The court left the statement of claim without progress since the copy of the statement was not signed, is this possible? The statement of claim itself has been signed.

Introduction

You can correct the abandonment of a claim without progress by filing an appropriate application “to eliminate deficiencies.” What is leaving a claim without progress!? Regulated - this is Art. 136 Code of Civil Procedure of the Russian Federation

The judge, having established that the statement of claim was filed in court without complying with the requirements established by Articles 131 and 132 of this Code, issues a ruling to leave the statement without progress.

In the ruling, the court indicates the grounds for leaving the statement of claim without progress and the period during which the plaintiff must eliminate the circumstances that served as the basis for leaving the statement of claim without movement.

clause 1 art. 136 Code of Civil Procedure of the Russian Federation

In this case, there is a violation of the rules of submission of either Art. 131 or Art. 132 Code of Civil Procedure of the Russian Federation. For example, a statement of claim could be left without progress because you did not follow the procedure for sending the parties to the claim and the attachment to it, which is enshrined in the new rules of Art. 132 Code of Civil Procedure of the Russian Federation.

The court ruling itself indicates what exactly you need to change (what documents to submit, pay the state fee, etc.) in order for the claim to be accepted by the court. But in addition to the correction, you need to give the correct procedural form to the application that you will submit to the court.

Commentary on Article 136 of the Code of Civil Procedure of the Russian Federation

1. Part 1 of the commented article establishes an exhaustive list of grounds for leaving a statement of claim without progress. These include:

1) failure to comply with the requirements regarding the form and content of the statement of claim established by Art. 131 Code of Civil Procedure. The information indicated in the statement of claim can be divided into: a) necessary (those that must be reflected in any statement of claim (clauses 1 - 5, 8, part 2, article 131 of the Code of Civil Procedure); b) optional (the need for them reflection in the text of a specific statement of claim depends on the nature of the claims (clause 6, part 2, article 131 of the Code of Civil Procedure) or on the existence of a pre-trial dispute in this category (clause 7, part 2, article 131 of the Code of Civil Procedure). Accordingly, the absence of the necessary information is unconditional entails leaving the statement of claim without progress, and in the absence of optional information, the court must check whether they really should be reflected in the statement of claim;

2) failure to comply with the requirements for documents attached to the statement of claim (see commentary to Article 132 of the Code of Civil Procedure). Can the court leave the statement of claim without progress in cases where the plaintiff has not attached documents confirming the circumstances on which he bases his claims? Literal interpretation of paragraph. 5 tbsp. 132 of the Civil Procedure Code and part 1 of the commented article gives an affirmative answer to this question. And yet we believe that leaving the statement of claim without progress on this basis initially contradicts the principle of dispositiveness, since the presentation of evidence is the subjective right of the plaintiff, and all the adverse consequences of such failure to present it can consist solely in the court’s refusal to satisfy the claim. It is also impossible not to take into account that, by checking the availability of written evidence substantiating the basis of the claim, the court solves the task of determining the subject of proof, which is unusual at the stage of initiating a case. Therefore, we believe that leaving the statement of claim on the grounds of violation of the requirements established by paragraph. 5 tbsp. 132 Code of Civil Procedure, unacceptable.

The novelty is the indication in the commented norm that the period for correcting deficiencies must be reasonable. However, the Supreme Court of the Russian Federation has previously indicated that the duration of the period for correcting shortcomings should be determined in each specific case, taking into account the nature of the shortcomings of the application and the real possibility of correcting them <1>. Unfortunately, in practice, a very common situation is when by the time the plaintiff receives a ruling to leave the statement of claim pending, the period for correcting the deficiencies has already expired.

——————————— <1> See paragraph 2 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of April 14, 1988 No. 2 “On the preparation of civil cases for trial.”

If the plaintiff does not meet the deadline set by the court, he has the right to file a petition for its extension (Article 111 of the Code of Civil Procedure).

When making a ruling, the court must not only refer to any part, clause or paragraph of Art. Art. 131, 132 of the Code of Civil Procedure, but also indicate a specific deficiency that should be eliminated by the plaintiff.

The period during which the court must make a ruling to leave the statement of claim without progress is not directly regulated by the Code of Civil Procedure, but within the meaning of Art. 133 of the Code of Civil Procedure, such a determination must be made within the period during which the court is obliged to generally consider the issue of accepting the statement of claim for proceedings. Consequently, a determination to leave the statement of claim without progress must be made within five days from the date of receipt of the statement of claim by the court.

