Securing a claim. Review of judicial practice on the application of interim measures in civil proceedings
Mikhail Grigoriev, expert of the magazine "Company Lawyer"It is difficult to classify efficiency as a characteristic feature of the judicial procedure for resolving conflicts. Yes, and executing a decision in favor of an organization is sometimes more difficult than defending one’s case in the courtroom. Meanwhile, there is an excellent procedural tool to, if not force the counterparty to back down, then at least force them to seriously think about a compromise and ways to resolve the dispute. These are measures to secure a claim.
Thanks to interim measures, the opponent realizes the seriousness of your intentions and the precariousness of his position within a matter of days after filing a claim (clauses 2 and 6 of Article 93 of the Arbitration Procedure Code of the Russian Federation). But you can achieve the desired effect only by correctly justifying your requirements. In this article, we'll cover what you need to know to use this tool effectively.
Filing a request for security is necessary, but not sufficient
You can ask the court to take measures to secure a claim at any stage of the process - from filing a claim to making a final decision on the case. However, in most cases it is reasonable to do this at the same time as filing a claim. After all, this institution, in its essence, is an emergency means of protecting the interests of the plaintiff. Therefore, a request for security can be stated directly in the statement of claim. The main thing is that it contains all the information listed in Part 2 of Article 92 of the Arbitration Procedure Code of the Russian Federation.
The court may apply interim measures in the following cases (clause 2 of article 90 of the Arbitration Procedure Code of the Russian Federation):
- If failure to take these measures may complicate or make impossible the execution of a judicial act
- To prevent the applicant from causing significant harm
It is useless to provide the court with other reasons for applying interim measures (resolution of the Federal Arbitration Court of the Moscow District dated December 21, 2005 No. KG-A40/12285-05).
“Thanks to interim measures, the opponent realizes the seriousness of your intentions and the precariousness of his position within a matter of days after filing a claim.”
How to justify difficulties with the execution of a judicial act
One of the grounds for which there is a threat of non-execution of a court decision is listed directly in the text of the Arbitration Procedure Code of the Russian Federation - if execution occurs outside the territory of the Russian Federation (clause 2 of Article 90 of the Arbitration Procedure Code of the Russian Federation). However, this reason can hardly be called the most common. Unfortunately, judges are not particularly impressed by the known difficulties in enforcing decisions within this territory. Therefore, it is necessary to find a more convincing reason.
As a rule, this reason is that the disputed property may not be available at the time of execution of the court decision. A hint on how to prove difficulties with the execution of a judicial act can be found in paragraph 9 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated October 12, 2006 No. 55 “On the application of interim measures by arbitration courts.” The judges indicated that the difficult nature of executing a judicial act or the impossibility of executing it may be associated with the debtor’s lack of property or actions taken to reduce the amount of property.
The following example is indicative. The company filed a claim for damages caused by the defendant's failure to fulfill obligations under the storage agreement. As security for the claims, the plaintiff asked the court to prohibit the defendant from alienating the real estate belonging to him. The organization justified its petition by the fact that the defendant had not fulfilled its contractual obligations for a long time, citing a lack of money and large accounts payable. And at the same time he is taking action to sell the real estate he owns. The court considered these arguments sufficiently convincing and granted the petition (resolution of the Federal Arbitration Court of the Far Eastern District dated August 30, 2005 No. F03-A51/05-1/2441)
A guideline for properly substantiating the assertion about the difficulty of enforcing a court decision can be found in the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated 07/09/03 No. 11 “On the practice of arbitration courts considering applications for interim measures related to the ban on holding general meetings of shareholders.” In paragraph 4 of this resolution, the Plenum indicated that a difficulty with the execution of a court decision should be considered a situation when the plaintiff, in order to exercise his rights, will have to apply to the court with a new claim.
