Information letters from the Presidium of the Russian Federation. Set-off of counterclaims

The entry is dedicated to my friend and colleague, Timur Fakhretdinov, with whom we once wrote a book about offsetting obligations back in 2006. This recording is my gift to him for his birthday, which he celebrates today.

There is one very old question in the offset of obligations: if one debt is confirmed by a court decision and the other is not, is offset based on a unilateral application of one of the creditors permissible?

Usually the answer was negative - no, impossible.

What is this connected with?

It seems to me that the root of the position that to set off claims in respect of which a trial took place against claims in respect of which there was no such trial lies in the depths of the history of the development of offset.

In some jurisdictions (Romanian), set-off is considered to have an eo ipso effect, that is, the mere coincidence of counterclaims terminates them. Therefore, the defendant only needs to object in court (or later, during enforcement proceedings) that the claim has already ceased, since a set-off occurred.

In other jurisdictions (German) a statement is required for offset; offset does not occur by itself. Russia belongs to the second type of jurisdiction; in our case, offset requires a statement from the party.

Accordingly, the question arises: in what form should a statement be made if a claim is filed in respect of one claim?

Russian procedural law establishes such a basis for filing a counterclaim as the possibility of counting against the original claim.

From this provision, practice has come to the conclusion that offset against the claim for which the claim was filed is possible only by filing a counterclaim (clause 1 of the Information Letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated December 29, 2001 No. 65 “Review of the practice of resolving disputes related to termination of obligations by offsetting similar counterclaims").

Moreover, paragraph 2 of Review No. 65 specifically emphasizes that at the stage of enforcement proceedings, offset is possible if both requirements are confirmed by writs of execution.

At first glance, everything is quite simple and reasonable.

But at one time I was interested in one thing for quite a long time.

If we discard all dogmatic reasoning about the predetermination of the procedural form of the application for set-off (by filing a counterclaim) in the event of a claim being brought on one of the claims, then the following picture is clearly visible.

What is the fundamental difference between a claim for which there was a court decision and a claim for which there was no such decision? One thing is clear and definite, there is no longer any doubt about the existence of this debt.

What about the other requirement? Apparently there are some problems with it; it is controversial. Otherwise, why didn’t the defendant file a counterclaim when the debt was collected from him? Or even more broadly - was it not because the plaintiff brought the claim because he believed that he had no reciprocal obligation towards the defendant? It follows from this that, from the point of view of the controversial issue of the existence of a valid counter-obligation suitable for offset, it would be very desirable for it to become the subject of investigation by the court.

Here we need to remember one more quality of obligations that are counted (and which, by the way, is absent in our Civil Code) - this is the requirement indisputability both obligations (it was put forward by some legislation, it is widely discussed in the theoretical literature on offset; part of its trace is in the previous (before PPVAS 12990/11) practice of arbitration courts, which did not allow the offset of penalties or losses against the principal debt due to the controversy of the first ).

It turns out that the claim, confirmed by the court, is indisputable; and that which is not confirmed by a judicial act - controversial. Therefore, offset is not allowed. Procedural issues related to the execution of a judicial act, it seems to me, are only a technique of enforcement proceedings.

A continuation of this is the requirement for a strict procedural form of offset not only at the stage of the judicial act, but also at the stage of enforcement proceedings. About this - the already mentioned paragraph 2 of Review No. 65, as well as the provisions of Art. 88.1 of the Federal Law on enforcement proceedings, which establishes that the offset of claims on which judicial acts have taken place is allowed on the basis of a decision of the bailiff. Apparently, the law does not provide for any other form of offset at this stage of the parties’ relationship.

This has been an established practice for 15 years.

And then there's the economy. the Supreme Court panel appears to be moving away from it.

The plot of the case is as follows.

15.6 million rubles were recovered from SZLK in favor of IDGC, the decision came into force, the writ of execution was issued on 06/11/2013.

SZLK filed a claim on December 20, 2012 for the recovery of 2.2 million rubles from IDGC, then increased the demand to 22.9 million rubles, subsequently the plaintiff was replaced (in connection with the assignment; SZLK itself ceased as a result of joining a certain LLC) to the Leader-Stroy company.

As a result, in this case, 11 million rubles were recovered from IDGC in favor of Leader-Stroy. Spanish the sheet was issued on November 12, 2013.

By letter dated November 5, 2013, IDGC notified Leader-Stroy of offsetting its claim against the original creditor (SZLK) with Leader-Stroy’s claim against IDGC in the amount of 11 million rubles. The letter was received by compensation on November 8, 2013.

Apparently, a dispute arose between the parties as to whether the offset took place or not, since IDGC filed a lawsuit to declare the obligations terminated by offset.

The courts upheld the claim, recognizing that “the failure of IDGC to file a counterclaim is not a basis for limiting IDGC’s right to set-off” (permanent FAS NW).

Apparently, the essence of Leader-Stroy’s position was that the procedural form of the test was violated, so it did not take place.

It seemed to me that the reasons for the dispute are simple.

IDGC is a large organization with serious assets; collection of debt from it during enforcement proceedings is more than likely; one other person involved in the offset - SZLK - no longer exists, it was merged with another LLC, the likelihood of satisfying the requirement for which is most likely extremely low.

Therefore, IDGC is fighting to reduce the amount of debt that will be collected from it to zero (after all, IDGC will most likely never receive its debt from the legal successor of SZLK in the amount of 15.6 million rubles).

Judge of the Supreme Court I.A. Bukina considered Leader-Stroy’s arguments about IDGC’s violation of the procedural form of offset at the stage of enforcement proceedings worthy of attention and referred the case for consideration on the merits at a board meeting.

However, the panel did not agree with the judge and upheld the judicial decisions.

The motivation for the definition is rather meager and unclear; the motives of the board are not at all clear from it, for example, why it did not agree with the idea that since at the stage of judicial proceedings a special procedural form of offset is required - a counterclaim, then why can it be deviated from in the executive order? production (conformation sheet versus execution sheet, as was once assumed by the Supreme Arbitration Court of the Russian Federation in paragraph 2 of review No. 65).

It seems to me that the idea of ​​“offsetting the writ only against the writ” is based on the same principle of protecting the interests of a person who has a “stronger” claim, confirmed by a judicial act that has entered into legal force, against a less “strong” claim, which not confirmed by such an act.

However, in this case, the Supreme Court declared the offset to be the “stronger one” - the person who already had a claim in his hands. sheet - IDGC. It was he who asked to set off his demand against the “weak” demand, which was not confirmed by the sheet. Since he himself refused the guarantee that the law (and judicial practice) gives him, then why not allow such a set-off, even if not done in the proper procedural form?

If under this definition the sun really lies this idea (which we don’t know about and we can only guess and grieve that Russian judges, even knowing how to correctly resolve cases on the merits, are completely incapable of motivating their decisions well), then in fact the next step inevitably should be like this : why not allow a set-off at the plaintiff’s request for a claim in respect of which a judicial act has taken place, against a claim against the plaintiff in respect of which a judicial act has not yet taken place (or even proceedings have not been initiated)?

