What to do if you receive a court order. Court order on a bank loan. Need money urgently? Take them from trusted companies on preferential terms

If the borrower does not fulfill his obligations to the bank in good faith, there is always a risk that the lender will turn to the services of a magistrate. The authorized body has the right to issue a court order to collect the debt, after which the debtor may lose his valuables. At the same time, it is possible to challenge the writ of execution if the borrower has appropriate reasons.

Normative base

First, let's figure it out. A court order to collect debt on a loan is a type of ruling issued by a magistrate when a banking organization submits an application. Those. The written request of the creditor is the basis for the judicial authority to issue this order.

This action is quite profitable and convenient for banks. The issue is considered quite quickly - within 5 days after sending the application, an order is issued, and the presence of one of the parties at the meeting is not necessary. The procedure is subject to payment by the bank in the form of a state fee in the amount of 50% of the rate for claims. The amount of the borrower's debt cannot exceed 500,000 rubles.

The regulatory framework for the term is presented by the Code of Civil Procedure of the Russian Federation, Art. 121-130, where the following issues are covered in detail:

1. Concept, content, requirements.
2. Features of submission, application form.
3. Procedure for issuing an order.
4. Cancellation of writ of execution, etc.

Let us note that it is quite possible and even necessary to cancel the court order due to certain circumstances. For example, you need to collect the amount necessary to pay off a debt to the bank.

Statute of limitations for a court order

If the bank files an application for a court order, the limitation period cannot be interrupted. It turns out that while judicial protection is being carried out, the statute of limitations does not run throughout the entire time, starting from the day the creditor goes to court.

Further, if the order is canceled, the limitation period continues, but from the date of cancellation of the order. Based on Art. 203 of the Civil Code of the Russian Federation, it follows that the time before the break will not be counted towards the new term.

It is also worth considering that the banking organization has the right to appeal again to the magistrate some time after the cancellation of the court order on the basis of Art. 129 of the Code of Civil Procedure of the Russian Federation, but in the manner of claim proceedings with a request to fulfill all the same requirements. The general statute of limitations is 3 years, unless otherwise provided by law, represented in this case by Art. 196 of the Civil Code of the Russian Federation.

Pros and cons of the order for the borrower

In fact, it is more profitable for the borrower if his debt is collected as part of the claim proceedings. Most citizens do not understand the difference between certain decisions and actions of judicial authorities. Having received a court order to collect a debt, they do not know what to do and take the document for granted, without challenging the demands of the bailiffs. In such a situation, judges have a unique opportunity to satisfy all the banks’ claims.

• Attend court hearings (subpoenas arrive).
• Read the list of all documents, request loan information from the bank.
• Exercise your rights, get a deferment, achieve debt restructuring, “credit holidays”.
• Count on a reduction in the amount of the penalty accrued by the creditor or even its write-off.

That is why banking institutions use it by appealing to a magistrate without the participation of the debtor, rather than filing a claim in court, which requires a lot of time (6-12 months). For comparison, debt repayment by order can take about 2 months.

Among the advantages of a court order for the borrower, one can note only the possibility of its cancellation, and this is no less. According to statistics, only 10% of debtors who find themselves in such a situation file an application to cancel the writ of execution, the rest comply with the demands of creditors in full, voluntarily or forcibly.

Procedure

So, you can find out that a court order has been issued on your candidacy to collect a debt from you in two ways:

1. By letter through the post office.
2. During a personal visit to your home by bailiffs.

Receiving an order

You should have a copy of the decision of the judicial authority in your hands, which is an important document for your further actions. You will put your signature and date of receipt on it. The countdown will begin from this day. A court order cannot be called a sentence; a complaint can and should be filed against it. This should be done within 10 days, but it can be done later if the borrower can document the reasons for the delay (illness, business trip, failure to receive a copy of the court order, etc.).

You will need to contact the same authority that issued the court order to collect the debt to the bank.

Application to cancel an order

Upon arrival at the court, you will need to write an application to cancel the court order to collect the debt in two copies: to submit to the court and to mark its acceptance. Of the additional documents, you only need a copy of the resolution that you received by mail or from the bailiff. There is no need to pay anything. A summary of the statement of claim is presented in the table below:

After the court receives a documentary request from the debtor, a decision will be made within 3 days. You can download a sample application for debt collection to cancel a court order - an objection.