The Plenum of the Supreme Arbitration Court of the Russian Federation indicated that it may indicate difficulty in executing the relevant act: if there are grounds to believe that after recognition or confirmation of the rights of the plaintiff by a court decision, he will have to go to court with a new claim in order to ensure that the decision of the general meeting of shareholders on a particular issue was declared invalid.
However, an analysis of judicial practice shows that the courts are very reluctant to accept the applicants’ doubts about the ability to enforce the court decision. Arbitration practice is replete with examples of refusals to take interim measures on this basis for lack of evidence (for example, the resolution of the Federal Arbitration Court of the West Siberian District dated October 31, 2006 No. Ф04-6524/2006(27165-А46-16), the resolution of the Federal Arbitration Court of the Moscow District dated 29.11.06 No. KG-A41/11293-06, etc.).
Therefore, a more reliable path is to persuade the court to take measures to prevent significant harm to the applicant.
“An analysis of judicial practice shows that judges are very reluctant to agree with applicants’ doubts about the possibility of executing a court decision.”
How to convince the court to take measures to prevent significant damage
The concept of “significant damage” is an evaluative one. Therefore, it is not possible to give a single recipe for all occasions. The significance of the damage must be justified individually in each specific case. Well, for example, compare the concepts of “significant damage” and “major transaction” (more than 25 percent of the book value of the company’s assets). But this is just an example. There is a chance to convince judges of the significance of the damage even with relatively small amounts. So the judges agreed with the need to prevent damage to the plaintiff in the amount of 400 rubles (resolution of the Federal Arbitration Court of the West Siberian District dated October 17, 2006 No. F04-6862/2006(27433-A27-29)).
A more clear criterion, which the judges will be guided by, is given in the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation No. 55. The Supreme Arbitration Body indicated that in order to prevent significant damage to the applicant, interim measures can be aimed at maintaining the existing state of relations between the parties. It is precisely on justifying the need to maintain the status quo that the main emphasis should be placed.
Thus, the organization filed a claim to remove obstacles to the use of a land plot on which the defendant, in the plaintiff’s opinion, illegally erected a metal structure, which the plaintiff demanded to demolish. As security for the claim, the plaintiff applied for an injunction to prevent the continuation of construction work. The court agreed that the security was aimed at preserving the existing state of affairs and granted the petition (resolution of the Federal Arbitration Court of the Far Eastern District dated November 15, 2005 No. F03-A51/05-1/3416).
In another case, the bank filed a claim to invalidate the auction at which its debtor sold real estate. As security, the plaintiff asked:
- prohibit the acquirer of property from carrying out actions related to the disposal of property;
- prohibit state registration authorities of rights to real estate and transactions from registering any transactions and encumbrances in relation to the disputed building made by the acquirer;
- prohibit state registration authorities of rights to real estate and transactions with it from registering any transactions, encumbrances and rights of subsequent acquirers of the disputed building.
The bank justified its petition by the fact that failure to take the interim measures it requested would entail a lengthy process of reclaiming the disputed real estate from subsequent purchasers. This will lead to a delay in bankruptcy proceedings and cause significant losses to the plaintiff and other bankruptcy creditors of the defendant. The Federal Arbitration Court of the North-Western District found these arguments convincing, indicated that they were aimed at maintaining the existing state of relations and granted the petition (resolution dated 02/09/07 No. A56-21362/2006).
The provision must be adequate
However, even the most appropriate request for interim measures may fail if it is not adequate to the stated requirement. This is what judges will pay attention to when checking its validity (clause 10 of the resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation No. 55):
- reasonableness and validity of the applicant’s request for interim measures;
- the likelihood of causing significant damage to the applicant if interim measures are not taken;
- ensuring a balance of interests of stakeholders;
- preventing violations of public interests and the interests of third parties when taking interim measures.
- to what extent the interim measure is related to the subject of the stated claim, is proportionate to it and how it will ensure the actual implementation of the goals of the interim measures (Part 2 of Article 90 of the Arbitration Procedure Code of the Russian Federation).
