Photo from the website www.rtr.at
The main thing that interests lawyers in court notices is- whether they were appropriate. Sending a letter according to all the rules does not at all guarantee that you will receive it, but it may deprive you of the opportunity to take part in the proceedings. Conversely, a violation postal instructions threatens to have the case reviewed in court, even if the addressee is well aware of the process. Similar problems can arise between parties to a dispute who are required to share documents with each other. Legal practitioners answered what to do if the notice of the court hearing arrived too late or was not received by legal address, and what to do when the counterparty sent an empty letter or newspaper instead of a statement of claim. Experts explained which delivery errors can be used to your advantage and how to counteract postal delays in the process.
1. What are the most common mail errors that can be used as an argument for improper notice?
1) Return of the court letter before the seven-day period
In cases No. A40-69025/2015, No. A40-68987/2015, the court found it legal to bring the Russian Post to administrative liability for violating the terms of storage of court correspondence, a senior lawyer at DS Law gives an example.
2) Just one attempt to serve a postal notice
Postal service employees are limited to one notification, after which they return the letter to the sender, but according to the rules, two attempts are required, Voronina says. In case No. A40-95039/2016, the Moscow District Court sent the case for review because only one notice was sent to the third party.
3) The notice was delivered to the minor at the registration address of the participant in the case
If the postman went to his home address in work time, then the person being notified may be at work, but his child (for example, a high school student) is at home, gives an example lawyer of the corporate practice department of the law office Stanislav Koshkidko. If the postman gives a notice to a minor without hesitation, it will be considered improper, the lawyer reports.
2. What to do if the notice arrived too late (and what is considered “too late” in judicial practice)?
Art. 121 of the Arbitration Procedure Code indicates that notice of the date of the hearing must be sent at least 15 days in advance (although it does not say when it should be received). However, in most cases this is enough to familiarize yourself with the case and form a position, says senior lawyer Tatiana Voronina. As for the Civil Procedure Code, it does not specify a specific period, but there should be enough time to prepare.
In general, “too late” is a category that the court evaluates based on specific circumstances, argues Partner, Head of Litigation Practice Yulia Karpova. If the notice arrived one or two days before the meeting, this will not help to cancel the judicial act, but it will become an argument to postpone the meeting, notes Ivan Stasiuk from a law firm. But don't assume that a motion to adjourn is certain to be granted, he warns. To increase your chances, you need to let the court understand that you object not only on formal grounds, but also in essence. To do this, Stasiuk advises submitting at least preliminary objections.
Since January 1, 2017, the Code of Civil Procedure may still have a specific guideline for determining the criteria for a reasonable period in courts of general jurisdiction, Voronina suggests. Part 7 art. 113 of the Code of Civil Procedure establishes that information about the progress of a case on the Internet in cases with a shortened consideration period occurs no later than three days before the start of a trial or other event.
3. What to do if the letter arrived empty?
If a letter is without an inventory, then it is difficult to reliably prove its contents, says Voronina, but indirect “evidence” can be used, for example, the weight of the item: “If your opponent claims that he sent you documents on 15 sheets, then they should weigh at least 150-180 grams This means that a 30-50 gram letter could not contain such attachments.” Karpova advises opening correspondence with the participation of postal employees, the recipient, and independent persons. In any case, it is worth familiarizing yourself with the case in order to properly prepare for the meeting, Stasiuk emphasizes.
4. What should I do if the investment inventory does not match the description?
In theory, a postal employee should check whether the description of the letter matches its contents, but in practice no one does this, he says Maximilian Grishin from the law firm “Ilyashev and Partners”. If there is a suspicion that the counterparty will put a newspaper instead of a statement of claim, the envelopes should be opened in front of a notary or directly at the post office with a document drawn up, advises Grishin. Voronina also reminds us of the possibility of opening an envelope at the post office. According to her, the authenticity of the inventory must be refuted by an act drawn up by department employees in the form F.51-v. Otherwise, even an incorrect inventory remains valid as evidence.
5. If the notice was not received at the legal address or place of registration
Unfortunately, in most cases nothing can be fixed. And it is better to take care in advance that the address in the documents is indicated correctly. Individuals themselves bear the risk of not receiving correspondence at their address (Part 4 of Article 123 of the Arbitration Procedure Code), says Karpova: “As experience shows, the courts have a rather tough position on this issue.” At the same time, it is usually considered inappropriate to notify to an inaccurate address, for example, if the Unified State Register of Legal Entities indicates the number of the house and office, but only the house number is indicated on the envelope, suggests Stasiuk. Voronina shares another story. The plaintiff in the application wrote a contact address at the place of registration, and the power of attorney of his representative indicated another one. Subsequently, the court sent subpoenas for only one of them, the plaintiff did not receive them, and then filed an appeal. She agreed that the correspondence should have been sent to both addresses known to the court.