After all, such a compensator himself refuses those benefits and guarantees that a judicial act gives him (enforceability, indisputability, etc.).

It seems to me that if we forget for a second about dogma (the procedural form of offset in court is a counterclaim) and try to simply imagine for whose sake it exists, then I have no doubt that the offset of a claim confirmed by the court against an unconfirmed one should be admitted

The only problem is that the judicial panel did not explain all this to us.

Although it very well could.

This form has been developed in accordance with the provisions of Art. 410 Civil Code of the Russian Federation, art. 88.1 of the Federal Law of October 2, 2007 N 229-FZ “On Enforcement Proceedings”

To the bailiff
[name and address of the structural unit
territorial body of the FSSP of Russia,
Full name of the bailiff]

from [procedural status,
name, details ]

enforcement proceedings N [value]

Statement
on the offset of counter homogeneous claims under writs of execution (the application is sent to the bailiff who is conducting the proceedings under the writ of execution)

You are under execution of enforcement proceedings from [day, month, year] N [value] in relation to [name, details of debtor 1]. Enforcement proceedings were initiated on the basis of a writ of execution series [enter the required] N [value] for the recovery from [name of debtor 1] in favor of [name, details of debtor 2] funds in the amount of [amount in figures and words] rubles issued by [name of court, who issued the writ of execution, date, month, year of issue] in case N [value].

Also, the execution of the bailiff [name and address of the structural unit of the territorial body of the FSSP of Russia, full name of the bailiff] is pending enforcement proceedings from [day, month, year] N [value] in relation to [name, details of the debtor 2]. Enforcement proceedings were initiated on the basis of a writ of execution series [enter the required] N [value] for the recovery from [name of debtor 2] in favor of [name, details of debtor 1] funds in the amount of [amount in figures and words] rubles issued by [name of court, who issued the writ of execution, date, month, year of issue] in case N [value].

These demands are counter and homogeneous, the deadline for fulfillment of both demands has arrived.

Based on the above, guided by Article 410 of the Civil Code of the Russian Federation, Articles 6, 14, Clause 16.1 of Part 1 of Article 64, Article 88.1 of the Federal Law of October 2, 2007 N 229-FZ “On Enforcement Proceedings”,

1. Offset similar counterclaims for enforcement proceedings from [day, month, year] N [value] and from [day, month, year] N [value] in the amount of [amount in figures and words] rubles.

1) a copy of resolution N [value] dated [year, month, date] of the bailiff [name and address of the structural unit of the territorial body of the FSSP of Russia, full name of the bailiff] on the initiation of enforcement proceedings;

2) a copy of the writ of execution series [enter the required] N [value], issued by [name of the court that issued the writ of execution, date, month, year of its issue].

[position, signature, initials, surname]

[ day month Year ]

Sample form of an application for offset of counter homogeneous claims under writs of execution (the application is sent to the bailiff who is conducting the proceedings under the writ of execution)

Developed by: Garant Company, December 2017

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In the process of executing court decisions, a situation may well arise where the same persons have similar obligations to each other, then the enforcement proceedings can be completed by filing an application for offset of similar claims. If the volume of demands between the parties to the proceedings is the same, the enforcement proceedings are completed in full; if not, they are completed partially.

The possibility of offsetting homogeneous claims is enshrined in Art. 410 of the Civil Code of the Russian Federation, judicial practice is based on the possibility of carrying out such a procedure at any stage of enforcement proceedings.

Application for offset of similar counterclaims(29.5 KiB, 299 hits)

Example of an application for set-off of counterclaims of the same type

Application for offset of similar counterclaims

In the production of the OSP in the Mikhailovsky district of the Amur region, there is enforcement proceedings No. 13452/23/2015 dated November 14, 2015, initiated in accordance with the writ of execution No. 2-523 dated October 30, 2015, issued by the magistrate of the Mikhailovsky judicial district, subject of execution : collection of funds in the amount of 41,000 rubles. under a loan agreement with the debtor, Konstantin Igorevich Kolomeytsev, under which I am the claimant. The requirements of the writ of execution were fulfilled in the amount of 15,000 rubles, which were received in accordance with the foreclosure of the debtor’s property (cash deposited in the bank).

In addition, in the OSB for the Mikhailovsky district of the Amur region there is enforcement proceedings No. 342434/265/2015 dated December 10, 2015: in accordance with the statement of Kolomeytsev K.I. on the initiation of enforcement proceedings and writ of execution No. 2-823 dated December 8, 2015, issued by the magistrate of the Mikhailovsky judicial district for the recovery of funds in the amount of 20,000 rubles. due to damage to property for which I am a debtor.

Since there are 2 writs of execution containing homogeneous demands for the collection of funds, Art. 410 of the Civil Code of the Russian Federation allows you to terminate the obligation in whole or in part by offset. Grounds preventing offset and enshrined in Art. 411 of the Civil Code of the Russian Federation, absent.

Based on the above, guided by Art. 410 Civil Code of the Russian Federation, art. 6, 14 of the Federal Law “On Enforcement Proceedings”,

1. Offset similar counterclaims in the amount of 20,000 rubles;
2. Consider the debtor - Alexander Yuryevich Remezov - to have fulfilled the requirements of the writ of execution for enforcement proceedings No. 342434/265/2015 dated December 10, 2015 in full and within the time limit established for voluntary execution;
3. Consider the balance of the debt of the debtor - Kolomeytsev Konstantin Igorevich - according to the writ of execution within the framework of enforcement proceedings No. 13452/23/2015 dated November 14, 2015, equal to 6,000 rubles.

Remezov A.Yu. 12/12/2015

Grounds for filing an application for offset of similar claims

The absolute basis for filing such an application is the presence of writs of execution, according to which the claimant and the debtor have counterclaims. On the basis of such sheets, enforcement proceedings should be initiated. The deadline for fulfilling such obligations must already have expired. If a civil dispute is still being considered, then the bailiff can submit an application to postpone enforcement actions, wait for the court decision to be rendered and enter into force, and only then make an offset.

The requirements between the parties to enforcement proceedings must be homogeneous: for example, the collection of funds. It is impossible to terminate an obligation by offset when it arises from relations for compensation for harm to life or health, for the collection of alimony, the statute of limitations for which has expired, or this is a requirement for lifelong maintenance. All other requirements can theoretically be passed. But judicial practice sometimes proceeds from the fact that obligations must arise from homogeneous legal relations. Here everything depends on the experience and legal position of the bailiff, since the explanation of the Presidium of the Supreme Arbitration Court directly states that the obligations during offset may not be identical or homogeneous.

Drawing up and submitting an application for offset of homogeneous claims

Any of the parties to the enforcement proceedings can prepare such a statement; the desire of the other party has no legal significance. That is, to carry out the test, the will of one person is sufficient. The bailiff, on his own initiative, does not have the right to offset claims.