Thus, the judges refused to take interim measures in the form of a ban on registering the transfer of ownership of real estate sold at auction, at the request of a person who was not allowed to attend the auction. According to the court, this measure is not aimed at ensuring the requirement for invalidation, refusal to allow the plaintiff to participate in the auction (resolution of the Federal Arbitration Court of the Central District dated April 20, 2006 No. A14-1448-2006/32/30)
If the interim measure is directly related to the stated claim and corresponds to it, the court may accept security even to protect the public interest of persons not participating in the case (Resolution of the Federal Arbitration Court of the Ural District dated January 31, 2007 No. F09-236/07-S5).
Article 91 of the Arbitration Procedure Code of the Russian Federation names the most common measures:
- seizure of funds or other property belonging to the defendant and held by him or other persons;
- prohibition on the defendant and other persons to perform certain actions related to the subject of the dispute;
- imposing on the defendant the obligation to take certain actions in order to prevent damage and deterioration of the disputed property;
- transfer of the disputed property for storage to the plaintiff or another person. If necessary, you can ask for several interim measures to be applied simultaneously. Note that this list is open, and the court may take other measures.
When the plaintiff has reason to suspect the defendant is trying to evade execution of a court decision, he has the right to take preventive measures. To secure the filed claim, interested parties may petition for the seizure of the property of the debtor, or other actions that can guarantee the execution of the act adopted by the court.
Types of claim security
The need for interim measures arises both in civil and arbitration proceedings, when the plaintiff tries to forcibly collect a debt from an individual/legal entity.
An application for interim measures can be submitted to the arbitration court by creditors of a bankrupt organization. It is in their interests to preserve the debtor’s property as much as possible. For this purpose, they ask to seize the funds in the accounts of the bankrupt company.
Seizure of property is a common, but not the only restrictive measure. Securing a claim in civil proceedings can be achieved in other ways:
- suspension of the sale of other property of the defendant;
- transfer for safekeeping of the disputed item;
- a ban on him performing certain actions: selling, donating, changing movable and immovable objects (this requirement is very important when dividing property between spouses) or continuing unauthorized construction of a house;
- prohibition for other persons to carry out actions related to the subject of the dispute (register in the apartment in respect of which the trial is ongoing).
The court may take measures to secure the claim at the request of the defendant. In particular, he has the right to ask the judge to suspend the collection while he challenges the writ of execution. An example of such a situation could be excessive, in the opinion of the child’s father, alimony obligations, the amount of which he plans to appeal.
However, in the list of possible security measures, seizure of property is the most effective. Unscrupulous defendants often find loopholes to circumvent prohibitions. And even if they are caught in this, they face a small fine - only 1,000 rubles (Article 140 - Code of Civil Procedure). The claimant also has the right to demand compensation for losses caused by such actions. However, by this time it may turn out that the defendant no longer has any property left to cover them.
Grounds for an “interim” application
A request for interim measures may be filed as a separate document or included in the main claim sent to a court of general jurisdiction (or an arbitration court). In any case, the applicant must have compelling reasons for such a request. Examples of these could be:
- the defendant’s sole access to family savings (a bank account or card is issued in his name);
- the plaintiff became aware of the impending transaction in relation to the disputed object;
- in the near future the defendant is going to take out a loan secured by the real estate that is the subject of the dispute, etc.
In a petition for the need for interim measures, the citizen declares a real threat of the defendant concealing property. However, he is not obliged to document it. The document must show:
- on the proportionality of the demand (if the defendant owes the plaintiff 20,000 rubles, the court will not grant the request to seize his house);
- on the expediency of interim actions;
- on the urgency of securing the claim.
Contents and structure of a written request
The court has the right to take interim measures in civil and arbitration proceedings at any time - until the decision is fully implemented. And throughout this entire period, the participant in the process has the opportunity to file a corresponding petition.