2. Part 2 of the commented article establishes the legal consequences of both elimination and failure by the plaintiff to eliminate the shortcomings specified in the court’s ruling to leave the statement of claim without progress.

How does the plaintiff eliminate these shortcomings?

If the documents listed in Art. 132 of the Code of Civil Procedure, then the relevant documents must be submitted to the court in the manner established for filing claims (see commentary to Part 1 of Article 131 of the Code of Civil Procedure). Procedurally, these documents must be attached to the plaintiff’s corresponding petition, which should: a) refer to the court’s earlier decision to leave the statement of claim without progress; b) state a request to attach the attached documents to the case materials.

If the plaintiff has violated the requirements regarding the form and content of the statement of claim, he can either prepare a new (corrected) statement of claim, or make up for its deficiencies in a separate statement, indicating the necessary information. Since the adjustment of the content of the statement of claim affects the rights of persons participating in the case, the plaintiff, taking into account the requirements of paragraph. 2 tbsp. 132 of the Code of Civil Procedure, must attach copies of the relevant document for the other persons participating in the case.

If the new statement of claim is not served at a personal reception with the judge, it is advisable to separately state the corresponding covering letter (application).

With regard to the institution of limitation of actions, the Supreme Court of the Russian Federation especially emphasizes that if the plaintiff timely fulfills all the requirements set out in the judge’s ruling to leave the application without progress, this application is considered filed on the day of its initial submission to the court, and it is from this time that the running of the period is interrupted limitation period <1>.

——————————— <1> See paragraph. 6 p. 15 of the Resolution of the Plenum of the Supreme Court of the Russian Federation and the Plenum of the Supreme Arbitration Court of the Russian Federation of November 12/15, 2001 N 15/18 “On some issues related to the application of the rules of the Civil Code of the Russian Federation on the limitation period” (BVS RF. 2002. N 1).

If the applicant fails to comply with the judge’s instructions listed in the ruling within the prescribed period, the application is considered not filed and is returned to the applicant with all documents attached to it. The court issues an appropriate ruling on the return of the statement of claim.

Unfortunately, the Code of Civil Procedure does not indicate the period within which this determination must be made. Meanwhile, the application of the five-day period established by Part 2 of Art. 135 of the Code of Civil Procedure is impossible in this situation, since it is counted from the date the application is received by the court. Using the analogy of the law, one should refer to Part 4 of Art. 128 of the APC, which, in turn, refers to Part 3 of Art. 129 of the Arbitration Procedure Code, which establishes that a copy of the ruling on the return of the statement of claim is sent to the plaintiff no later than the next day after the expiration of the period established by the arbitration court to eliminate the circumstances that served as the basis for leaving the statement without progress. Obviously, in order to send a copy of the determination, it must first be rendered. Consequently, the ruling on the return of the statement of claim on the grounds of Part 4 of Art. 128 of the APC must also be issued no later than the next day after the expiration of the period established by the arbitration court to eliminate the circumstances that served as the basis for leaving the application without progress.

At the same time, it should be taken into account that in accordance with Part 3 of Art. 108 of the Code of Civil Procedure, the deadline for eliminating deficiencies will not be considered missed if the necessary documents were submitted by mail before 24 hours of the last day of the procedural period. Therefore, in cases where by the time the deadline established by the court in accordance with Part 1 of the commented article expires, no documents have been received from the plaintiff at all, the court, logically, should postpone the issuance of a ruling on the return of the statement of claim for a period equal to the postal mileage.

3. A private complaint may be filed against a court ruling to leave a statement of claim without progress. There was no similar provision in the Code of Civil Procedure of the RSFSR, which ultimately led the Plenum of the Supreme Court of the USSR to the conclusion that an appeal against a ruling to leave an application without progress is not allowed, except in cases where it was made on the grounds of non-payment of state duty <1>. However, this rather controversial interpretation was refuted by the Constitutional Court of the Russian Federation, which indicated that neither Art. 130 of the Code of Civil Procedure of the RSFSR, nor other norms of the Code of Civil Procedure of the RSFSR “do not contain a direct prohibition on a cassation appeal of a court ruling to leave the statement of claim without progress. According to Part 1 of Art. 315 of the Code of Civil Procedure of the RSFSR, in cases where the ruling of the court of first instance blocks the possibility of further progress of the case, it can be appealed (or protested) in cassation proceedings separately from the decision of the court of first instance, even if the right to file such a complaint is not directly provided for by the rules of civil procedural law.” <2>. At the moment, there are judicial acts in which rulings on leaving an application without progress were the object of challenge, which allows us to draw a conclusion about the position of the Supreme Court of the Russian Federation <3>.

