Leaving a claim without progress: assistance from a lawyer

When leaving a statement of claim without progress, you need to familiarize yourself with the reasons for abandonment. One of the reasons may be that the claim was filed incorrectly or the documents specified in the law were not attached. These reasons can be eliminated by submitting documents to the court or by correcting the statement of claim within the period specified in the determination. Sometimes the courts may make an erroneous ruling; in this case, you can file a complaint against the court ruling.

USEFUL : watch the video on the issue of leaving a claim without progress or returning a statement of claim, write your question in the comments of the video

Grounds for leaving the claim without progress

Filing a claim with the court entails certain actions, for example, the claim can be accepted, returned, left without progress, or refused to accept the claim. Leaving the claim without progress means that there will be no further progress in the case until the shortcomings are eliminated, for example, the person filed the claim in the wrong form or did not attach the necessary documents. The claim may be dismissed for the following reasons:

The application does not correspond to the form or the content of the claim is incorrect (for example, the names of persons are not indicated, the circumstances or requirements are incorrectly stated, the price of the claim, if any, is not established);
The statement of claim has not been signed . At the same time, this rule also concerns the fact that the presence of a signature in itself can also become a reason for leaving without movement, for example, if the signature is of a person whom the Plaintiff has not authorized to sign and file a claim in court (there is no power of attorney in the application of the claim or authority in the submitted a power of attorney is not enough);
There is no calculation of the claim price . So, if a party’s demand consists of summing numbers or applying subtraction rules, then the calculation that was made must be attached on a separate sheet. You are required to comply with this rule even if you indicate calculations in the text of the claim itself, since this defect may become a formal violation of procedural law and will lead to loss of time for correction in the future.
No claim - when it is necessary to comply with the claim procedure. Therefore, check whether you have sent a request to the party to voluntarily resolve the dispute. After all, even if the court overlooks this defect, it may subsequently lead to more disastrous consequences in the form of leaving the statement of claim without consideration (more details at the link).
The application is not accompanied by basic documents (for example, a receipt for payment of the state duty, copies of the number of persons participating in the case, documents on which the plaintiff bases his claims). It is important to know that civil procedural legislation provides for collecting a set of all documents attached to the application according to the number of persons participating in the case, that is, for example, if there are 2 defendants, then prepare 1 set for the court and 2 sets for the defendant. There is no need to send a copy of the application and documents to the defendant; the judicial authorities of general jurisdiction themselves transfer the documents to them (in arbitration courts, the responsibility lies with the Claimant, who provides proof of sending all materials to the parties).

In connection with the procedural reform, namely the creation of cassation and appeal courts, very important changes are being made to the codes. Changes are also made regarding leaving a statement of claim without progress, for example:

The new version will provide for attaching a receipt (notification) of delivery to persons of a copy of the statement of claim and documents (this process is now provided for in the arbitration process), that is, in fact, copies of the statement and documents will not need to be attached, the law only specifies the attachment of documents that the defendants do not have and third parties.

The changes also affected the application form, for example, the word “location” was replaced by the word “address”, that is, the plaintiff indicates his address (actual or legal), and not where it is located. Information about the defendant will need to be indicated in more detail, both an individual and a legal entity, for example, passport information, INN, OGRN, driver's license. Changes have also been made regarding compliance with pre-trial procedures (filing a claim); this rule will be provided for by law, not by contract.

USEFUL : watch the VIDEO on the rules for drawing up a statement of claim in court, so as not to get into the situation of identifying shortcomings, write your question to the lawyer in the comments of the video

How to get compensation for construction defects from the developer?

According to the provisions of Law No. 214-FZ, the developer is obliged to ensure compliance with quality

shared construction object
, the terms of the contract, the requirements of technical regulations, design documentation and urban planning regulations
, as well as other mandatory requirements.

Due to the peculiarities of shared construction, almost no developer transfers a shared construction project within the period specified in the shared participation agreement. And due to the fact that liability in the form of a penalty is provided for late transfer of a building, and the prudent developer tries to minimize his risks, apartments are often transferred with numerous construction defects and imperfections. Most often, based on practice, shareholders have claims against the developer due to poor-quality windows and uneven walls. There have been situations in our practice when the shareholder in the apartment did not have a wall according to the project, or the layout of the apartment was completely different from the one provided for in the contract. At the same time, every year there is an increase in the number of claims of shareholders against the developer due to poor quality construction.