At the same time, we suggest that you familiarize yourself with what a court order for debt collection looks like using an example:

The resolution came into force

Let us emphasize once again that the deadline for executing a court order to collect a debt is 10 days from the date of its issuance, i.e. after this period, the resolution enters into legal force if the debtor for some reason does not file a counterclaim.

The process of execution of the order is controlled by the Federal Law “On Enforcement Proceedings”. Everything happens step by step as follows:

1. The court makes a decision.
2. Awaiting objections from the defendant.
3. If a counter-application is not submitted, the documents are transferred to the bailiff service at the place of residence (registration) of the debtor.
4. Enforcement proceedings are opened.
5. A bailiff comes to the defendant’s house to assess his material property.
6. There is a forced collection of debt.

Everything can happen much faster if, upon learning of the existence of a court order to collect the amount of debt (see sample document above), the debtor voluntarily and without claims pays the debt incurred to the bank. Bailiffs are given 2 months to implement the provisions of the court ruling in accordance with the provisions of the Federal Law.

Statement of objection

Despite the deadline established by the Code of Civil Procedure of the Russian Federation for filing an objection from the debtor (10 days), you can apply to the court with the same request later, if you can document your rights. It is permissible to appeal a court decision for valid reasons (illness, leaving the country, etc.). you can study the corresponding application for cancellation of a court order to collect loan debt - a sample petition. You can consider it as an introduction; you should indicate your reason for missing it - in fact.

In Art. 256 of the Code of Civil Procedure of the Russian Federation states in detail what circumstances are considered on legal grounds to increase the period for reviewing a court decision. If the case has already reached the bailiffs, enforcement proceedings have begun; Art. 443, 444, 445 Code of Civil Procedure of the Russian Federation.

It is also possible to file a counterclaim, but the disadvantage of this option is the costs for the defendant - the state fee must be paid in full. In any case, much will depend on the objectivity of the judge you meet.

Advantages and disadvantages of reversing a court decision

Summarizing the topic of canceling a court order, we can highlight several advantages for the borrower:

• Simplicity and high speed procedures.
• Automatic termination of enforcement proceedings.
• The opportunity to hide property, raise money to pay off debt, and other options.

At the same time, there are also disadvantages: interest on the loan, fines, and penalties continue to accrue; banks often sell or transfer the debt to collectors in order to avoid subsequent expenses and hassles.

Arbitrage practice

Let us repeat by pointing out that in most cases, borrowers do not know their rights. Having received a court order, the bailiffs voluntarily fulfill their obligations or forcefully collect the required amount. The peculiarity is that none of the parties (the bank and the borrower) are present at the meetings, the magistrate makes a decision based only on the documents submitted by the banking organization, and the borrower, in fact, finds himself in a limited position.

A small percentage of debtors still seek to have the court order cancelled, bringing the matter to litigation, where they have more advantages and opportunities. As practice shows, a creditor almost never withdraws its claims if the matter has already reached court proceedings.

I received a letter from the bailiffs stating that I owe the bank on a loan. I have not received anything at all and do not know about any court case. Is this legal?

Most likely, you are faced with a court order. This is the name of a type of court order to collect the amount of debt. A court order is issued by a single magistrate based on the bank’s application for a court order. To issue a court order, it is not necessary to schedule a court hearing or summon the parties. This is precisely why a court order differs from an ordinary court decision, which is made only after summonses have been sent and all the circumstances of the case have been examined by the court.

In practice, banks quite often use this method of collecting loan debt. First, the borrower-debtor is sent a demand or claim about the need to repay the loan debt. If the borrower ignores this claim, does not receive it, or is unable to repay the debt, the bank initiates legal proceedings.

The bank pays the state fee and submits an application to the magistrate for a court order for the amount of the debt. Usually this is a magistrate at your place of residence, but if the loan agreement specifies contractual jurisdiction (for example, at the location of the bank), the bank can turn to another magistrate. Within 5 days from the receipt of the bank's application, the magistrate issues a court order. The law (Article 126 of the Civil Procedure Code of the Russian Federation) directly stipulates that with a judicial order is issued without a trial and without summoning the parties to hear their explanations.