6. What to do if you forgot to notify the counterparty/court about the change of address?
“Remember and notify,” Grishin answers. Although the statement of claim to the court is accompanied by a current extract from the Unified State Register of Legal Entities and evidence of compliance with the claim procedure, forgetfulness can still spoil your nerves, says the lawyer of Ilyashev and Partners. The court will then simply not accept the argument that you did not receive letters due to a change of address, explains Koshkidko. And if you inform your opponent about the change only verbally, he can take advantage of this and continue sending documents to the old address, warns the Padva and Epstein lawyer.
7. Is it possible to prove that the letter was sent “retroactively”?
Technically, it is more difficult to falsify a shipment than before, says Grishin. According to him, Russian Post closes registers at the end of the day and it is simply impossible to “add” anything there. If the letter was nevertheless sent “retrospectively,” this is clear from the tracking, which is quite a proof, at least in arbitration courts, Grishin shares.
But if the letter is simple, then tracking will not come to the rescue. Once, a complaint was received by the court six months after the deadline for filing it had expired, says Karpova. Nevertheless, the stamp on the simple letter showed that it had been sent just six months ago. Only an internal investigation at the postal organization helped to establish the date of actual dispatch, Karpova shares.
8. How do they delay the legal process using mail? How to resist this?
P. 3-5 tbsp. 65 of the APC requires the disclosure of evidence before it is presented to the court. But if they are sent to the other side on the day (or on the day) of the meeting, then this is both an abuse of law and a delay in the process, Grishin has no doubt. A foreign person who accidentally begins to participate in the process will also help to prolong the proceedings. After all, in a good way, he needs to be notified in accordance with the requirements of the 1965 Hague Convention, says the lawyer of Ilyashev and Partners. Addressees may not receive correspondence for a long time, Koshkidko continues.
9. How to correctly formulate the conditions for notifications in a contract?
The easiest way is not to write anything, Grishin is categorical. Then the individual will be notified at the last known address of registration (stay), and the company - at the location address, which is publicly available in the Unified State Register of Legal Entities (as required by law). “Counterparties are least concerned about your problem with a large number representative offices, branches, offices, warehouses and so on,” explains Grishin. And Koshkidko advises indicating in the contract the address from the Unified State Register of Legal Entities and the postal address (even if it coincides with the legal one). According to the lawyer, it can also be provided that the documents are sent by e-mail, and then be sure to send the originals by regular mail, especially if it is urgent.
10. New methods of notification in court - do they work?
In fact, SMS notifications are not new; they began to be introduced in courts of general jurisdiction three to four years ago, and in arbitration courts even earlier, corrects Grishin. The only “but,” according to him, is that the court does not receive information that the notice was actually received, and precisely by the addressee. But in practice automatic system notifications leave much to be desired and only complicate everyone’s life, giving way to the well-known “mail-telephone-telegraph” scheme, Grishin regrets. The SMS notification method is convenient in itself, but does not work well, echoes Koshkidko. “Several times when filing claims in a court of general jurisdiction, I agreed in writing to SMS notifications. And they never came,” the lawyer shares his experience.
11. How can notifications be improved?
The future, of course, lies in electronic notification methods, which are already used in arbitration courts, admits Voronina. On January 1, 2017, changes were made to the Code of Civil Procedure: now government agencies and legal entities, after the first notification, are also required to independently monitor information on the official websites of the courts. But the rules were not really thought through, the expert notes. The Code of Criminal Procedure obliges to include in the case evidence on what day and time the information was posted on the court’s website, but the Code of Civil Procedure does not have this. “It’s not clear how to prove that the information was uploaded to the website later than indicated,” Voronina shrugs. In her opinion, it is necessary to oblige courts of general jurisdiction to record the date and time of publication of information. And Koshkidko considers one of the most serious shortcomings to be the incompetence of post office employees. “We can’t speak for everyone, but the post office should pay more attention to personnel,” he concludes.
What to do if the package that was supposed to be delivered by Russian Post never got into your hands? If in mailbox there was not a single notification, the parcel lay in the post office for a month, and then returned to the sender?
Tyumen resident Irina addressed this complaint to the site’s editors. “I ordered a book from one of the online stores. I was surprised why it took so long for it to be delivered. When I figured out to enter the tracking number on the Russian Post website, I found out that the parcel was already in Tyumen, and since I didn’t pick it up, it was sent back. I was very upset - there was not a single notice in the box. At the same time, notifications about other parcels, for example, from China, are delivered to me by department 26 regularly. True, there was one more case when the notification was not delivered, but then I managed to “intercept” the parcel using the tracking number - I saw on the website that it was in the department.”