When drawing up the document, it is necessary to indicate within the framework of which enforcement proceedings it is possible to offset claims and to what extent. The position of the other party will not be taken into account when making a decision.

An application for offset of similar claims is submitted to the bailiff, who, based on the results of its consideration, issues an appropriate decision. If the application is satisfied and the requirement is fulfilled, you can submit an application to end the enforcement proceedings, perhaps the bailiff will make such a decision himself.

It is impossible to challenge a ruling on the offset of similar counterclaims solely on the basis of the other party’s disagreement; proof of the heterogeneity of the claims, the expiration of the statute of limitations, etc. is required.

The decision to offset claims or to refuse such offset can be appealed within 10 days by filing a complaint against the actions of the bailiff to the court or to a higher official.

Should the agreement on termination of offset be signed by the chief accountant in addition to the director?

No, not necessarily.

The application for offset is signed by the head of the company (Clause 1 of Article 53 of the Civil Code of the Russian Federation) or its representative by proxy. If the application bears the signature of an unauthorized person, the court will recognize the offset as an invalid (void) transaction (Article 168 of the Civil Code of the Russian Federation, Resolution 7 of the AAS dated 03/05/10 No. A27-15805/2009). In this case, the signature of the manager is quite sufficient: the signature of the chief accountant is not needed on the application. The law does not establish the obligation to sign an application for offset by the chief accountant of the organization (Resolution 12 AAS dated 08.12.11 No. A12-14642/2011, FAS MO dated 19.04.10 No. A40-48384/09-156-428).

The application for offset cannot subsequently be withdrawn. The law does not provide for the possibility of restoring obligations terminated by set-off if a party refuses the statement made about set-off (clause 9 of the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated December 29, 2001 No. 65 “Review of the practice of resolving disputes related to the termination of obligations by setting off counter-similar claims”).

The rationale for this position is given below in the materials of the “Lawyer System” .

« Set-off is a convenient way to terminate counter-obligations. Sometimes, in order to offset mutual claims, the parties draw up a bilateral document - an agreement or deed. However, set-off in the classical sense is still a one-sided transaction, the completion of which requires only a statement from one of the parties. In order for such an offset to take place, it is important to take into account a number of nuances when preparing this application.

Settlement within the framework of enforcement proceedings

Often, during enforcement proceedings, a situation arises when one of the parties (most often the debtor) turns to the bailiff with an application for offset.

In principle, the possibility of carrying out mutual offset depends only on the procedural unsettled mechanism of its implementation, the disclosure of which is the purpose of this article.

So, let's start with the theory. As follows from the provisions of Article 410 of the Civil Code of the Russian Federation, one of the grounds for termination of obligations in whole or in part is the offset of a counterclaim of the same type, the due date of which has come or the due date of which is not specified or determined by the moment of demand.

To carry out a set-off, an application from at least one of the parties is required. In addition, the obligations of the parties for which mutual settlement is carried out must be:
1. Counter.
2. Homogeneous.
3. Regulated by time.

Counterclaims mean that the debtor and the claimant within the framework of one claim (court decision, writ of execution, etc.) will be, respectively, the claimant and the debtor under another claim.

Homogeneity means the same legal nature of mutual claims. Thus, debt under an agreement, bill of exchange, etc. cannot be accepted for offset by a court decision. (for example, the decision of the Nineteenth Arbitration Court of Appeal dated March 23, 2011 in case No. A35-9129/2010).

Temporary regulation means the timing of mutual settlement in the period from the moment of occurrence to the moment of termination of counter, homogeneous claims of the parties. Also, to offset counterclaims, evidence of their indisputability is required, which, at the stage of enforcement proceedings, serves as writs of execution issued by the courts.

Now to practice. At the stage of enforcement proceedings, counterclaims can be offset by a bailiff (as the person making the appropriate procedural decision) or by a court (since our courts can do anything).
According to clause 1, part 1, art. 47 of the Federal Law of October 2, 2007 No. 229-FZ “On Enforcement Proceedings”, enforcement proceedings end with the actual fulfillment of the requirements contained in the executive document.
Offsetting a counterclaim of the same type, as well as proper performance (clause 1 of Article 408 of the Civil Code of the Russian Federation), constitutes the basis for termination of an obligation and, thus, entails the same consequences as actual performance (Chapter 26 of the Civil Code of the Russian Federation).
One of the possible procedures for offsetting a counterclaim within the framework of enforcement proceedings is set out in paragraph 2 of the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated December 29, 2001 No. 65 “Review of the practice of resolving disputes related to the termination of obligations by offsetting similar counterclaims.” Taking into account the fact that the letter was written a little more than a decade ago, I believe that its provisions can be taken as an integral part of this article.

Thus, according to the Supreme Arbitration Court of the Russian Federation, a person who has the right to declare offset within the framework of enforcement proceedings must inform the court, the other party to the obligation and the bailiff about this. After which “the bailiff in this case was obliged to issue a ruling on the completion of enforcement proceedings on the writs of execution of both one party and the other.”
It should be noted that in some cases, judicial practice on this issue requires both the presence of a statement of offset sent to the other party and evidence of its receipt by the party (for example, resolution of the Federal Antimonopoly Service of the Ural District dated April 27, 2010 No. F09-2791/10-S4) outside depending on the party’s approval or disagreement with the offset.
Thus, according to the courts, the bailiff not only has the right, but is also obliged to issue a resolution to terminate the initiated enforcement proceedings against the debtor on the basis of his application for offset of similar counterclaims, supported by evidence of the indisputability of the offset (writs of execution).
This conclusion is confirmed by materials of judicial practice (Resolutions of the Federal Antimonopoly Service of the West Siberian District dated January 12, 2006 N F04-8553/2005 (17265-A03-10), the Thirteenth Arbitration Court of Appeal dated April 17, 2007 in case N A56-2459/2006).

As for the specific implementation of mutual settlement in enforcement proceedings, in this case several possible schemes and situations for its implementation arise.
1. Offsetting in enforcement proceedings when sending an application for offset with evidence of indisputability.
This case is described in sufficient detail above and in court decisions. The applicant sends an application to the bailiff, attaches documents and receives an offset. That's it, full stop in production, real completion and improvement of statistics.
2. Settlement of enforcement proceedings pending in one structural unit of the territorial body of the FSSP of Russia (department of bailiffs).
In this case, I propose to consider a situation in which two enforcement proceedings have been initiated in one department and the bailiff does not have relevant statements from the parties to carry out the offset.
I believe that when establishing this fact, the bailiff has the right to carry out the appropriate actions independently upon the fact of establishment and replacing with his actions the will of at least one of the parties, with appropriate independent notification of the parties about the offset.
2. Settlement of enforcement proceedings pending in different structural divisions of the territorial bodies of the FSSP of Russia.
I believe that in this case a situation may arise where there may be no expression of the will of the parties who will be afraid to withdraw the sheet from execution.
In this case, homogeneity can be confirmed directly by a resolution to initiate enforcement proceedings with an attached certificate of the collected funds as of the date of offset. I admit that the reasoning at the moment is more theoretical; I have not found any relevant judicial practice.
3. Separately, I would like to give an example of conducting independent netting of loan payments.
A bank that has enforcement proceedings to collect from the debtor P. in one of its departments at one moment receives a resolution to initiate enforcement proceedings, the recoverer of which is, again, P.
The bank transfers the funds due to P. to his account opened with the bank under the relevant agreement and immediately writes them off against the amount of debt under the first enforcement proceedings. Next, the bank informs one bailiff about the reduction in the amount of P.’s debt, and the second about the actual execution of the collection requirements in favor of P.