——————————— <1> See paragraph 2 of the Resolution of the Plenum of the Supreme Court of the USSR of December 1, 1983 No. 10 “On the application of procedural legislation when considering civil cases in the court of first instance.” Currently, this judicial act is recognized as not valid on the territory of the Russian Federation. <2> Determination of the Constitutional Court of the Russian Federation of July 13, 2000 N 194-O // Supreme Court of the Russian Federation. 2001. N 1. <3> See, for example: Review of legislation and judicial practice of the Supreme Court of the Russian Federation for the first quarter of 2007. Approved by the Resolution of the Presidium of the Supreme Court of the Russian Federation of May 30, 2007 // BVS RF. 2007. N 10.

Who can appeal a ruling to leave a claim without progress? We believe that such persons should include only subjects whose procedural rights are directly affected by the ruling: the plaintiff, a third party making independent claims regarding the subject of the dispute, the prosecutor, as well as persons who have applied to the court for the protection of other people’s interests in accordance with Art. 46 Code of Civil Procedure.

In case of cancellation of the ruling, the statement of claim must be considered filed on the day of the initial application to the court.

4. What legal consequences are entailed by the court’s violation of the requirements of the commented article on leaving the statement of claim without progress? After accepting the case for proceedings, the court does not have the right to make a ruling on leaving the statement of claim without progress, since this institution is applicable only at the stage of initiating a civil case <1>. An initiated civil case cannot be subsequently terminated on the grounds provided for leaving a statement of claim without progress (Article 220 of the Code of Civil Procedure). Likewise, the institution of leaving an application without consideration cannot be applied (Article 222 of the Code of Civil Procedure). Therefore, in the absence of other obstacles, the case should be considered on its merits. The Supreme Court of the Russian Federation, in relation to the proceedings in the cassation court, indicated the following: “If at the stage of cassation consideration it is established that the party has not paid, has not paid the state fee, it is impossible to withdraw the case from consideration, since the Code of Civil Procedure does not grant the cassation court such a right. The cassation court should act similarly to the first instance court, which found itself in a similar situation, when the statement of claim, not paid with the state duty in the established amount, was mistakenly accepted by the judge for proceedings, and not left without progress in accordance with Art. 136 of the Code of Civil Procedure: consider the case and resolve the issue of additional collection or collection of the state duty in the cassation ruling, taking into account the rules of Art. 98 Civil Procedure Code "<2>.

——————————— <1> See: Review of judicial practice of the Supreme Court of the Russian Federation for the fourth quarter of 2001. Approved by the Resolution of the Presidium of the Supreme Court of the Russian Federation of April 24, 2002 // BVS RF. 2002. N 8. <2> Answers of the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation to questions from courts on the application of the norms of the Code of Civil Procedure of the Russian Federation. Approved by the Presidium of the Supreme Court of the Russian Federation on March 24, 2004.

How to write a statement about the elimination of deficiencies

The header of the application is the same as it was in the statement of claim, only we add the name of the judge, which we now know (it is in the court ruling) and the entry number - optional. We will indicate them on the right in the corner after the header.

In the middle of the statement we write the following:

STATEMENT regarding elimination of deficiencies

Next is the following text:

The Kirov District Court of St. Petersburg issued a ruling on October 10, 2022. about leaving without movement the statement of claim of Ivanov I.I. to LLC "ROMASHKA" on the protection of consumer rights. The reason for leaving the statement of claim without progress was that this claim cannot be considered within the framework of the law on the Protection of Consumer Rights, and therefore the plaintiff needs to calculate the cost of the claim, provide a sheet for calculating the amounts recovered, and also pay the state fee. The plaintiff, in pursuance of this court ruling, paid the state fee to the court, which he attached to this application along with the calculation sheet.