When starting to write it, you can use the sample application as a guide in order to properly structure the document. It consists of several parts:
- The document header, located in the upper right corner. Here are the following:
- to whom the petition is addressed (details of the civil / arbitration court);
- from whom it came (full name, place of residence, contacts);
- who is the defendant or other party to the case.
- Title of the document being submitted.
- Reasons for filing such an application. Here, in particular, it is indicated which real (already committed) or possible actions of the defendant may lead to failure to fulfill the requirements stated in the claim. If the defendant asks to suspend the collection, he indicates why he is asking for it.
- Please take interim measures - with or without indicating their type and scope.
- Information about availability known to the applicant (if he has it).
- Signature and date of writing the petition.
If the applicant has documentary evidence of his words, he attaches them to this paper, and lists at the end of the text what exactly is attached to it.
A request to secure a claim is considered urgently - immediately after its filing. No party to the case is called. Having made a decision on the submitted application, the judge makes a decision either to take the required measures or to refuse this requirement. If the defendant's request is granted, he is issued a writ of execution, and a copy of the document is sent to the defendant.
Timely taken interim measures make it possible to ensure proper execution of the adopted judicial act. In certain situations, they are designed to protect the defendant from unlawful penalties. Securing a claim helps ensure justice prevails and makes the court's decision inevitable.
What is security for a claim in a civil case? What are they for? measures to secure a claim? Situations often arise when the debtor, having learned that the other party is going to go to court, tries to hide property, transfer money to other people’s accounts, transfer an apartment and car to relatives or friends, in order to hide the property from possible collection.
What to do in this case? The civil procedural legislation provides for special rules that apply after the filing of a statement of claim and filing it with the court, which make it possible to protect the interests of the plaintiff. Securing a claim is a means that may enable future enforcement of a judgment.
Securing a claim is urgent and temporary. That is, measures to secure the claim are taken immediately after the corresponding application is received by the judge, while they continue to operate only for a certain period of time, usually until the court decision is executed.
To secure a claim, the plaintiff must file a claim with the court. Such an application is submitted in any form; it can be filed simultaneously with the statement of claim, or at any other time, before the execution of the court decision.
Measures to secure a claim
The most common measures to secure a claim is the seizure of property or sums of money. This method should be used in relation to money in bank accounts, in relation to property held by the defendant, in relation to securities. If the court satisfies the request for seizure, a writ of execution will be issued, according to which the bailiff will describe the property, prohibit its disposal, and, if necessary, seize it.
Another effective way securing a claim is a prohibition to perform certain actions, both to the defendant and to other persons. This method is recommended for use in relation to real estate, vehicles, securities, and items in a pawnshop.
If the plaintiff has filed a claim for the release of property from seizure, it would be useful to file, if the writ of execution is disputed, a petition to suspend collection under the writ of execution.
The specified measures to secure a claim are expressly provided for in the law, specified in Article 140 of the Civil Procedure Code of the Russian Federation, however, this is not an exhaustive list; if it is necessary to apply any specific measures to secure a claim, the plaintiff has the right to file an application with the court and explain his arguments in detail.
Securing a civil claim
An important point that you should pay attention to when securing a civil claim is proving the fact of possible non-execution of a court decision. Special means of proof are not provided for by law; such evidence may include any data indicating the defendant’s dishonesty, for example, correspondence between the parties, actions by the defendant to clearly delay the process, the defendant’s actions to transfer property and funds to other persons, and submitting advertisements for the sale of property.
Measures to secure a civil claim must be proportionate to the claim stated by the plaintiff, that is, for example, the value of the property that is being asked to be seized must correspond.
Please note that it is necessary to use measures to secure a claim in good faith and carefully. The law provides for the protection of the rights of the defendant against the unfair application of interim measures. The defendant, after the entry into force of a court decision that rejected the claim, has the right to file a claim for compensation for losses caused to him by measures to secure the claim, taken at the request of the plaintiff.