The judge sends a copy of the court order to the debtor, and if within 10 days from the date of receipt of the order the debtor does not respond to it in any way (or does not receive the letter at all), the court issues a court order to the bank or sends it directly to the bailiff service at the borrower’s place of residence. The court order itself has the force of an executive document, therefore, upon receipt of it, the bailiffs initiate enforcement proceedings and begin to collect the amount of debt from the borrower (transfer documents to the debtor’s place of work to withhold part of the salary, seize property and current accounts, etc.).

What to do if you receive a court order?

• do not waste time and, within 10 days from the date of receipt, submit to the magistrate who issued the court order an application to cancel the court order ( objections regarding its execution). The period starts counting from the day following the date of receipt. Don't throw away the envelope from the court order letter—the date on the postmark can help confirm the date of receipt;
• You can find the address, website and contacts of the magistrate’s precinct on the website of the State Automated System “Justice”;
• There, on the websites of magistrates, sample statements are usually posted, incl. to cancel the court order. For example, for residents of the Vologda region they are posted;
• the application is submitted in 2 copies - one for the court, the second for you, on which the office of the magistrate must put a mark on receipt;
• if the magistrate is located in another city, send 1 copy of the application to cancel the court order by mail (preferably by a valuable letter with a list of the contents and a receipt).

What to do if you already learned about the court order from the bailiffs?

• contact the magistrate with an application to cancel the court order according to the scheme described above. In the text of the application, indicate that you did not receive a court order;
• simultaneously with this application, submit to the court a written application in 2 copies in any form for the issuance of a court order (as usual, one copy for the court, the second for you to mark receipt by the court);
• if it is not possible to cancel the court order, you have the right to file a cassation appeal against the court order that has entered into legal force to the presidium of the supreme court of your region (in Vologda this is the Vologda Regional Court);
• Before consideration of your complaint, you can also contact the magistrate who issued the court order with a request to suspend the enforcement proceedings.

What happens after the court order is lifted?

• within 3 days from the date of cancellation of the order, the magistrate must send you a ruling to cancel the court order;
• the court order is withdrawn from the bailiff service;
• your collector - the bank - will have to go to court in order to collect the amount of the debt in a general action proceeding. In this case, the court will send you the text of the statement of claim and summon you to the hearing with a subpoena. You will be able to participate in the process in person, challenge the claim, file motions and defend your position.

If the court order is canceled, further collection of the debt is possible only through legal action. Moreover, since the order is both a court decision and an executive document, the collection process that has begun is terminated until a claim is filed and satisfied in the case.

Consequences of canceling the order for the claimant

​The decision to cancel the order is formalized by a ruling of the magistrate. The definition explains to the claimant the main consequence of the decision - the emergence of the right to assert their claims by filing a claim. Whether to use this right or not is the decision of the creditor. If he does not use it, there will be no further progress in the collection procedure.

Copies of the ruling are sent to the claimant and the debtor within 3 days from the date of the decision.

From the position of the claimant, the cancellation of the court order is an undesirable decision which entails the need to file a lawsuit in court. The prospect is a significantly longer trial and a high degree of probability that the court will not satisfy the requirements in full size. Here we are talking about the risk of reducing the amount of the penalty, and sometimes its complete exclusion from the amount of the claim. In addition, the courts often meet debtors halfway and satisfy their requests to establish an installment plan (deferment) or to determine the most beneficial procedure for the debtor to repay claims in another form. Because of this, it is believed that litigation is a more preferable option for debtors.

Whether there is a positive points for the claimant when canceling the order? Their presence and features depend on the nature of the requirements and the circumstances of the case. But considering judicial practice, two general points can be distinguished:

1. Often, not all requirements can be included in an application for a court order, and sometimes the applicant himself does not do this, fearing that the court will not satisfy them in full. In this regard, claims are not particularly limited. Depending on the circumstances of the case, you can include in them not only the principal debt, interest on loans or borrowings, but also collect a penalty, interest for the use of other people's funds, compensation for moral damage, the amount of lost profits, direct damages and some other amounts based on the type and terms of the contract. Of course, filing demands does not mean that they will be satisfied, but you can fight in court. Order proceedings do not provide such opportunities.
2. Canceling the order leaves a chance for an out-of-court settlement of the debt problem. Of course, this solution is a compromise. But sometimes it is more effective to repay at least the main debt at the least cost than to open a long, costly process with unclear prospects. Here it is appropriate to remember that the main task is to repay the debt, and the court decision still needs to be executed, which can be problematic.