Here, in the example, the plaintiff did not pay the state fee to the court and the court left the statement of claim without progress, indicating to the plaintiff the need to pay the state fee, as well as provide a calculation sheet (where to indicate and calculate the price of the claim).

This application must be signed and sent to the court and the parties to the process, also by registered letters in accordance with rules 132 of the Code of Civil Procedure of the Russian Federation.

Form and content of the statement of claim

For a statement of claim (as well as for any other application to the court), a mandatory written form is established.

The statement of claim must indicate:

1. Name of the court to which the application is filed;
2. The name of the plaintiff, his place of residence or, if the plaintiff is an organization, its location, as well as the name of the representative and his address, if the application is submitted by a representative;
3. The name of the defendant, his place of residence or, if the defendant is an organization, its location;
4. What is the violation or threat of violation of the rights, freedoms or legitimate interests of the plaintiff and his demands;
5. The circumstances on which the plaintiff bases his claims and evidence supporting these circumstances;
6. The price of the claim, if it is subject to assessment, as well as the calculation of the amounts collected or disputed;
7. Information on compliance with the pre-trial procedure for contacting the defendant, if this is established by federal law or provided for by the agreement of the parties;
8. List of documents attached to the application.

The application may indicate telephone numbers, fax numbers, email addresses of the plaintiff, his representative, the defendant, other information relevant to the consideration and resolution of the case, as well as the plaintiff’s requests.

The statement of claim must be signed by the plaintiff or his representative if he has the authority to sign the statement and present it to the court.

According to Art. 132 of the Code of Civil Procedure of the Russian Federation, the following must be attached to the statement of claim:

1. its copies in accordance with the number of defendants and third parties;
2. a document confirming payment of the state duty;
3. power of attorney or other document certifying the authority of the plaintiff’s representative;
4. documents confirming the circumstances on which the plaintiff bases his claims, copies of these documents for defendants and third parties, if they do not have copies;
5. the text of the published normative legal act in case of challenge;
6. evidence confirming the implementation of the mandatory pre-trial dispute resolution procedure, if such a procedure is provided for by federal law or agreement;
7. calculation of the recovered or disputed amount of money, signed by the plaintiff, his representative, with copies in accordance with the number of defendants and third parties.

What to attach to the application for elimination of deficiencies

In fact, according to the norms of the Code of Civil Procedure of the Russian Federation, you do not need to attach anything, but I advise you to attach a determination on leaving without movement (more precisely, a copy of it). So, it will be faster and easier for the office and the judge himself to navigate and determine whether everything has been corrected, and as a result, make a quicker decision on setting a court date.

If you had any shortcomings in paying the state duty or need to provide any documents, then, of course, you need to attach them in originals or copies. If the receipt for payment of state duty is the original! And don’t forget to send copies of documents to the participants in the future process that are indicated in your statement of claim - the defendant, third parties, the prosecutor’s office, etc.

The procedure for filing and considering a request to correct typos in a decision

The petition is submitted to the court that made the decision. This can be done in several ways, for example:

• on purpose, through the office;
• by mail;
• through electronic judicial resources.

As a general rule, the court considers the petition without calling the participants in the process and makes a ruling on this, which interested parties have the right to appeal (part 4 of article 179 of the Arbitration Procedure Code of the Russian Federation, part 2.1 of article 184 of the CAS RF).

Leaving a claim without progress is not a refusal!

You need to understand that abandoning the statement of claim is not a refusal to accept the statement of claim, it has almost already been accepted by you, all that remains is to make minor adjustments (deliver documents) and eliminate the shortcomings that the court has identified that prevent the acceptance of the claim. But you need to remember that these shortcomings must be eliminated within the time period specified in the court ruling, otherwise all documents will be returned to you, as a rule, by mail!

If the circumstances specified in part one of this article are not eliminated within the period established in the ruling on leaving the application without progress, the court returns the statement of claim and the documents attached to it in the manner established by Article 135 of this Code.

Clause 3 of Article 136 of the Code of Civil Procedure of the Russian Federation

But you can always submit the documents after eliminating the deficiencies again. However, it should be noted that the deadlines (including the limitation period) cease to run after filing a claim in court, and if you correct the claim in accordance with the ruling on leaving without movement, then the application will be considered filed on the date of acceptance of your initial claim, but If the documents are returned and you resell the statement of claim, then the period will stop running from the moment the claim is filed again.