As it turned out, Irina’s case is not the only one. Another Tyumen resident, Svetlana, said that the postman of branch 62 often does not bring them notices. “I track parcels on the post office website, although this is not always possible. Every time I’m indignant that there are no notices, for two months they arrive normally. And then they won’t wait again. We live in Patrusheva, apparently, it’s difficult for postmen to get to us, although this does not justify them.”
Russian Post, in response to Irina’s question about interruptions in the work of the 26th branch, replied that notifications about the receipt of this parcel were delivered to her box regularly - on March 16, when the parcel arrived, on March 21 and on March 26. “Currently, control over the delivery of notices for receiving postal items has been strengthened,” notes the Department of the Federal Postal Service of the Tyumen Region.
The response to the request also states that you can track the passage of the parcel yourself on the Russian Post website. Then you can receive the shipment without waiting for notification, having the number in hand mail id and document.
In addition, if a person did not receive a notification and the parcel was returned to the sender, he has the right to file a claim within 6 months from the date of dispatch.
“To conduct an inspection on this issue, it is necessary to indicate information about non-fulfillment or improper fulfillment of obligations under the contract for the provision of postal services, provided for by the requirements of Art. 55 clause 6 of the Federal Law “On Communications” No. 126-FZ dated 07/07/2003, namely: type postal item, 14-digit postal indicator for domestic mail and 13-digit for international mail, date and place of receipt, destination, address and full name of the sender and addressee. The claim must be accompanied by a copy of the contract for the provision of postal services or another document certifying the fact of the conclusion of the contract (receipt, list of attachments, etc.), as well as other important documents containing information about non-fulfillment or improper fulfillment of obligations.”
What to do if the package that was supposed to be delivered by Russian Post never got into your hands? If there was no notice in the mailbox, did the parcel lie in the post office for a month and then return to the sender?
Tyumen resident Irina addressed this complaint to the site’s editors. “I ordered a book from one of the online stores. I was surprised why it took so long for it to be delivered. When I figured out to enter the tracking number on the Russian Post website, I found out that the parcel was already in Tyumen, and since I didn’t pick it up, it was sent back. I was very upset - there was not a single notice in the box. At the same time, notifications about other parcels, for example, from China, are delivered to me by department 26 regularly. True, there was one more case when the notification was not delivered, but then I managed to “intercept” the parcel using the tracking number - I saw on the website that it was in the department.”
As it turned out, Irina’s case is not the only one. Another Tyumen resident, Svetlana, said that the postman of branch 62 often does not bring them notices. “I track parcels on the post office website, although this is not always possible. Every time I’m indignant that there are no notices, for two months they arrive normally. And then they won’t wait again. We live in Patrusheva, apparently, it’s difficult for postmen to get to us, although this does not justify them.”
Russian Post, in response to Irina’s question about interruptions in the work of the 26th branch, replied that notifications about the receipt of this parcel were delivered to her box regularly - on March 16, when the parcel arrived, on March 21 and on March 26. “Currently, control over the delivery of notices for receiving postal items has been strengthened,” notes the Department of the Federal Postal Service of the Tyumen Region.
The response to the request also states that you can track the passage of the parcel yourself on the Russian Post website. Then you can receive the shipment without waiting for a notification, having the postal ID number and document in hand.
In addition, if a person did not receive a notification and the parcel was returned to the sender, he has the right to file a claim within 6 months from the date of dispatch.
“To conduct an inspection on this issue, it is necessary to indicate information about non-fulfillment or improper fulfillment of obligations under the contract for the provision of postal services, provided for by the requirements of Art. 55 clause 6 of the Federal Law “On Communications” No. 126-FZ dated 07/07/2003, namely: type of postal item, 14-digit postal indicator for domestic mail and 13-digit for international mail, date and place of receipt, destination , address and full name of the sender and recipient. The claim must be accompanied by a copy of the contract for the provision of postal services or another document certifying the fact of the conclusion of the contract (receipt, list of attachments, etc.), as well as other important documents containing information about non-fulfillment or improper fulfillment of obligations.”
It so happened that I received all my more or less large purchases from online stores without waiting for receipt postal notices, but by tracking their path using the track number and simply coming to the post office with your passport.
I did exactly the same thing at the beginning of this January after the New Year holidays, tracking the arrival of the parcel at my post office. But the postal employee refused to look for the parcel using the track number, saying that she needed notification.