Consequences of canceling an order for the debtor

Filing objections to the execution of an order is a common practice. However, sometimes debtors do not really understand why this is being done and perceive the cancellation of the order as a mandatory action. This is wrong.

When preparing and filing an objection, the debtor must clearly understand what and how he will do next. After all, the problem with debt will not go away. Therefore, the task is not simply to cancel the order, but to use this opportunity to your advantage.

What can be done by canceling an order:

1. Claim proceedings involve personal and (or) through a representative participation in a full-fledged trial. The debtor has the opportunity to personally convey his position to the court, argue it and prove it.
2. As part of the claim proceedings, you can file objections to the claim or file a counterclaim - that is, take an active position in the process and outline your demands on the claimant.
3. Practice shows that when considering a claim, courts often reduce the claims made by the plaintiff and (or) exclude some of them from the list of satisfied ones. The burden of proof here lies with the debtor, but the very opportunity to do so is a positive thing.
4. In court, you can get a mitigation of the execution order court decision compared to standard. In most cases, this is exactly what the debtor is counting on. And for good reason.

What should the claimant and the debtor do when canceling an order?

Considering the main consequence of canceling the order - the opportunity to re-state claims in the form of a claim, the claimant must determine for himself whether to exercise this right or not. The debtor has no choice but to wait for further decisions and actions of the claimant, and if he files a claim, prepare for the trial.

Some particular nuances:

1. If it so happens that the order is canceled simultaneously with the restoration of the deadline for filing objections and enforcement proceedings are already underway at this point, the debtor must take measures to terminate it. To do this, you should send the bailiff a copy of the judge’s ruling to cancel the order along with an application to terminate the proceedings. You must refer to clause 5, part 2, art. 43 of the Law on Enforcement Proceedings.
2. If the order is cancelled, the state fee is not refunded, but its amount can be counted against the amount of the state fee paid when filing a claim. This aspect should be reflected in the calculation of the amount of the claim (state duty) and in the statement specified in the claim or in a separate petition document.

Filing a claim by a claimant is subject to a 3-year statute of limitations. This means that the claimant does not necessarily have to go to court again immediately after the order is cancelled. But, on the other hand, time is precious. And if you postpone making a decision, it is only to try again outside of court to reach an agreement with the debtor. Perhaps the seriousness of the debt collector’s intentions will make him more accommodating, and it will be possible to find a mutually beneficial solution to repay the debt. If a compromise is found, it is necessary to draw up a written agreement and notarize it. If the debtor refuses the agreement or fails to comply with the terms of the agreement, nothing will prevent you from filing a lawsuit.

There is always a possibility that the lender will turn to the magistrate if the borrower does not repay the loan at all or there is arrears in repaying the debt. In this case, the judge has the right to issue a court order. IN Russian Federation The institution of a judicial order has been operating for more than one year, but questions still arise regarding its necessity and features.

When going to court, the creditor submits an application prepared in a certain form. As a result, the judge issues an order that has both the force of a judicial decision and a writ of execution. Borrowers will learn about the acceptance of such an order after receiving a corresponding notification, which most often arrives by mail.

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Not all recipients of such notifications understand what a court order is and what needs to be done if such a document is found in the mailbox, what legal force it has and how you can protest it or block its execution.

Definitions

The magistrate has the power to make several types of orders, one of them is a debt collection order. Orders are issued by a judge most often when it comes to consumer lending, that is, those loans that were provided without collateral and the support of guarantors.

The basis for issuing an order is an application submitted by a bank or other financial institution to collect the debt that has arisen. Since the order is also a writ of execution, banking institutions prefer to apply directly to justices of the peace rather than to ordinary courts. Such an appeal threatens to wait for a writ of execution for the duration of the term from 6 to 12 months.