Thus, based on the above, I believe that carrying out offsets within the framework of enforcement proceedings is possible regardless of the fact of initiating a second enforcement proceeding or whether the applicant has a writ of execution in his hands, upon presentation of the relevant documents confirming their homogeneity of the writ of execution or the decision to initiate.

Rules for filing an application for offset of similar counterclaims

The relationship between creditor and debtor often involves more than one agreement, and in large companies there can be up to hundreds of them. Unfulfilled obligations entail not only troubles for management, but also outstanding debts.

Offsetting counterclaims is one of the ways when obligations can be terminated. This is convenient to do when mutual claims are homogeneous or equilibrium, for example, monetary ones. After mutual repayment, collection can be applied only to the outstanding part.

Often, the parties enter into a bilateral agreement for mutual settlements. In this case, the legislative condition on homogeneity may not be taken into account. But offset is understood as a unilateral transaction, which requires a statement of offset of counter-similar claims, which must be completed by only one party. To carry out a transaction in the classic version, it is necessary to take into account the requirements of the legislator, otherwise the obligations cannot be considered terminated.

It is easiest to offset monetary obligations that are calculated in the same currency because they have the same value. Conducting a transaction with goods is much more difficult, because within one group, for example, food products, due to their individual characteristics, it is difficult to determine an equivalent value. Therefore, in practice only offset against financial obligations is used. To carry out a transaction, one of the parties must be a creditor, and the other must be a debtor on the basis of mutual contractual relations, and vice versa.

The legislator allows the transaction to be carried out without judicial intervention; one of the parties may invite the other to carry out a settlement by sending an application by mail. The applicant must receive notification by mail. In the future, if the case goes to court, the notice will refer to documentary evidence of the offset.

Often, when creditors have to file claims against debtors, the court makes decisions to offset counterclaims for:

• repayment of debt and payment of penalties;
• bill transactions;
• rental relations;
• agency agreements;
• contract agreement, when the contractor’s claims are counted against his repaid loan by the guarantor, i.e. the customer paid the contractor’s loan;
• other enforcement proceedings.

Mentions in legislation

The legislator specifies the conditions for mutual offset in the Civil Code of the Russian Federation, in Art. 410. It says that in order to carry out a transaction, it is enough for one party to declare this. But this is also possible after a court decision is made as part of enforcement proceedings. The legal consequence of offset is the termination of obligations, in which case the proceedings can be considered completed.

Based on the law, offset is made in full if the amount of the writs of execution issued for the claims of the original plaintiff and the counter-defendant is the same. Repayment of mutual obligations will be considered partial when the amount in one document is less than in the other.

In fact, set-off in legal proceedings can occur if counter writs of execution are issued. If only one statement of claim is filed, then the offset of counterclaims cannot be allowed. The court needs a claim from the defendant - a counterclaim or his separate statement.

The requirements should not only be uniform, but they should be possible to fulfill. Requirements can be met if the deadline for fulfillment has arrived at the time of offset. Perhaps the deadline for fulfilling the obligation is not established or is determined at the time of debt collection.

Enforcement proceedings can be opened only if there are enforcement documents, and the requirements for obligations must not only be able to be fulfilled, but must be fulfilled

How does debt collection occur during enforcement proceedings if the court has not yet made a decision regarding counterclaims against the debtor? In this case, on the basis of a writ of execution, the bailiff must foreclose on the debtor’s property for the purpose of selling it and repaying the debt.

If the defendant files a counterclaim, this cannot stop the enforcement process. But the defendant has the right to apply to postpone the collection of the debt until a decision is made on his claim. He submits the application to the court of general jurisdiction, where the original claim was filed. The judge will make a second decision that it is allowed to offset the claims of the parties.

If one of the parties does not declare mutual settlement and does not agree with the decision of the other participant, it cannot appeal his actions. An appeal is allowed if the transaction is invalid, i.e. the requirements for homogeneity or others have not been met. Such an action on the part of one or both participants in the process must be supported by a complaint to the court against the actions of the bailiff; it will not be possible to file an application to invalidate the offset.

The answer to the question: how to file a counterclaim includes information about the circumstances that should indicate a direct direct connection between the counterclaim and the original one.

You can read in detail about the conditions for accepting a counterclaim in the article at the link.

Main details of the application for set-off of counterclaims of the same type

To carry out an offset in the classic version, one of the parties must fill out an application and notify the other party about it. The issue can be resolved without filing a claim in court, but provided that the definitions of the law regarding obligations are fulfilled. You can also draw up and present the paper to the other party within the time limits established by the legislator.

Documents and conditions

Settlement can be carried out if 3 conditions are met simultaneously:

• Organizations have reciprocal obligations towards each other, they are confirmed in writing by contracts or agreements. The presentation of non-contractual obligations is also permitted. According to the documents, each party acts as a debtor and a creditor.
• The demands that enterprises have on each other are homogeneous, for example expressed in monetary terms.
• Moment of fulfillment of the obligation:
  • came;
  • was not specified in the agreement in advance;
  • determined on the date of demand.

When the deadline for performance is specified in the contract, it is impossible to request offset before this time. If all 3 conditions are met, a statement from one participant is sufficient to carry out the transaction; otherwise, their bilateral consent in writing is required.

In case of equivalence or equivalence of requirements, a full offset is carried out. In another case, the smaller claim is terminated, and the larger claim is fulfilled for the remaining amount.

Offsetting obligations is a business transaction, therefore it is documented.