22 comments to “ Measures to secure a claim”
from 11/03/2020
To make the execution of a court decision possible in the future, even at the stage of the first appeal to the court, you can file a petition to secure the claim. As the name of the document indicates, only the plaintiff submits it before the ruling. And even at the same time as going to court. The procedure for ensuring the execution of a decision also applies at the stage.
Example of a request to secure a claim
To the Dimitrovgrad City Court of the Ulyanovsk Region
address: 433510, Dimitrovgrad,
st. Astrakhanskaya, 51, apt. 5
Defendant: Sharov Igor Aleksandrovich,
Born 09/04/1982, place of birth: Ulyanovsk,
address: 33510, Dimitrovgrad, st. Lenina, 34,
SNILS 8687-984-59
within the framework of case No. 14-63/2022
In the Dimitrovgrad City Court of the Ulyanovsk Region, on October 18, 2022, the plaintiff, in accordance with the rules of the contract, files a statement of claim against Igor Aleksandrovich Sharov to collect the debt under the loan agreement, as well as in accordance with the terms of the agreement. is 1,650,000 rubles.
The plaintiff has reason to believe that he will take a number of measures to conceal his property in order to make it impossible to foreclose on it within the framework. The defendant’s dishonest behavior is evidenced by the fact that he, in the presence of two witnesses, refused to receive information about the improper fulfillment of obligations under the loan agreement.
At present, I know for certain that the defendant is taking measures to sell the property he owns. Namely: a Mazda CX-7 car (the sale announcement is posted on Internet sites (printouts are attached)). The plaintiff also has sufficient grounds to believe that the defendant may take actions to dispose of the real estate belonging to him. Since the defendant does not have a permanent place of work, failure to take measures to secure the claim may become an obstacle to the execution of the court decision.
Taking into account the requirements of Article 13 of the Code of Civil Procedure of the Russian Federation on the mandatory nature of judicial acts on the territory of the Russian Federation, it is necessary to apply the following measures to secure the claim: seize the property of the defendant, prohibit the defendant from taking actions to alienate real estate, including registering the transfer of ownership.
Based on the above, guided by art. 139, 140 Code of Civil Procedure of the Russian Federation,
- Take measures to secure the claim of Voronov D.V. to Sharov I.A. on the collection of debt under a loan agreement in the form of imposing and establishing a ban on transactions aimed at alienating real estate owned by the defendant.
Application:
- Information from Internet sites about the sale of the defendant's car.
10.18.2022 Voronov D.V.
Grounds for filing a motion to secure a claim
Satisfying a motion to secure a claim means limiting the defendant and even other persons (for example, a spouse, etc.) in the exercise of their rights. Therefore, the petition must be very justified. This is the presence of two conditions simultaneously:
- goal: to ensure the execution of a future court decision;
- the defendant’s actions are aimed at concealing (selling, donating, etc.) his property;
The applicant must petition the court to select a specific measure to secure the claim. They are:
- seizure of property,
- prohibition of performing certain actions (for example, filing an application for liquidation when the Defendant is an organization, including in claims),
- prohibiting other (not the defendant) persons from performing certain actions (for example, prohibiting the disposal of property that is the subject of claims),
- taking certain actions in relation to
- suspend collection within the framework of already initiated enforcement proceedings, etc., for example, suspend the effect of the decision (Article 140 of the Code of Civil Procedure of the Russian Federation).
The applicant has the right to independently propose to the court an option to secure the claim, which will ensure his property interest. However, the requirement to secure the claim must be proportionate to the value of the claim. The court will not seize real estate when the value of the claim is 50,000 rubles, and the price of the real estate is many times higher.
How to file a motion to secure a claim
The text of the document must include the following information:
- what facts and information served as the basis for applying to the court to secure the claim;
- what measures, in the applicant’s opinion, should be taken by the court.