Shareholder's rights

If the developer has built a property with deviations from building codes or conditions of the building regulations, the shareholder, at his own discretion, has the right to demand from the developer:

free elimination of defects within a reasonable time
proportionate reduction in the contract price (the cost of eliminating identified deficiencies is collected according to the conclusion of a specialist)
reimbursement of their expenses for eliminating deficiencies (actually incurred expenses for payment for work and construction materials are recovered)
termination of the contract (in case of significant violation)

In practice, the most effective way to protect the shareholder in such cases is to reduce the price of the DDU and recover from the developer the cost of construction and restoration work and materials according to the estimate (expert opinion).

Amount of compensation for construction defects

First of all, it should be noted that depending on the availability of finishing in the apartment, as well as the type of finishing (rough, pre-finishing (white box) or fine finishing) of the apartment, the requirements for the quality of the transferred apartment will be different. With fine finishing, as a rule, the cost of identified deficiencies is significant, since the scope of what the developer must do is much greater than in other options.

Only a specialist can determine the cost of eliminating a construction defect. When calculating the cost of elimination, the following are taken into account: a) the cost of necessary materials; b) the cost of dismantling (if required) and c) the cost of restoration work. Often, “insignificant” defects from the point of view of the shareholder are “expensive” from the point of view of a specialist. For example, small defects in the floor covering, deviations may be invisible to the eye, but in fact they are a deviation from building codes, and the market cost of eliminating such a defect is significant, since it requires dismantling.

If, when defects are discovered, the shareholder chooses the second method of defense - a requirement to reduce the price of the DDU, then the amount of compensation is calculated based on the expert's opinion: the expert identifies defects and draws up an estimate with the market value of the work and materials necessary to eliminate the defects. That is, in this case, the equity holder recovers money that he has not yet spent. The calculation of compensation by an expert, in addition to the volume and type of defects, is also influenced by the cost of work and materials used in the calculation (prices for the same work and materials may be different, so the market price in the expert opinion may vary, the price may also change over time time). If a forensic examination was ordered during the consideration of the case, when determining the amount of compensation, the court, as a rule, is guided by the conclusions of the forensic expert.

If the shareholder independently eliminates construction defects and demands compensation from the developer for the costs of elimination (the third method of protection), then the amount of compensation is determined based on the actual costs. However, this option has some disadvantages in practice. Firstly, in order to reimburse expenses, there must be supporting documents, which are often missing or inadequate when contacting private craftsmen and purchasing materials on the construction market. Secondly, defects must be recorded before they are eliminated, that is, a specialist’s conclusion will also be required describing the identified violations, as well as an estimate of the necessary work and materials for elimination (the work performed under the contract and the materials purchased must correspond to the estimate). Otherwise, it will be difficult to prove to the court that defects existed before repairs and that building materials were purchased to eliminate them.

Step-by-step instructions “How to get compensation for construction defects from the developer?”

Step 1. Order a specialist (construction expert) opinion with an estimate of the cost of eliminating the quality defects

Contact an independent construction expert to conduct a construction and technical study and agree with the expert on the day for the construction and technical study of the apartment (other property).

No later than 3 working days (if the developer is registered in the same region where the property is located) or 5 working days (if the property and the developer are located in different regions) before conducting a survey of the apartment (other property), notify the Developer at the legal address about the date and time of inspection of the apartment (other property) by a specialist.

We recommend sending notification to the developer by telegram. Before sending a telegram, check the current address of the developer in the Unified State Register of Legal Entities (on the website of the Federal Tax Service of Russia).

Based on the results of the construction and technical study, the expert will prepare a conclusion indicating the causes of deficiencies and the cost of restoration repairs (an estimate with the cost of materials and restoration work is attached to the conclusion).

Step 2. Send a claim to the developer with a copy of the report attached.

In your complaint, indicate your requirements to the developer. If your DDU does not provide for a different procedure, then you can contact the developer immediately with a demand to reduce the contract price. Some DDUs provide that if a shareholder discovers deficiencies, he has the right to contact the developer with a demand to eliminate the deficiencies and only if this requirement is not met, to apply for a price reduction. If your DDU contains such conditions, then you must first send a demand to eliminate construction defects within the period specified in the DDU, and then, if the developer does not eliminate the defects on time, send a claim demanding a reduction in the price of the DDU.