There are 3 design options, but a special unified form of the Civil Code of the Russian Federation is not provided for any of them:

• The application is drawn up in any form by one of the parties who was the first to make such a decision. In fact, this means that counterclaims can be repaid unilaterally, but the second counterparty is first notified by mail. The application is sent by registered mail, and the applicant receives a notification in response. The document confirms that the other party received the paper and does not object to the transaction, which is important for litigation if it arises. The application must indicate a specific date from which the obligations must be considered fulfilled. In another case, when the applicant does not indicate the date, it is considered that the offset took place from the moment the application was received, i.e., the date indicated in the notification.
• To carry out offsets, you can draw up an act; the document is subject to the usual requirements for drawing up primary accounting documentation at an enterprise, so it can also be drawn up in any form. The act is drawn up and signed by both parties. As in the statement, the moment of repayment of mutual obligations will be the date of signing the act.
• In the third case, an agreement may be drawn up between the parties, which constitutes a contractual relationship. The paper describes in detail the circumstances of the offset, and it is also sealed with the signatures of responsible persons and seals. In the absence of the amounts for which the offset is carried out and other data, a dispute may subsequently arise between the counterparties. A document not drawn up according to the rules may be declared invalid by the tax authorities.

Deadlines

The deadline for fulfilling obligations is indicated in each contract or agreement. According to this date, which should have occurred according to contractual obligations, offset can be made. This means that the moment has already arrived and will not occur in the future.

For example, according to the contract, the goods must be delivered on the 1st of such and such a month, and within 2 days the customer must pay. In fact, the goods have been delivered, as evidenced by the acceptance certificate, but payment for it has not been made, which means that the deadline for fulfilling the monetary obligation has already arrived.

The supplier can declare the offset of its claims when the customer-recipient of the goods makes a homogeneous demand to pay, for example, for its services. Therefore, when filling out an application, you can safely indicate the date of fulfillment of a monetary obligation that has already occurred.

If, for example, the counterparty fulfills the obligation partially, then when making a counterclaim in the application, it is necessary to separately indicate the amounts that:

• be subject to offset;
• constitute the balance of the debt.

Some contractual relationships are concluded without a specific date for fulfillment of obligations; for example, loan agreements often stipulate the fact of transfer of finance, but the return date is not set. In such cases, on the basis of Art. 810 of the Civil Code, the borrower is obliged to return the funds within 30 days from the moment the lender issues him a return request. In these cases, offset is also allowed.

General requirements

To settle the procedure for fulfilling obligations between the parties, it is necessary that:

• Each had unfulfilled claims against the other, on the basis of which they are making counterclaims.
• The requirements must have the same expression, for example, services/services, finance/finance, goods/products, etc.
• Duration, according to contractual relations:
  • has arrived, which means that the counterparty was obliged to transfer, for example, funds and was already overdue for some time;
  • came and, based on the statements of the plaintiff and defendant, the district or arbitration court issued its decision;
  • was not specified and is therefore a demand date when a party has the right to request fulfillment of obligations at its discretion.
• The demand was made by one party:
  • in writing in the form of a statement;
  • the consent of the second party is expressed by sending a notification to the applicant.

In fact, if one person makes demands on another, while himself having unfulfilled ones, then the recipient of the application should analyze the amount of mutual claims in order to determine the specific amount of offset.

Exceptions

According to the definition of Art. 411 offset cannot be made if the defendant makes demands:

• for which the statute of limitations has expired;
• for compensation for harm to life/health;
• for the collection of alimony for a minor or for lifelong maintenance;
• in other cases.

Others, for example, the law includes situations when a monitoring procedure has already been introduced against the debtor, which precedes declaring him bankrupt. If the requirements of mutual offset are fulfilled, the queue in which the claims of other creditors must be satisfied will be disrupted, and this is unacceptable on the basis of bankruptcy law.

It is also impossible to carry out a transaction if the agreement from which the obligations of the parties arose contains a ban on offset. As part of enforcement proceedings, when a court decision is made, the bailiff will be forced to foreclose on the property of both parties, which will significantly complicate the process of repaying the debt.

Is it necessary for one of the parties to object to the impossibility of offset based on the prohibition in the contract? Most likely not, because in this case the court will indicate on the basis of Art. 10 that the opponent is abusing his rights.

Also, set-off is impossible if the parties do not declare it, despite the fact that a decision has been made on counter writs of execution, the bailiff, on his own initiative, cannot carry out the transaction. The decision to set off must be made by the parties and the court before the commencement of enforcement proceedings.

Another case involves a violation of the rights of one of the parties. One of the enterprises files a claim that, within the framework of enforcement proceedings, the conditions for the homogeneity of claims for which offset is required were violated.

Other nuances of registration in the arbitration court

When filing counterclaims, some nuances may become apparent, for example:

• The size of the requirements is not the same, which is most often the case in practice. The legislator allows for a partial offset, i.e. for the smallest amount. The largest portion is payable minus the least. The claim with the lowest amount ceases to exist because it is fully settled.
• In the statement, the opponent must not only indicate specific claims, but also their size and on the basis of what agreement they are being presented. The period for which the debt arose should be indicated.
• Claims can be made only for homogeneous requirements. These include obligations that are identical in the method of repayment and expressed in the same currency, but the very concept of “homogeneity” is absent in the law.
• Can one of the parties assert its claims without being sure that the other will acknowledge the debt? Indisputability is not a mandatory requirement for offset. In this case, when the counterparty does not take the necessary actions to terminate the obligation, the applicant retains the right to file a claim in court.
• Any responsible person of the enterprise can fill out a document on mutual requirements, but it can only be signed by the head or representative of the organization, acting on the basis of a power of attorney. If it is signed by an unauthorized person, the court has the right to declare the transaction invalid.
• Confirmation of receipt by the other party can be obtained in the form of a notice, if sent by mail, or in the form of a check mark in a special box that must be entered on the form. In the second case, the document will have to be delivered to the opponent’s office in person.
• The debtor is not allowed to choose from the claims presented by the creditor, who submits them in order of priority, which is regulated by Art. 319 Civil Code.
• You can present obligations from different agreements, where the subject of the agreement will be different things (goods, services), but they are homogeneous.
• Claims for offset cannot be subsequently waived.

A counterclaim to define the concept of communication with a child can be filed both by already divorced parents and by those who are officially married.

Read here how to correctly draw up and submit a counter-report to the police.

The amount of state duty for a counterclaim in civil proceedings is provided for by law, you can find out here.