A petition to secure a claim is submitted through the court office (it is also allowed directly to the judge).
The advisability of applying security measures for a claim depends solely on the opinion of the judge. The court does not notify the persons involved in the case about the receipt of a request to secure the claim. The result of the consideration is formalized regarding the adoption of measures to secure the claim. It is executed immediately by issuing it to the plaintiff. Subsequently, the plaintiff has the right to file a security claim to replace one security measure with another, and the defendant can cancel the measures by filing a corresponding application with the court.
Clarifying questions on the topic
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- imposition on property belonging to the defendant and located in him or other persons;
- injunction against the defendant perform certain actions;
- prohibiting other persons from performing certain actions related to the subject of the dispute, including transferring property to the defendant or fulfilling other obligations in relation to him;
Svetlana
Catherine
Svetlana
Securing a claim - this is the adoption by the court, at the request of the persons participating in the case, of procedural measures provided for by law, guaranteeing the execution of a possible decision on the stated claim.
Securing a claim is allowed in any situation in the case if failure to take measures to secure the claim may complicate or make it impossible to enforce the court decision.
Securing a claim can be done by a court or a judge at the request of persons participating in the case.
Measures to secure a claim depend on the subject of the claim.
Measures to secure a claim may be:
imposition on the defendant and others
If necessary, a judge or court may take other measures to secure the claim, and several measures may be allowed.
The purpose of seizure of property to secure a claim:
- its preservation until the case is resolved in court.
The judge or court immediately reports the measures taken to secure the claim to the relevant state bodies or local government bodies that register property or rights to it, their restrictions (encumbrances), transfer and termination.
If the prohibitions are violated, the perpetrators are subject to a fine of up to 1,000 rubles. In addition, the plaintiff has the right in court to demand from these persons compensation for losses caused by failure to comply with the court's ruling to secure the claim.
Measures to secure the claim must be proportionate to the claim stated by the plaintiff.
In judicial practice, the measure most often used to secure a claim is related to the seizure of property or funds belonging to the defendant and located in credit institutions.
The procedure for seizing property is defined in detail in Federal Law No. 229-FZ of October 2, 2007 “On Enforcement Proceedings”.
List of property that cannot be foreclosed on under executive documents
From June 1, 2020, collection under writs of execution cannot be applied to monetary payments of a social nature (dated 02/21/2019 N 12-FZ “On Amendments to the Federal Law “On Enforcement Proceedings”).
Procedural procedure for securing a claim
Question about canceling security for a claim resolved in court. Persons participating in the case are notified of the time and place of the court hearing, but their failure to appear is not an obstacle to consideration of the issue of canceling the security for the claim.
In case of refusal of the claim, the measures taken to secure the claim are preserved until the court decision enters into legal force. However, a judge or court, simultaneously with the adoption of a court decision or after its adoption, may issue a court ruling on the cancellation of measures to secure the claim. If the claim is satisfied, the measures taken to ensure it remain in effect until the court decision is executed.
The judge or court shall immediately notify the relevant state or local government bodies that register the property or rights to it, their restrictions (encumbrances), transfer and termination of the cancellation of measures to secure the claim.
A private complaint may be filed against all court rulings on securing a claim. If a court ruling on securing a claim was made without notifying the person who filed the complaint, the period for filing the complaint is calculated from the day when such person became aware of this ruling.
Filing a private complaint against a court ruling:
- on securing a claim - does not suspend implementation of this definition;
- on cancellation of the claim security - suspends execution of a court ruling;
- on replacing some measures to secure a claim with other measures - suspends execution of a court ruling.
A judge or court, allowing security for a claim, may require the plaintiff to provide security for possible losses for the defendant. The defendant, after the court decision, which rejected the claim, enters into legal force, has the right to bring a claim against the plaintiff for compensation for losses caused to him by measures to secure the claim, taken at the request of the plaintiff.