THE ILLEGAL DECISION OF THE COURT TO RECOVER FUNDS IN THE AMOUNT OF MORE THAN 2 MILLION RUBLES FROM OUR CLIENT ON THE BASIS OF FALSIFIED DOCUMENTS WAS CANCELED

Success in litigation often depends on the timeliness of the actions taken, so it is imperative that the lawyer dealing with your case is not only wise to form a competent legal position, but he does it within the deadlines established by law or by contract.

In October 2018, a Client appealed to us for assistance in a rather unusual situation. From the file of arbitration cases, he accidently found out about collecting 2.3 million rubles from him in favor of an unknown society. The grounds for such  court decision were also unknown., as the court prepared only the operative part of the decision in the case considered in the simplified proceedings (without summoning the parties).

The emergency of this situation was that only four days remained before the appeal against the court decision expired, and we did not have at our disposal the primary materials of the case for their analysis and preparation of the appeal.

The procedure of acquaintance with materials of court cases of Arbitration Court of the Moscow Region, which considered the case as the first instance court, provides for the issuance of cases’ documents for review by appointment one week after filling the application. Given the short deadlines for appeal, we appealed to the assistance judge who examined the claim and demanded to give us the materials as soon as possible, because in fact, our client was not duly notified. The very next working day, we received all the materials of the case for review and began to study them.

As we became aware, an organization located in St. Petersburg and declared bankrupt filed a statement of claim against our client on the basis of a forged assignment agreement, as the signature on it did not belong to our Principal.

Within two working days, we prepared a reasoned appeal against the decision of the court of the first instance, containing the following arguments:

1)  the Defendant (our Principal) was not properly notified of the court proceeding;

2)  having violated Part 5 of Article 4 of the Administrative and Legal Code of the Russian Federation, the Plaintiff sent a pre-trial claim not to the address of our Client (office was indicated instead of the apartment);

3) the statement of claim were not subject to acceptance to consider in the simplified order, because the amount of the claim in the present case was more than 2.3 million Rubles, while due to the provisions of the Administrative and Legal Code of the Russian Federation only claims against individual entrepreneurs with amount of no more than 250 thousand Rubbles can be considered in the simplified order;

4) documents submitted by opponents in support of the Client’s debt are falsified (the client claimed falsification of evidence);

5) the cession agreement was signed by an unauthorized person (general director at the stage of bankruptcy proceedings);

6) the court of the first instance did not give a legal assessment of the reality of the ceded claim, and therefore did not establish the circumstances that are the basis for satisfying the claim.

Thus, we managed to file an appeal to the court within the prescribed period, which saved our client from the need to ask the court to restore the missed procedural period.

Having acquainted with our appeal, The Tenth Arbitration Court of Appeal agreed that the court of the first instance did not properly inform our client about the court proceeding, as well as illegally considered the claim in the simplified order (without summoning the parties).

In such circumstances, the Tenth Arbitration Court of Appeal issued a ruling on the consideration of the case according to the general rules established for the court of the first instance, and also set a court date.

On December 24, 2018 in the framework of the court session, we filed petitions for leaving the claim without consideration due to non-compliance with the pre-trial procedure for the settlement of the dispute, the exclusion of the Cession agreement from the evidence in the case in connection with the statement about falsification of proof, the Plaintiff’s obligation to submit the original Cession agreement and readiness to carry out handwriting examination of the signature on the assignment agreement.

Having heard our explanations in the case the Court of Appeal adopted a decision to annul the decision of the court of the first instance to recover ~ 2.3 million Rubles from our Client and dismissed the claim, having agreed with our position regarding the Plaintiff’s non-compliance with the pre-trial procedure for the settlement of the dispute.

We are currently tracking open source information about our client’s legal case in order to send the necessary procedural documents to the courts in a timely and efficient manner.

Y.S.Bulut, lawyer of MCBA “Bureau of Lawyer “De jure”, prepared the position on this case and represented the interests of our Client in the Court of Appeal.