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Case No. 2-437/2013

SOLUTION

In the name of the Russian Federation

Belokurikha City Court, Altai Territory

consisting of:

presiding judge Omelko L.V.,

under the secretary Vorozhtsova O.I.,

having considered in open court the application of FULL NAME1 to challenge the actions of the bailiff

INSTALLED:

Volokitin M.F. appealed to the court with a statement to declare illegal the inaction of the bailiffs of the OSP in carrying out the offset of counter homogeneous claims in the amount of rubles, the obligation of the bailiffs to eliminate the committed violations of the rights and legitimate interests of Volokitin M.F., to make a mutual settlement of the debt of Volokitin M.F. . in front of Koberidze Z.Yu. in the amount of rubles, in connection with the fulfillment of the obligation of the debtor Volokitin M.F. in front of Koberidze Z.Yu. in the amount of rubles through netting, enforcement proceedings against Volokitin M.F. initiated on the basis of a writ of execution from DD.MM.YYYY., issued by the Belokurikha City Court in case No., which entered into legal force DD.MM.YYYY., subject of execution: To collect rubles against the debtor: Volokitin M.F., in favor of the claimant Koberidze Z.Yu., complete, cancel the decision of the OSB on the collection of an enforcement fee in the amount of rubles from DD.MM.YYYY, the resolution on sending a copy of the enforcement document for execution at the place of receipt of income of the debtor M.F. Volokitin. from DD.MM.YYYY., referred to the fact that DD.MM.YYYY. bailiff-executor OSP Belokurikha Povaov E.L. enforcement proceedings were initiated to collect from the debtor Volokitin M.F. in favor of the claimant Koberidze Z.Yu. rubles, and DD.MM.YYYY. enforcement proceedings against the debtor Koberidze Z.Yu. in favor of the claimant Volokitin M.F. for the amount of rubles. Since the enforcement proceedings against the debtor Koberidze Z.Yu. is not completed, the court decision has not been fully executed, then DD.MM.YYYY. he turned to the bailiffs of the OSP with an application to offset the claims, but this application was ignored.

DD.MM.YYYY., he again turned to the bailiffs with an application for offset in the amount of rubles, but he was denied offset, with reference to the disagreement of the claimant FULL NAME8 to the offset.

At the same time, bailiff-executor OSP Povarov E.L. a decision was made to collect an enforcement fee in the amount of rubles in the absence of actions by Volokitin M.F. aimed at evasion within the established period for voluntary execution of the writ of execution, and the writ of execution is sent for execution at the place of receipt of income.

At the court hearing, the applicant Volokitin M.F., his representative Sukhov V.V. The application was upheld for the reasons stated therein. It is believed that the bailiff incorrectly interpreted the rule of law providing for the offset of claims. The Law on Enforcement Proceedings does not divide the concepts of offset and set-off into different understandings, but uses both words in the same sense and establishes the obligation for set-off or set-off of claims, this is an application by one of the parties to carry out set-off, homogeneity of claims, the existence of enforcement proceedings. The law does not indicate the consent or disagreement of the other party to carry out the offset, therefore the reference of the bailiff of the OSP Povarov E.L. to the disagreement of Koberidze Z.Yu. to carry out offsets is not based on the law.

At the court hearing, the interested party was Koberidze Z.Yu. with a statement by Volokitin M.F. did not agree, he explained to the court that the accounting section contains different meanings of the concepts of offset and offset. Settlement of claims is possible only with the consent of both parties, but he objects to offset.

Interested person bailiff executor OSP Belokurikha Federal Bailiff Service of Russia according to Povarova E.L. did not appear at the court hearing, submitted to the court an objection to the statement of M.F. Volokitin, in which he expressed his disagreement with the statement. He pointed out that Volokitin M.F.’s first appeal. was sent to the bailiff service before the initiation of the second enforcement proceedings in relation to his debt obligations in the amount of rubles, and in such circumstances, offset will not be possible. DD.MM.YYYY. Volokitin M.F. filed an application to cancel the decision to initiate enforcement proceedings, which is impossible due to the existence of an application from the claimant to initiate enforcement proceedings and in the presence of an unexecuted court decision.

DD.MM.YYYY. Volokitin M.F. filed an application for offset in the amount of rubles to Koberidze Z.Yu., but the consent of the other party is required for offset. Settlement is not based on the provisions of the law, but on the agreement of the parties. Settlement is a special type of transaction.

Signed by bailiff OSP Afanasyeva A.V. the court received an application to consider the case in the absence of the OSP, thus, in accordance with Art. the case was considered in the absence of an interested person who failed to appear at the court hearing and was duly notified of the time and place of the consideration of the case.

Having examined the case materials and heard the explanations of the parties, the court accepts the claims of Volokitin M.F. subject to partial satisfaction for the following reasons.

The situation when the subject “must” in one obligation and at the same time “has the right” in another, served as the basis for establishing the possibility of mutual repayment of the right and debt in an equivalent amount.

The right to set off unilaterally is established as a permission against the background of a general prohibition. Any permission of this nature is a type of legal benefit that provides the authorized party with the opportunity to satisfy its interest in terminating the obligation by paying off mutual debts unilaterally, without the participation of judicial authorities and without agreement with the counterparty.

Offset is possible outside the legal process at the stage of enforcement proceedings. Similar situations arise when two entities have homogeneous counterclaims against each other, the basis of which are writs of execution issued to them by court decisions. Modern legislation on enforcement proceedings does not yet provide for a mechanism for offsetting in such a situation, despite the fact that all the necessary conditions for its implementation, established by Art. .

Moreover, the legislation does not contain direct prohibitions on the exercise of the right to offset these claims.

The article provides for the following cases when offset of claims is not allowed:

If, at the request of the other party, the claim is subject to a statute of limitations and this period has expired;

On compensation for harm caused to life or health;

On the collection of alimony;

About lifelong maintenance;

In other cases provided by law or contract.

As follows from this article, the list of grounds on which offset is not allowed does not prohibit offset at the stage of execution of judicial acts. Although this list is not exhaustive, there are no other cases provided for by law that would prohibit offsets at the stage of execution of judicial acts. Consequently, the law allows the termination of obligations by offset at the stage of enforcement proceedings.

However, the peculiarity of such an offset is that the claims of one of the parties are secured by judicial protection.

The Presidium of the Supreme Arbitration Court of the Russian Federation indicated that an obligation cannot be terminated by offsetting a counterclaim of a similar nature, the term of which has come, after filing a claim against a person who has the right to declare an offset (clause 1 of the information letter dated December 29, 2001 N 65 “Review of the practice of resolving disputes related to with termination of obligations by offsetting similar counterclaims").

From the materials of enforcement proceedings No. and No. it follows that the basis for initiating enforcement proceedings, both for one enforcement proceeding and for another, were statements of claimants with the attachment of original writs of execution for the recovery of funds in the same civil case, one of which is essentially claim, and the other for the collection of procedural costs associated with the consideration of the case on the merits.

As established at the court hearing, the court decision on none of the writs of execution has been executed, and the enforcement proceedings have not been completed. The deadline for presenting writs of execution for execution has not expired.

Thus, the court comes to the conclusion that enforcement proceedings No. and No. are essentially homogeneous, the parties to the enforcement proceedings are the same and both of them have status in the enforcement proceedings of the debtor-claimant.

Confirming the indisputability of the claims as per the writ of execution against the claimant-debtor Koberidze Z.Yu. and Volokitina M.F. are writs of execution issued by the Belokurikha City Court on the basis of court decisions that have entered into legal force.

Thus, the bailiff had no grounds for offsetting (offsetting) the claims of Volokitin M.F. for the amount of rubles.

The grounds provided for in Art. not installed.

Position of the interested parties of the bailiff E.L. Povarov and Koberidze Z.Yu. on the mutual agreement of the parties to set off claims is based on an incorrect interpretation of the law.