What benefits does the borrower receive if the bank files not an application for a court order, but a lawsuit:

• the borrower receives subpoenas, thanks to which he has the opportunity to attend each court hearing and monitor the progress of the case;
• the defendant can personally familiarize himself with the claims that the bank makes against him and receive copies of all documents that are of interest to him;
• the debtor may submit a request for a deferment in the fulfillment of his debt obligations;
• the borrower has the right to file a counterclaim against the bank, demanding the return of all paid commissions and insurance premiums;
• Another advantage is the likelihood of achieving a reduction in the amount of penalties and interest that the debtor must pay in connection with the delay in repaying the debt.

Entry into force

The debtor has the opportunity to correct the situation even if he has already received notice that the magistrate has issued an order to collect the debt. To do this, the debtor needs within 10 days after receiving the notification, go to court and submit objections to such a decision.

In order to confirm the fact that the notification was not received ahead of schedule, which is reserved for challenging the decision, you need to record the date and time upon receipt of the notification. The debtor must send objections to the court in writing. The order will be canceled by the magistrate in accordance with Art. 129 of the Civil Procedure Code of Russia.

In the ruling that will be made by the magistrate, the claimant will be given an explanation that the demands put forward by him cannot be fulfilled due to the presence of significant reasons. Such a document is sent to the parties within 72 hours from the moment of its issuance.

There are situations when the debtor learns about the existence of a court order from the bailiff. In this case, you need to find out why he did not find out about the existence of an order to collect the debt earlier. It must be remembered that there is always a chance to restore the deadline for filing an application to cancel the order, especially in situations where the borrower’s rights were violated and all procedural aspects were not observed.

If we describe the scheme for annulment of a court order step by step, it will look like this:

• the debtor prepares and submits to the judge a statement in which he sets out his objections, justifying them;
• the decision made by the magistrate loses its force;
• the bank will not give up its attempts to collect the debt from the borrower, but its next step will be to file a claim in an ordinary court;
• the defendant gains access to court hearings and has the opportunity to reduce the amount of penalties or defer payment of the debt.

The defendant also gets a chance to delay the trial, and given that this is unprofitable for the bank, at this time he has the opportunity to negotiate with the financial institution about a peaceful resolution of the conflict on mutually beneficial terms

Appeal

In practice, situations quite often occur when debtors do not agree with the legality of a court order. However, borrowers do not have the right to express their opinion and provide evidence of their innocence during the consideration of the bank’s application by the magistrate. This is due to the fact that, according to the law, this document is considered without the direct involvement of the defendant.

That is why a special procedure is provided for appealing a decision. The order may be canceled by the judge if, within the prescribed time frame, the debtor submits his objections to the magistrate for consideration. To cancel the order, the borrower does not even need to provide evidence or justify his objections.

But there is no need to think that the abolition of the order is the end point and the borrower does not need to fear that the debt will be collected from him one way or another. The creditor has the right to restate his demands in statement of claim and take it to court.

The debtor can exercise his right to appeal within 10 days from the date of receipt of notification of the order. To do this, it is enough to file personal objections against the decision to the court. Such objections must be stated in writing and submitted for consideration by the judge in 2 copies.

If 10 days has passed, and the borrower did not have time to file objections within the allotted time limit, he has the right to apply to the judge to restore this deadline, indicating good reasons for which the time frame was violated.

There are cases when judges refuse to overturn an order. This is often caused by the fact that the term allocated for appeal was missed, and the borrower did not provide information about valid reasons that prevented compliance with the time limits. Such a refusal is also formalized as a judicial ruling, which, if there are grounds, can be appealed.

Differences

It will not be superfluous to understand the main differences that exist between an ordinary court ruling and one that was issued in the form of an order.

The first important difference is that the issuance of a court order to collect a debt occurs on the basis of evidence, which is recognized by the court as beyond doubt and which does not conflict with the current legislation of the Russian Federation. It follows from this that the final decision of the magistrate must be obvious and not raise any doubts.

Another difference from other court decisions is that the application for the issuance of a court order is considered without involving both parties to the case for their direct participation in the court hearing. The magistrate's decision is made without hearing the parties' explanations and their arguments.