The claim is sent by registered mail with a list of attachments. Indicate in the claim a reasonable period for fulfilling the requirement (based on practice, a reasonable period for payment of compensation is 10 days from the date of receipt of the claim).

Step 3. Go to court with a claim to recover compensation for construction defects from the developer

If the developer does not comply with the requirement voluntarily, then file a lawsuit.

Before filing a lawsuit in connection with the discovery of construction defects, the shareholder must:

a) determine the jurisdiction and jurisdiction of the case

Individuals who purchased a property for personal purposes must apply to a court of general jurisdiction: a magistrate (if the value of the claim is less than 100 thousand rubles) or a district court (in other cases). At the same time, shareholders have the right to choose jurisdiction: the shareholder can file a claim with the appropriate court at the location of the developer, or at the place of residence of the shareholder (at the address of permanent or temporary registration), or at the place of conclusion of the DDU, or at the place of execution of the DDU (that is, at address of the shared construction object). Before choosing a court, you need to study the practice of possible courts based on territorial jurisdiction, since the correct choice of jurisdiction is the key to successful completion of the case, collection of the maximum amount of penalties and fines, since courts can reduce interest and fines in accordance with Art. 333 Civil Code of the Russian Federation.

Legal entities and individual entrepreneurs in disputes about the quality of construction of a shared construction project must apply to the arbitration court at the location of the developer or in accordance with the contractual jurisdiction, if it is provided for in the DDU.

b) determine the price of the claim and the amount of state duty payable

An individual shareholder, when going to court in this case, can recover from the developer:

compensation for construction defects (declared in accordance with the conclusion of a construction expert, but can be changed based on the result of a forensic examination, if it is ordered by the court, either down or up);
a penalty for violating the deadline for paying the price of the DDU (this penalty should not be confused with a penalty for violating the deadline for transferring an object, these are different penalties for different violations, in this case a penalty is collected in accordance with the Law on the Protection of Consumer Rights);
compensation for moral damage (declared in any amount, the final amount is determined by the court);
fine under the Consumer Protection Law

Legal entities and individual entrepreneurs cannot file claims for compensation for moral damage or a fine in the arbitration court. In addition, the penalty in this case is accrued in a different manner (except for cases of assignment to a legal entity, individual entrepreneur of the penalty by an individual shareholder).

The price of the claim (for claims of shareholders-individuals) for calculating the state duty from the specified requirements includes only compensation for construction defects and a penalty. Shareholders-individuals are exempt from paying state duty if the amount of the claim is less than 1 million rubles, that is, when calculating the duty from the value of the claim for more than 1 million rubles, the amount of the duty due for 1 million rubles is deducted from the amount of the state duty. The law provides precisely this wording for a benefit for consumers, and not only a reduction in the price of the claim by 1 million rubles. Calculate the duty correctly, since with the correct calculation the amount of the duty will be less.

c) send a copy of the claim to the developer by a valuable letter with a list of attachments

d) copies of documents confirming the requirements must be attached to the statement of claim:

copies of the DDU, documents confirming payment for the DDU, a specialist’s conclusion, confirmation of the developer’s notification about the inspection of the apartment by a specialist, as well as copies of the claim with confirmation of dispatch, receipts and inventory confirming the sending of the claim to the developer, and other evidence in the case.

After filing a claim in court, the plaintiff must take part in court hearings (usually there are 2-3 of them; when a forensic examination is ordered, or a specialist is called by the court to testify, additional court hearings are held) when considering the case in order to defend his rights, especially in the case of a statement by the defendant objections to the claim.

Important: If deficiencies in the quality of the finishing work performed are detected and the deadline for their completion is violated, the shareholder must rely on the Civil Code of the Russian Federation and the Law on the Protection of Consumer Rights (if the shareholder is an individual), and not on the norms of Law No. 214-FZ.

Step 4. Execution of the court decision to recover compensation for construction defects

Receiving a positive court decision to collect money from the developer is half the battle; the shareholder needs to ensure the execution of the court decision and collect money from the developer.

To begin with, let us stipulate that the court decision comes into force after a month from the date of production of the court decision in final form (full decision with a reasoning part), if none of the parties appealed the decision. If the decision is appealed, then the court decision comes into force on the day the decision is made by the appellate instance, but the shareholder must wait until the case is returned to the court of first instance to receive a writ of execution.