The situation was defused by the head of the post office, who clarified the delivery address and volunteered to find the required item.
The parcel was quickly found, after which the manager asked to come for subsequent shipments only after waiting for a notification from the postman, somehow stupidly explaining this: they say that when they print notices for delivery by mail, they fit 3 pieces on one sheet, and when someone comes without a notice, the notice is printed on a separate sheet, and they have a shortage of paper and are generally terribly inconvenient.
The notice appeared in the mailbox 4 (!) days after I had already picked up my parcel at the post office...
Do we have the right to receive our items by mail without waiting for the notice to be delivered?
First, we need to figure out - do we even have the right to demand the delivery of parcels to us without waiting for notification?
Or is each fact of such issuance a gesture of goodwill on the part of a specific employee?
Here is what the rules for receiving postal items, published on the official website of the Russian Post, say:
Simple letters, postcards and small parcels are delivered to the recipient's mailbox.
The postman brings registered letters to your home and hands them to the addressee against signature upon presentation of an identity card. If the addressee is not there, the postman leaves a notice in the mailbox and returns the letter to the post office.
Parcels and other registered items can be collected at the branch or ordered delivered to your home.
To receive the shipment at the branch, you need to present a notice (you can fill it out on the website) or a tracking number, as well as an identity card.
To receive a shipment addressed to another person or organization, you must present an identity document and a notarized power of attorney from the addressee.
If you do not have a notice or a tracking number, upon presentation of your ID, you can ask a Post Office employee to find the item by the name and address to which it was sent. Information from the official website of Russian Post
Based on official data, to receive the parcel the recipient must Carry only your ID with you.
The notification is not mandatory, but only a recommended document for receiving the parcel, and it is quite acceptable to replace the notification with a track number.
And even in the absence of both a notification and a tracking number (let’s say this number is forgotten, or an untracked shipment is expected), the recipient is still has the right to to receive your shipment, found by a postal employee using address information.
Accordingly, any statements in the spirit of “no notification - no shipment” are unlawful and run counter to the current job description of post office employees.
What to do
So, you tracked that your shipment arrived safely at the post office, but were faced with a refusal by postal employees to issue it to you based on your identification document due to the lack of a postal notification.
Since such a refusal contradicts the job description, having heard it, you can already begin to “build” careless post office employees and complain about their work to higher divisions of the Russian Post.
This option is simple and effective. Russian Post is a rigid totalitarian structure, the lower in the hierarchy of which a particular employee is, the fewer rights he has. Therefore, there is no doubt that an audit will be carried out at the client’s request, and almost certainly the post office employees involved will lose their bonuses for the current month.
But the realities of life are such that the smaller and more inconspicuous a person is in the social hierarchy, the more ambition he usually has. To have people nearby who, having suffered a well-deserved punishment for mistakes in their work, will harbor anger towards the person who pointed out these mistakes for the rest of their lives, and at the same time will have access to all of his mail - do you need it? Don't think.
Therefore, there is a peaceful option to resolve the situation. And it's surprisingly simple.
You just need to have the notice with you. But don’t wait for the postman to bring it to your home, but... print it yourself.
And the same official website of the Russian Post will help with this.
It is advisable to indicate in the letter the full names and positions of specific employees, but if they are not available, it is enough to indicate the post office code.
And the second option is to contact the local Federal Postal Service. This can be done by email, by phone, or by visiting their office in person.
Contacts of the local UFPS can be found on the corresponding page of the Russian Post website.
For example, in my case, local branches are controlled by the Federal Border Guard Service of the Chelyabinsk region. And the Federal PS of the Chelyabinsk region, in turn, is subordinate to the Federal PS of the Sverdlovsk region and the Ural macroregion, located in Yekaterinburg. You can contact both here and there.
This really works. Complaints are considered, the facts stated in them are verified, and negligent postal employees are punished with rubles. The Internet is full of evidence of this.
I think there is no need to explain that when drawing up the text of any complaint, you need to clearly formulate the claim and accompany it with specific facts, avoiding value judgments and getting personal.
Summing up
To receive the parcel, you must only have an identification document with you.
It is not necessary to have the notice with you - postal employees are required, at the client’s request, to search for the shipment by track number or address.
You can fill out and print the notification form yourself.
You should avoid communicating with postal employees in the style of “you owe me everything here” (despite the fact that this is true) and adhere to a polite and friendly manner of communication.
If polite requests do not lead to the desired result and post office employees demonstrate clearly inappropriate behavior and unwillingness to fulfill their official duties, then one can and should complain about their actions to the dominant postal structures.