The court believes that the bailiff mistakenly interprets offset as a form of transaction, since offset in the order of execution is not a form of transaction. The purpose of such offset is the proper and timely execution of the court decision, by satisfying the requirements of the party in enforcement proceedings.

The article does not make the settlement dependent on the consent or non-consent of the other party to carry it out.

In addition, as noted above, in response to the application from DD.MM.YYYY., regarding the offset of claims to Volokitin M.F. The bailiff did not give an answer.

Thus, the demands of the applicant Volokitin to recognize as unlawful the inaction of the bailiff OSP Belokurikha of the Federal Bailiff Service of Russia according to Povarova E.L. in the refusal to offset counter homogeneous claims for enforcement proceedings No. and No. for the amount of rubles at the request of Volokitin M.F. and the imposition of obligations to carry out mutual offset is justified and subject to satisfaction.

At the same time, the court does not find any violations in the actions of the bailiff OSP Belokurikha of the Federal Bailiff Service of Russia at the request of Volokitin M.F. from DD.MM.YYYY. for mutual offset, since this application was submitted by Volokitin M.F. before the initiation of enforcement proceedings No. No., and therefore at that time there were no mutual demands for the collection of funds against the debtor Volokitin M.F. and to DD.MM.YYYY. Volokitin M.F. had only the status of a claimant, and not a claimant-debtor.

At the same time, in accordance with paragraph 1 of Art. 47 of the Federal Law “On Enforcement Proceedings”, enforcement proceedings are completed by the bailiff, and not by the court, therefore the requirement to complete the enforcement proceedings cannot be satisfied.

From the case materials it appears that DD.MM.YYYY. bailiff executor OSP Belokurikha UFSSP of Russia for Povarova E.L. a decision was made to collect the enforcement fee from Volokitin M.F. in the amount of rubles, for failure to voluntarily execute the executive document on enforcement proceedings No. No., within the time limit established for voluntary execution.

At the same time, from the case materials it is clear that the resolution to initiate enforcement proceedings against the debtor Volokitin M.F. for the amount of rubles issued by the bailiff DD.MM.YYYY. and handed over to the debtor DD.MM.YYYY., which he refused to receive.

According to the text of the said resolution, the debtor Volokitin M.F. The deadline for voluntary fulfillment of the requirements is established - 5 days from the moment the debtor receives a copy of the resolution.

Consequently, the five-day period for voluntary fulfillment of the requirement begins to expire from DD.MM.YYYY., i.e. from the day when the debtor in enforcement proceedings was familiarized with the decision to initiate enforcement proceedings, and the fact that he refused has no legal significance receiving a copy of the decision. Since the bailiff fulfilled the obligation, he took measures to serve the order dated DD.MM.YYYY. Thus, Volokitin M.F. it was proposed to voluntarily execute the court decision regarding payment to Koberidze Z.Yu. rubles to DD.MM.YYYY.

Meanwhile, before the expiration of the period for voluntary fulfillment of the requirement, DD.MM.YYYY. debtor Volokitin M.F. appeals to the bailiff with an application for offset, offset of claims in enforcement proceedings. Thus, he takes measures to fulfill the requirements.

According to Part 1 of Article 112 of the Federal Law of 02.10.2007 No. 229-FZ “On Enforcement Proceedings” (hereinafter referred to as the Law on Enforcement Proceedings), the enforcement fee is a monetary penalty imposed on the debtor in the event of his failure to fulfill the enforcement document within the period established for voluntary execution executive document.

Since within the established five-day period the debtor Volokitin M.F. filed an application for offset of claims, and again. about the offset of claims, then there are no grounds for collecting the enforcement fee, accordingly, the resolution of the bailiff of the executor dated DD.MM.YYYY. on the collection of an enforcement fee in the amount of rubles, in relation to the debtor Volokitin M.F. will share the cancellation.

However, the resolution to send a copy of the writ of execution for execution at the place of receipt of income of the debtor Volokitin M.F. is not subject to cancellation, since it was issued within the framework of the initiated enforcement proceedings by an appropriate official, within the powers of the bailiff.

Guided by Art. Art. - Civil Procedure Code of the Russian Federation, court

DECIDED:

The application of FULL NAME1 is partially satisfied.

To recognize as illegal the inaction of the bailiff OSP Belokurikha UFSSP of Russia, FULL NAME5, in refusing to offset counter homogeneous claims for enforcement proceedings No. and No. for the amount of rubles at the request of FULL NAME1 and to impose the obligation on the bailiff OSP Belokurikha UFSSP of Russia, FULL NAME5, to carry out the offset for enforcement proceedings No. and No. for the amount of rubles.

To cancel the resolution of the bailiff OSP Belokurikha of the Federal Bailiff Service of Russia under FULL NAME5 dated DD.MM.YYYY. on the collection of an enforcement fee from the debtor FULL NAME1 in the amount of rubles for enforcement proceedings No. No.

The rest of the demands are left unsatisfied.

The decision can be appealed on appeal to the first court, through the Belokurikha City Court, within a month from the date of production in its final form.

Reasoned decision DD.MM.YYYY.

Judge Belokurikhinsky

City Court L.V. Omelko

Dear experts, help, I don’t know what to do, I saw myself in the bank of enforcement proceedings as a debtor, but the collector is also my debtor (he owes me more than I owe him), and the enforcement proceedings are with the same bailiff. I have not yet received a copy of the decision to initiate legal action by mail. pr-va, she called the bailiff, she says get a decree, come to me and is determined to calculate my debt from my pension. This is bad for me. Yesterday I wrote and took to the office an application for offset of similar counterclaims. Maybe I shouldn’t rush to go and receive a copy of the resolution to initiate legal proceedings in the mail. pr-va, in the same place in 5 days they can seize my account and pension and those for which I pay loans. which again is bad for me. How long does it take for the bailiff, after receiving my application, to issue a ruling on the offset of counterclaims? What should I even do in such a situation? I understand. that the bailiffs want to make an enforcement fee, etc., but I need to know what is beneficial for me and what should I do now, I can barely survive on my old-age pension and group 3 disability pension.

Required: Free advice

Offer paid legal assistance

This case is described in sufficient detail above and in court decisions. The applicant sends an application to the bailiff, attaches documents and receives an offset. That's it, point in production, real completion and improvement of statistics.2. Settlement of enforcement proceedings pending in one structural unit of the territorial body of the FSSP of Russia (bailiff department). In this case, I propose to consider a situation in which two enforcement proceedings have been initiated in one department and the bailiff does not have appropriate statements from the parties to carry out offset. I believe that when establishing this fact, the bailiff has the right to carry out the appropriate actions independently upon the fact of establishment and replacing with his actions the will of at least one of the parties, with appropriate independent notification of the parties about the offset.2.

