a judge.

Such a decision is made on the basis of documents and other evidence provided to the judge by the applicant. The specificity of this method of considering a case is that it does not involve court hearings, the arguments of the parties are not heard, and witnesses are not questioned.

Neither the applicant nor the respondent in this case receive notice of the time of consideration. Direct consideration of the submitted petition is carried out personally by the judge behind closed doors.

After examining the documentary base submitted along with the application, the judge makes a decision to reject it, or to satisfy the petition.

In the latter case, the court issues a binding order.

All interested parties are notified within three days of the court decision using registered letters containing copies of the issued order.

After receiving a copy, the defendant is obliged to either protest it within the allotted time frame, or execute it.

If the court order is not complied with, the case is transferred to the bailiff service to take appropriate enforcement action.

Due to the simplified consideration scheme, writ proceedings are the fastest way to resolve a number of issues. Typically, the time frame for issuing decisions in this case is about five days.

Thus, issues of assigning alimony for children after the divorce of spouses are often resolved by order. Creditors who do not want to waste time and effort on litigation also resort to a similar method. But for this they must have compelling arguments - a loan agreement, a promissory note, etc.

Filing a debt collection application

court order for debt collection

To submit a petition to the court to consider a case in a simplified mode, you will need to comply with a number of procedural standards provided for by the Civil Code of the Russian Federation. The application is submitted for consideration to the magistrate at the place of residence of the defendant.

If the debtor is hiding and it is not possible to establish his whereabouts, you can file a petition in the court of the district where the plaintiff is registered.

In this case, you will need to submit a certificate from the passport and visa service or the police to the court office confirming that the borrower’s place of residence is unknown. The statement itself should look like this:

• In the upper right corner of the paper the full name of the judicial authority to which the petition is submitted is written.
• Details of the applicant - full name, registration address, contact phone number (e-mail).
• Data of the defendant-debtor.
• The main text describes in a concise but clear form the circumstances that resulted in the debt and its size at the time of going to court.
• At the end of the text, demands are made for the return of the borrowed amount with interest accrued during this time. Here you should provide a link to the relevant articles of the loan agreement and the provisions of civil law.
• The application should be accompanied by documentation confirming the legality of the requirements put forward by the borrower - a loan agreement, or a receipt certified by the signatures of both parties.
• Receipt for payment of state duty in the amount of ½ of the similar fee established for legal proceedings.

All attached documents should be indicated at the end of the main text of the application in the form of a list. The fact is that there are cases of loss of some papers in the court office. Confirming their original presence, in the absence of an inventory of the submitted documentation, can be very difficult.

Appealing a debt collection order

The form of writ proceedings implies the absence of mutual claims between the two parties to the proceedings - the applicant and the defendant.

The period for execution of a court order for debt collection begins to be calculated from the moment the debtor receives a registered letter containing a copy of the court order.

The defendant, after serving the letter, has a ten-day period to appeal the judge's decision.

After filing a protest, the case cannot be considered again by order.

The simplified regime provides for the absence of any disagreements between the lender and the debtor regarding the payment procedure and the amount of debt.

When a case is reconsidered, it occurs exclusively in the “standard” claim form. In the latter case, the presence of the plaintiff and the debtor-borrower, or their official representatives, is required at the meeting.

In the claim form of legal proceedings, both disputing parties present their position to the judge for consideration, defending it by all means provided for by procedural standards.

As evidence, it is possible to provide supporting documentation, witness statements, checks and receipts indicating partial repayment of the debt, etc. It should be remembered that filing an appeal automatically cancels the decision made by order.

Accordingly, the deadline for executing a court order for debt collection loses its relevance.

Statute of limitations for a court order for debt collection

In domestic legal proceedings there is such a legal concept as limitation of actions.

This term refers to the maximum period of time during which the injured party has the right to seek protection from the judiciary.

As with all other legal proceedings, there is a statute of limitations for a court order to collect a debt. In the case of claiming borrowed money, this time period is three years.

It starts from the moment the borrower ceases to fulfill the debt service obligations assumed under the loan agreement.

Accordingly, if in the 3 years that have passed from this moment the lender has not filed a claim with the justice authorities, then the court will no longer accept any claims regarding the return of the debt.

In this case, neither the size of the unrepaid debt nor the form of the loan agreement play a role. The exception is debts resulting from non-payment:

• Alimony payments.
• Compensation payments for harm caused by the debtor to the health and life of a third party.
• Payments to the family of a person who died due to the fault of the debtor.

These types of debts have no statute of limitations and are subject to mandatory compensation regardless of the time that has passed since their formation. In some cases, the applicant has the right to claim restoration of the statute of limitations. This is possible if the lender was unable to file a claim on time as a result of circumstances beyond his control:

• Force majeure (natural disaster, fire, criminal act of third parties), as a result of which documentation confirming the existing debt was lost.
• A serious, long-term illness of the creditor, which did not allow him to draw up and submit a petition to the judicial authorities in a timely manner.
• Other factors that may be considered by the court as valid reasons.

In addition, the statute of limitations for a court order for debt collection can have 2 options: general and special. In the first case, it is standard and corresponds to 3 years. The special period can be adjusted by a court decision - reduced or extended depending on the circumstances.

If the order has already been issued, then it no longer has any statute of limitations - it is binding, even if 3 or 5, or even more years have passed since its issuance.

Responsibility for failure to execute an order

A court order, like any other court verdict, is mandatory for all parties interested in the case.

After the ten-day period allotted for the defendant to protest the judge’s decision, the order comes into force.

If the debtor ignores the court order and does not want to voluntarily begin repaying the debt within the established time frame, his case is transferred to the bailiff service.

When initiating enforcement proceedings, bailiffs have the right to apply to a negligent debtor the entire range of enforcement measures provided for by current legislation. Debt collection measures are divided into several stages:

1. Foreclosure of wages and other income of the borrower. The maximum amount that can be collected from the debtor’s salary cannot exceed 50% of its monthly amount.
2. In the absence of official income, bailiffs seize the debtor's bank accounts and deposits. All money on them goes to pay off debts to creditors.
3. In the absence of bank accounts or in the absence of money on them, the actions of the bailiffs apply to the personal property of the debtor. All liquid property is described and sold at public auction. The proceeds go to cover the debt.
4. An extreme case, when all the property available to the defendant is not enough to repay the loan, is to assign him to forced labor with withholding half of the earnings in favor of the plaintiff.

Court order: what is it and how to cancel it?

Source: https://myjus.ru/debts/srok-dejstviya-sudebnogo-prikaza-o-vzyskanii-zadolzhennosti/