Date of publication: 01/16/2018
Unfortunately, in our time, cases when cash on delivery does not arrive are not so rare. There may be several reasons for this, but most often it is a human factor, namely errors of the Russian Post operator or the sender himself, who incorrectly indicated the address of the recipient of the money transfer. Moreover, in the second case, by “sender” we mean the person himself who sent the parcel or parcel with cash on delivery and himself filled out the form f.112EP incorrectly (or the old cash on delivery form f.113en).
Reasons why cash on delivery (money transfer) does not arrive
1. No notification is received.
Notice is a written notification to the recipient of the cash on delivery that he has received remittance. Such a notification is generated by a Russian Post employee immediately after the transfer arrives at the post office and is given to the delivery service (postman). If the recipient of the money transfer does not show up at the post office to collect the money after the notification was sent to him, then after a few days a second notification is generated and also sent to the mailbox.
There are several reasons why the recipient (that is, you) may not receive such a notification:
- someone stole it from your mailbox
- the postman did not deliver or accidentally used the wrong mailbox
- The address of the money transfer recipient was entered incorrectly
The last case is probably one of the most common. An error in the address could have been made by you personally when filling out the form, or by a Russian Post employee who entered the data into a computer program.
Personally, in front of me, one person tried to receive a parcel sent to him by cash on delivery. But the accompanying form on which he was supposed to make the payment did not indicate the exact address or full name of the payment recipient. Only the city and zip code were indicated. The postal worker asked to call the sender and clarify the exact details. That is, in this case, the error was on the part of the sender of the parcel, who filled out the form incorrectly.
If the money transfer is not collected within 30 days, a refund is issued and the post office sends the money back to the sender.
Therefore, if you do not receive a notification, then 7-10 days after the cash on delivery is sent to your name, be sure to visit the post office with your passport. Under normal conditions, transfers should arrive in 1-2 days.
2. The cash on delivery contains incorrect information about the recipient (address and full name) and other reasons.
We discussed above a case where, for some reason, the recipient's address was incorrectly indicated when transferring money. But there are cases when both the recipient’s address and last name are indicated incorrectly. In this case, the potential recipient of the cash on delivery does not receive any notification (after all, there is no address); in addition, by his last name it is impossible to find a money transfer at the post office itself.
In this case, as in general and with any other option, when your cash on delivery was lost, you should apply for search for missing mail. They will tell you how to do this at any branch of the Russian Post. You can submit an application in person in my city of Penza only at the Main Post Office in a specially designated “window”. For those who are registered on the State Services portal, an application can be submitted online through the official website of the Russian Post.
A money order is a registered mail item, so it can be tracked by track number.
Therefore, if you are the sender of the parcel, then you must have a receipt with a tracking number by which you can track your parcel, and subsequently the cash on delivery itself. For tracking, I use the website gdeposylka.ru (to enlarge the picture below, click on it)
Search for cash on delivery
So, it makes sense to file a search for cash on delivery if there is no information about the money transfer for a week or more after it was definitely sent. You can find out about the transfer being sent from the recipient of your parcel or by the track number.
The application can be written by both the sender of the transfer and its recipient. To do this, you will need a passport and a check issued along with the shipment. Such an application is accepted within 6 months from the date of sending the postal item. No later than 30 calendar days, Russian Post must respond by registered mail to the applicant's address.
After writing a search application, the applicant receives a tear-off coupon:
The case of losing my cash on delivery
On October 25, 2017, I sent a parcel with cash on delivery from Penza to Orel. On November 2, the recipient picked up the parcel and paid for it, which he informed me about and, in fact, what subsequently appeared in the parcel tracking program.
When tracking the cash on delivery, I saw that the transfer had been sent to me, but had not yet arrived at my branch. Several days passed like this. At first I thought that the delay was due to holidays and weekends, but as it turned out later, this was not the case.
A week later, I went to my post office with a passport and a receipt for sending the parcel. The department said that there were no transfers in my name, but since the money was definitely sent from Orel, they sent me to the central separate post office in Penza. Here, using the number of my parcel, they found my translation, which turned out to be in my department. But my money transfer did not have a delivery address, and my first and middle names were not indicated, and the letter “A” was added to the end of my last name. That is, if I were Ivanov, then not Vladimir Ivanov would be indicated as the recipient, but simply IvanovA (a certain woman).
At the central post office, an employee told me that, just in case, I should write a search report, and she gave me the number of my transfer and told me to talk to the head of the department. It is clear that according to the rules they should not have given me the translation, but people also work at the post office... I decided not to talk to the boss, but first try to get the translation from the operator. After explaining the situation to the operator in a nutshell and stating the number of my transfer, which was given to me at the central post office, the operator gave me the transfer.