After the court decision comes into force, the shareholder must forcibly obtain a writ of execution from the court in order to recover the money. Next, the shareholder submits the writ of execution for collection in the prescribed manner (in addition to the writ of execution, it is necessary to prepare an application for recovery in accordance with the Federal Law on Enforcement Proceedings) to the bank in which the developer’s current account is opened (you can find out the accounts by sending a request to the tax authority), or to Bailiffs Department.

The process of actually receiving money from the developer is lengthy, often creative, and sometimes resembles operational search activities to search for accounts and property of the developer; in rare cases, the money is received by the equity holder immediately after submitting a writ of execution to the bank specified in the developer’s details in the DDU.

If the developer does not have enough money, but has any property (real estate, transport, accounts receivable, etc.), the shareholder will have to interact with the bailiff department, which, unfortunately, in practice, works inefficiently and inefficiently, and appeal the bailiff’s inaction to a higher authority authority and court.

In addition, a shareholder to whom the developer has not paid compensation for the cost of construction defects of a shared construction project (if the amount of compensation is more than 300,000 rubles and the delay is more than 3 months) has the right to apply to the court to declare the developer bankrupt. Often, such an appeal is effective in terms of inducing the developer to pay the money. But the shareholder needs to know the nuances of preparing, filing an application for bankruptcy in court, as well as the bankruptcy procedure itself.

In general, the procedure for collecting compensation from the developer for construction defects of an apartment in court takes on average 4-5 months, taking into account pre-trial settlement if the developer has funds in his accounts (if the case is heard only in the court of first instance and no forensic examination is carried out). If a shareholder or developer appeals a court decision on foreclosure, then an additional 2-3 months must be added to this period (on average, but sometimes more). In addition, a forensic examination increases the period for consideration of a case by several months (a forensic examination is appointed at the request of the developer or on the initiative of the court). Also, if the developer is experiencing financial difficulties, then the process of finding funds for collection can also take a long time. Thus, the period for collecting compensation for construction defects from the developer depends on various circumstances: the period for consideration of the court case, the time for the court to issue judicial acts, a writ of execution, the period for finding funds from the developer.

Important: Due to the fact that a forensic examination may be ordered in a lawsuit (at the initiative of the court or at the request of the defendant), we recommend that you refrain from making significant repairs to the property until the end of the trial. At the same time, if the apartment has a fine finish, then the shareholder can place furniture and live in it; a lawsuit to collect compensation for poor-quality finishing does not prevent this.

The shareholder has the right to make claims regarding the quality of the object both before acceptance and after acceptance within the warranty period. The general warranty period in accordance with Law No. 214-FZ is 5 years (for equipment - 3 years). At the same time, when making claims for compensation for poor-quality finishing work, the equity holder must be guided by the norms of the Civil Code of the Russian Federation and the Law on the Protection of Consumer Rights (for individuals), and not by the norms of Law No. 214-FZ. If the warranty period for finishing work is not established in the contract, then the shareholder has the right to make claims within 2 years from the date of transfer.

The Dvitex law firm has accumulated significant judicial practice in disputes with developers regarding the quality of construction. Some court decisions on our cases can be found in the “Won Cases” section (in each case you will find a detailed description of the case: developer, residential complex, court, judge, case number, declared amount of compensation and the amount recovered, the amount of penalties and fines recovered) .

Do you need a DDU lawyer? To assess the prospects for resolving a dispute with the developer and calculate the cost of services, call us at 8 (495) 223-48-91 or submit a request.

Order

Time limit for eliminating deficiencies in the statement of claim

The court itself sets a deadline for eliminating deficiencies. The judicial authorities provide a reasonable period for the person to eliminate the deficiencies. When determining a reasonable period, the court usually takes into account the complexity of the case (for example, if the persons are located in another region), and the behavior of the participants in the process. Within the deadline set by the court, the person must submit all missing documents, otherwise the application may be returned. If the person complies and submits documents on time, the application will be considered submitted on the day of initial submission.

If what is requested is not available, or you do not have time to obtain it from government agencies, then you must ask the court to extend the period for correcting the deficiencies or request documents from it, providing evidence of the impossibility of obtaining what you need on your own.

