In Russia, a lot of defrauded real estate investors who are suing the developers. In order to win a court in a construction company needs to know certain details of the judicial system and the basic provisions of the legislation in the field of human defrauded real estate investors.
Lawyer Oleg Sukhov, a leading lawyer of the "First Capital Law Center outlined some of the most relevant points that you should definitely pay attention if you decide to go to court with a statement to the developer.
The first is the claim
Despite the fact that the law does not provide for mandatory Complaint, when considering these disputes, I recommend to deal with claims against the builder before filing a claim in court. Why? To avoid wasted time and unnecessary actions, because many judges because of their incompetence in these matters, or just the heavy workload, may refuse to accept the statement of claim in the absence of pre-trial settlement.
Worth noting that the claim must indicate the deadline for the return of the funds, I recommend not more than the 7 - 10 days from receipt of the claim, because if the term does not indicate the date will be determined by general rules of civil law, which corresponds to 30 days. In addition, the claim must specify the details of your current account to continue to deny the developer the possibility of invoking the claim be fulfilled in the absence of banking details. This can significantly affect the penalty.
In the claim it is desirable to clearly and justifiably express their demands, because courts (which, in my opinion wrongly) often compare the content and requirements of the Statement of Claim with the claim on the form, content and requirements. One time in my practice was a case where the court dismissed a lawsuit in the part in which he did not meet the claim.
Second, in what court handled.
In accordance with the submitted holders, as the consumer additional procedural (judicial) law, he has the opportunity to go to court, not only at the location of the builder, but at their place of residence or the place of contract, or the place of execution of the contract (for example, where is a newly built house). Such a right conferred by law holders, it is very convenient from a practical point of view, and also provides additional benefits when choosing a court to determine its workload, specific work and much more.
Third, the documents transmitted to the court.
The statement of claim with the applications in the form of contracts and payment documents should be attached all the necessary calculations for the proceedings, namely the calculation of payment of state taxes (by the way, it has a preferential payment), calculation of penalties and damages, if any, the applicant requests to charge. As well as calculation of the total cost of the required funds. In the absence of procedural documents, this may be grounds for abandonment of the claim without moving or without consideration, which will lead to considerable difficulties and a big waste of time.
Fourth, the proper and timely notice of all stakeholders.
It is as of the date and time of hearing, and the new provided to the court documents, including revised petitions, amendments to the lawsuit, responses to requests. In this issue should not expect the court office and postal services.
Fifth, when applying to a court to seize property developer.
Arrest, or security measures imposed on the ruling of the court a writ of execution. Interim measures may be directed to funds in the current account developer, or property, including residential and non-residential premises, vehicles, land, otherwise. Which requires an interim measure? It is no secret that the court with the developer can take several months, followed by irritative stage of enforcement proceedings, which also takes time. If the court can seize money or property of the potential debtor, the applicant will be confident that whenever the trial is not completed, the money the developer would not be able to spend or convert to other purposes, leaving the applicant with nothing.
Sixth, we must understand what is the organization of the builder.
How much is a large company or a solvent, a number of financial claims against it had already filed, whether in respect of the organization`s executive production, or production of special, or summary execution proceedings. Is there any bankruptcy proceedings in the Arbitration Court and at what stage. In the presence of such information may have to appeal to a court preliminarily to provide prospects for the trial and its outcome, as well as to understand in any trial to address the general rules of proceedings, or the Court of Arbitration in the process of bankruptcy.
Seventh, if the developer offers to sign the settlement agreement.
Then it is necessary to understand that this is not the worst case scenario, if it is satisfied buyers. Even if the terms of the settlement agreement will not fulfilled, this does not preclude the immediate issuance of a writ of execution on the general rules of procedure for filing such a document to the court bailiffs performers.
We should not confuse the international agreement concluded in the framework of the judicial process and the agreement between the developer and share participant prior to the trial, which has no power of judicial decisions and does not lead to the issuance of a writ of execution, in this case is binding on the parties and If in the agreement interest holders will refuse the law granted him additional rights, including a penalty, damages, jurisdiction, otherwise, in this part of winning in court it would be impossible. I recommend very carefully at the conclusion of any agreement before going to court, because experience shows that such agreements are almost never enforced, and focused only on what to buy time developer.