If the applicant, within the prescribed period, fulfills the instructions of the judge listed in the ruling on leaving the application without progress, the application is considered submitted on the day of its initial submission to the court.

Clause 2 of Article 136 of the Code of Civil Procedure of the Russian Federation

What to do if the statement of claim is left without progress

The court leaves the statement of claim without movement if there are legal grounds for this, and despite the fact that no matter how competent and detailed it may be from the point of view of substantive law. A determination will be made if:

• the text of the application does not meet the requirements established in Article 131 of the Code of Civil Procedure of the Russian Federation;
• The required documentation package is not attached. In each case, its list will be individual, but the general requirements are defined in Article 132 of the Code of Civil Procedure of the Russian Federation.

The court has no right to postpone the acceptance of the claim for other reasons. At the same time, if correction of the deficiencies in a short period of time is possible, then a determination is made to “immobilize” the application, and if not, then the claim is returned to the applicant.

The plaintiff, who has received a ruling to leave without movement, has the right to choose one of the options:

1. Submit an application and ask the court to return the claim and documents. In this case, he can correct the shortcomings and contact again at any time. Some people believe that after this it will not be possible to file the same claim again, but this is not true. A citizen loses his right, for example, if the case was considered and the demands were denied.
2. Correct the deficiencies within the period established by the court. As a rule, the definition specifies the date within which documents must be “reported,” a petition for clarification must be filed, and so on, depending on the shortcomings.
3. Appeal the ruling. If the applicant does not agree with the court, he has the right to file a complaint against the said ruling within a period not exceeding 15 days from the date on which it was issued. The appeal is made through the appellate procedure.

If the applicant decides to eliminate the shortcomings indicated by the court, the court will examine the amended claim or documents and only after that will civil proceedings be initiated. That is, the judge will accept the application for consideration.

Appeal against the determination

An appeal against leaving a statement of claim without progress is carried out by filing a private complaint. The period for appeal is 15 days.

The period is calculated from the date the document is issued, not its receipt. If a citizen receives a determination late, he has the opportunity to restore the deadline missed for a valid reason.

In practice, appealing a determination does not always make sense. In some cases, it is easier to file a new claim, since its return on this basis does not deprive the right to reapply. An appeal takes much longer. But each case must be considered individually.

Correction of deficiencies

Most often, in practice, applicants correct existing deficiencies rather than appeal the determination. To do this, you need to indicate in free form exactly what shortcomings were corrected and what was done for this, for example, incorrectly specified previously details are clarified or missing documents are attached.

The document submitted is called a “statement to correct deficiencies.” It indicates the details of the claim initially filed. Also, the plaintiff can file a new claim to replace the old one, if we are talking about eliminating deficiencies in accordance with Article 131 of the Code of Civil Procedure of the Russian Federation. Such a document will be called an “adjusted statement of claim.”

The application is sent by mail, or submitted to the court in person or through a representative. The number of copies is prepared according to the number of parties, including for the court. Essentially, an amended claim is filed according to the general rules that apply to ordinary claims.

How to correct the abandonment of a claim without progress if there is not enough time to fulfill the court’s demand.

It is not uncommon that the requirements presented to the plaintiff by the court contain the need to collect documents, while the period specified in the ruling on leaving the statement of claim without progress is clearly not sufficient to obtain such documents through the same MFC.

In this case, you must order these documents (paying a fee for them, if necessary). Next, make a photocopy of the application to receive these documents and send an application to the court with a request to extend the period for correcting the shortcomings that prevent the court from accepting the statement of claim. Attach a copy of the application for requesting documents to this application to the court.

It is advisable to indicate the period in the application that you are asking for an extension to leave the statement of claim without progress.

Typical mistakes in statements of claim

Errors are considered to be:

• typos;
• incorrect arithmetic calculations;
• grammatical errors and inaccuracies;
• absence of mandatory documents in the attachments - for example, a power of attorney for a representative if he signed the papers.

To avoid annoying misunderstandings, we recommend that you take your time and carefully re-read the completed claim again. It is imperative to check the correctness of the parties’ details, these agreements, acts, orders, the accuracy of calculations, and the presence of all required attachments.