Application for offset of similar counterclaims

• Consider the balance of the debt of the debtor - Kolomeytsev Konstantin Igorevich - according to the writ of execution within the framework of enforcement proceedings No. 13452/23/2015 dated November 14, 2015, equal to 6,000 rubles.
Remezov A.Yu. 12.12.2015 Grounds for filing an application for set-off of homogeneous claims The absolute basis for filing such an application is the presence of writs of execution, according to which the claimant and the debtor have counterclaims.
On the basis of such sheets, enforcement proceedings should be initiated. The deadline for fulfilling such obligations must already have expired.
If a civil dispute is still being considered, then the bailiff can submit an application to postpone enforcement actions, wait for the court decision to be rendered and enter into force, and only then make an offset.

Possibility of counting two enforcement proceedings

Attention

Good afternoon, there is such a situation: the plaintiff won the case with the recovery of 50 thousand rubles, we (the defendant) will also recover 30 thousand rubles from the plaintiff. (court expenses). Naturally, we will give our amount right away (we are legal entities), and she will give hers in parts throughout her life.

Important

I would like to make a report. It is possible, as I understand it, according to the statement within one OSB. And since the writ of execution is filed at the location of the debtor, the plaintiff and I will have enforcement proceedings in different OSBs.

Art. 33 of the Federal Law on enforcement proceedings speaks of the possibility of translating Spanish. proceedings (already initiated) in another OSB, but this is through a letter to the Chief Bailiff of the subject; and he may not transfer the case. Please advise what can be done in this situation to resolve the issue of offsetting counterclaims.

An error occurred.

Application for offset of counter homogeneous claims In the proceedings of the OSB in the Mikhailovsky district of the Amur region, there is enforcement proceedings No. 13452/23/2015 dated November 14, 2015, initiated in accordance with writ of execution No. 2-523 dated October 30, 2015, issued by a magistrate Mikhailovsky judicial district, subject of execution: collection of funds in the amount of 41,000 rubles. under a loan agreement with the debtor, Konstantin Igorevich Kolomeytsev, under which I am the claimant. The requirements of the writ of execution were fulfilled in the amount of 15,000 rubles, which were received in accordance with the foreclosure of the debtor’s property (cash deposited in the bank).
In addition, in the OSB for the Mikhailovsky district of the Amur region there is enforcement proceedings No. 342434/265/2015 dated December 10, 2015: in accordance with the statement of Kolomeytsev K.I.

Forum

Is it necessary for one of the parties to object to the impossibility of offset based on the prohibition in the contract? Most likely not, because in this case the court will indicate on the basis of Art. 10 that the opponent is abusing his rights. Also, set-off is impossible if the parties do not declare it, despite the fact that a decision has been made on counter writs of execution, the bailiff, on his own initiative, cannot carry out the transaction.

The decision to set off must be made by the parties and the court before the commencement of enforcement proceedings. Another case involves a violation of the rights of one of the parties.
One of the enterprises files a claim that, within the framework of enforcement proceedings, the conditions for the homogeneity of claims for which offset is required were violated.

Bailiffs blog

Regulated by time. Counter-claims mean that the debtor and the claimant within the framework of one claim (court decision, writ of execution, etc.) will be, respectively, the claimant and the debtor under another claim. Homogeneity means the same legal nature of mutual claims. Thus, debt under an agreement, bill of exchange, etc. cannot be accepted for offset by a court decision.
(for example, the decision of the Nineteenth Arbitration Court of Appeal dated March 23, 2011 in case No. A35-9129/2010). Temporary regulation means the timing of offset in the period from the moment of occurrence until the end of the counter, homogeneous claims of the parties. Also, to set off counter claims, evidence of their indisputability, which, at the stage of enforcement proceedings, serve as writs of execution issued by the courts. Now to practice.

Settlement of counterclaims. enforcement proceedings

Chekhov, Moscow region, Russia, 142301 DECISION on the offset of homogeneous counterclaims under executive documents 04/20/2015 Bailiff Chekhov ROSP UFSSP of Russia for the Moscow region UFSSP of Russia for the Moscow region, unit address: st.

Ilyicha, 34, Chekhov, Moscow region, Russia, 142301 ... Evgenia Aleksandrovna, having examined the materials of enforcement proceedings dated 03/02/2015 No. 8721/15/50044-IP, initiated on the basis of the writ of execution No. ВС013298297 dated 15.01. 2015, issued by the authority: Chekhov City Court in case No. 2-788/14, which entered into force on August 22, 2014, subject of execution: PAYMENT FOR REPRESENTATIVE SERVICES in the amount of: 3,000 rubles, in relation to the debtor: NST “RED BUILDER”, address debtor: 142301, Russia, Moscow region, Chekhov district, ..., in favor of the claimant: ... Marina Valentinovna, address of the claimant: st.

Case No. not determined

At the stage of enforcement proceedings, counterclaims can be offset by a bailiff (as the person making the appropriate procedural decision) or by a court (since our courts can do anything). According to clause 1, part 1, art. 47 of the Federal Law of 02.10.2007 No. 229-FZ “On Enforcement Proceedings”, enforcement proceedings end with the actual fulfillment of the requirements contained in the executive document. Set-off of a counter homogeneous claim, as well as proper execution (clause 1 of Article 408 of the Civil Code of the Russian Federation), represents the basis for termination of an obligation and, thus, entails the same consequences as actual performance (Chapter 26 of the Civil Code of the Russian Federation). One of the possible procedures for offsetting a counterclaim within the framework of enforcement proceedings is set out in paragraph.

Credit den. funds under writs of execution

Often, during the course of enforcement proceedings, a situation arises when one of the parties (most often the debtor) turns to the bailiff with an application for offset. In principle, the possibility of offset depends only on the procedural unsettled mechanism of its implementation, the disclosure of which is the purpose of this articles. So, let's start with the theory. As follows from the provisions of Article 410 of the Civil Code of the Russian Federation, one of the grounds for termination of obligations in whole or in part is the offset of a counterclaim of the same type, the due date of which has come or the due date of which is not specified or determined by the moment of demand. To carry out an offset, an application from at least one of the parties is required. In addition, the obligations of the parties for which mutual settlement is carried out must be: 1. Counter.2. Homogeneous.3.

Rules for filing an application for offset of similar counterclaims

In the process of executing court decisions, a situation may well arise where the same persons have similar obligations to each other, then the enforcement proceedings can be completed by filing an application for offset of similar claims. If the volume of demands between the parties to the proceedings is the same, the enforcement proceedings are completed in full; if not, they are completed partially.

The possibility of offsetting homogeneous claims is enshrined in Art. 410 of the Civil Code of the Russian Federation, judicial practice is based on the possibility of carrying out such a procedure at any stage of enforcement proceedings. Download a sample: Application for offset of counter homogeneous claims (29.5 KiB, 299 hits) Example of an application for offset of counter homogeneous claims to the bailiff of the OSP for the Mikhailovsky district of the Amur region from Alexander Yuryevich Remezov, address: 676680, Poyarkovo, st. Dimitrova, d.