The deadline for sending you a ruling on leaving without movement is set as short as possible for the court - no later than the next day for sending, but the mail can fail, often the envelopes arrive too late and the party does not have time to react. What to do in this situation? Ask for the restoration of the period for eliminating the shortcomings, unless, of course, the court has already returned the claim. Then, unfortunately, the only possible option is to resubmit it or appeal the judicial act.

We are trying to resolve the conflict without trial

Before filing a claim, it is often necessary to send a claim to the potential defendant, which also needs to indicate a deadline for a response. By default, the usual response time is one month from the date of receipt of the complaint.

If during this time your requirements set out in the claim are not satisfied, you do not resolve the issue amicably, or the claim remains completely unanswered, then you can safely go to court. A mandatory claim procedure is provided for a significant part of claims; in addition, by filing a claim it is often possible to resolve the issue without bringing the matter to court. Whether you need to submit a claim before filing a claim, you can consult a lawyer or try to figure it out on your own:

https://www.consultant.ru/document/cons_doc_LAW_188617/

Important!

If the claim has one subject and basis, and the claim has another, the court will return the claim or leave it without consideration. For example, in a claim you demand to change the terms of the contract, and in a lawsuit you demand to terminate it. In such a situation, the court will not consider your claims.

Private complaint about leaving the claim without progress

Civil legislation provides for filing a private complaint against a ruling to leave an application without progress. A private complaint can be filed in the event of a court error, for example, the court indicated that there were not enough missing documents, although in fact the person provided them, this occurs quite often in judicial practice, since the courts consider many cases and have a heavy workload.

A complaint is drawn up to the court that is considering the case, the judge and the number of the case in which a decision was made to leave the application without progress is also indicated. In the complaint, the person must indicate why he considers the determination illegal and unfounded; he can refer to the law, indicate that the requirements were met and that the claim should be accepted. The person must justify his position and ask the court to accept the statement of claim for consideration of the case on the merits.

Read more about appealing a court ruling at the link so as not to dwell on it in this article.

Let's start with the “cap of the claim”

The first thing to do is to indicate to which court the application is being filed, who the defendant is, third parties and information about the plaintiff.

1. In the information about the plaintiff, you will need to indicate the full name or name of the organization, place of residence or location, if a representative is filing - also his data.

2. About the defendant you will need to indicate his full name or name and location or residence. Until January 1, 2021, the new edition of clause 3 of Art. 131 of the Code of Civil Procedure of the Russian Federation, which requires indicating the place where he was born and where he works, as well as one of the identifiers (inn, series and number of a passport or driver’s license, personal identification number, PTS) will do, if this information is known.

3. It is also advisable to indicate the price of the claim in the header - this is the cost of the claims, if they are subject to assessment. For example, if you are collecting a debt of 300 thousand rubles, then this amount will be the cost of the claim.

The procedure for filing a private complaint against a ruling to leave a claim without progress

Filing a private complaint is regulated only in civil procedural legislation. When the court has made a ruling, but a person does not agree with it, he can file a private complaint against the court ruling within 15 days. You can submit a complaint by email, postal mail or in person.

IMPORTANT : a complaint must be filed when a person is completely confident that there are circumstances in the determination that can be appealed. The period for consideration of the complaint should not exceed two months in case of appeal and within one month in cassation.

The state fee for a private complaint is not paid; a complaint to the court is filed free of charge. As documents, you must attach a copy of the ruling that is being appealed and copies of the complaint. The court considers this complaint and makes a decision to satisfy or reject the complaint on the grounds provided for by law.

Now the civil process is changing and in the new (not yet in force) legislation, filing a private complaint against a court ruling has been removed and they have decided to equate it with the arbitration process. From the moment the new courts operate, it will no longer be possible to file a complaint.

We declare our position

After the factual circumstances are described, you can move on to your opinion as to why the court should satisfy the requirements. In the case of the same lease agreement, you can indicate that the tenant did not pay rent more than two times in a row, indicating that this is the basis (clause 3 of Article 619 of the Civil Code of the Russian Federation) for terminating the contract.

Important! Due to the direct requirement of the law, when collecting funds, the claim must necessarily include a calculation. For example, you are collecting a penalty under a contract. In the claim, you will need to refer to the relevant clause of the contract and calculate the penalty using a formula or using a table that will need to be inserted into the claim.