Sample claim under the contract for the provision of services. Services were performed but not paid for.

In one of our publications, we looked at the situation in a construction contract, when the customer, after the acceptance and signing of the certificates, realized that he was not satisfied with the work (Is it possible to challenge the signed certificate of work performed). Analysis of legislation and judicial practice made it possible to establish several approaches to resolving the conflict between the contractor and the customer, depending on the actual circumstances.

How are things going in the area of paid services? Can the customer challenge the services performed after their acceptance (signing of the acts by both parties)?

Claim for debt collection: sample and rules for drawing up

The claim procedure is the first and main pre-trial stage of working with debtors. The debt collection claim itself is a written demand from the creditor to repay the debt in order to avoid litigation. A well-drafted debt collection claim will help convince the debtor of the illegality of his actions and the threat of legal proceedings due to failure to comply with the creditor’s demands for debt repayment. We will tell you how to write it correctly in the article.

The writing of a claim must be taken responsibly, since in the event of further appeal to the court, it will be presented in the materials of the court case:

From the text of the claim, all the applicant’s demands regarding the amount of debt and the timing of its repayment must be extremely clear.
Particular attention should be paid to the basis of the debtor's obligation to pay (agreement, receipt, primary accounting documents, etc.). If the debt arose as a result of non-payment for delivered goods, it would be logical to indicate the numbers of unpaid invoices in the claim.
A competent reference to legislative acts will “add weight” to the claim and indicate the unlawfulness of the debtor’s actions.
A mandatory point of the claim is the indication of bank details for the transfer of funds, which must match the details specified in the contract.

The claim is signed by an authorized person of the applicant: the sole executive body (General Director) or a person acting on the basis of a power of attorney. The claim must be sent to the legal address of the debtor by registered mail with acknowledgment of delivery. Additionally, the claim can also be sent by email.

Sample claim for debt collection

To: Full name of the addressee-debtor

CLAIM

Agreement No.___ dated “____” __________ ___ was concluded between ________________ and _________________.

(indicate the name of the applicant) (indicate the name of the debtor) (indicate the number and date of the agreement)

(hereinafter referred to as the “Agreement”). Products were delivered/work was performed/services were provided to _______________,

(indicate the name of the debtor) (select the one you need)

which is confirmed by ___________________________________________________________________________.

(list primary supporting documents: acts, invoices, etc.)

Thus, ___________ fulfilled its obligation to supply products/perform work/

(indicate the name of the applicant) (select the one you need)

According to the terms of the Agreement, ____________ undertook to make payment within _____ days from the date

(indicate the name of the debtor) (indicate payment terms)

delivery of goods/performance of work. However, this obligation was not fulfilled.

Currently, your organization has an overdue debt in the amount of _____________________ rubles (indicate the amount of debt in words).

(indicate the amount of debt)

According to Art. 309 of the Civil Code of the Russian Federation, obligations must be fulfilled properly in accordance with the terms of the obligation and the requirements of the law, and unilateral refusal to fulfill the obligation and unilateral change of its conditions are not allowed.

We demand that the debt be repaid by “___” ________ ___, otherwise _________________

(indicate the deadline for debt repayment) (indicate the name of the applicant)

will be forced to go to court to forcefully collect the debt.

We also remind you that according to paragraph 1 of Art. 395 of the Civil Code of the Russian Federation for the use of someone else’s funds due to their unlawful retention or evasion of their return, interest on the amount of these funds is subject to payment.

The amount of interest for a legal entity is determined by the bank interest rate existing at the place of its location on the day of fulfillment of the monetary obligation or its corresponding part. The Agreement does not provide for any other interest rate. Today, the discount rate (refinancing rate) of the Central Bank of the Russian Federation is 8.25% per annum.

Details for transferring funds: INN/KPP ___________, bank __________, Account account ________________, Account account __________________, BIC _________________.

(indicate the applicant’s bank details for transferring funds)

Position of the authorized person ____________________ / Full name of the authorized person /

debt collection claims in Word format (.DOC file).

Sample response to a claim for debt collection

To: addressee's full name

(full name of the sender-debtor) from __________________________

(name of locality)

"__" __________ ____ G.

RESPONSE TO CLAIM

In response to your claim from “____” _____________ ____, we inform you that the debt to

(indicate date of claim)

______________________ in the amount of _______________________ we confirm/do not confirm. Payment

(indicate the name of the applicant) (indicate the amount of debt)

debt will start from ___________________________.

(indicate the start date of debt payment)

Position of the authorized person ____________________ / Full name of the authorized person /

How can a customer challenge the services performed in practice?

This is perhaps the most interesting part of the story: how exactly should the customer act, who accepted the services, signed the acts, but was dissatisfied with the quality (volume, timing) of the services provided. Trying to challenge the services performed, some customers demonstrate amazing ingenuity by revoking the signatures on the completed service acceptance certificates.

There are judges who regard such a “review” as indirect evidence of the customer’s disagreement with previously accepted services. However, you should not place much hope on such an action. From a legal point of view, acceptance acts are not civil transactions, which means they cannot be declared invalid or demanded to be cancelled.

Moreover, civil legislation does not provide for the execution of acts as a mandatory condition for the acceptance of performed services. The basis for payment is the very performance of specific actions by the performer. Even if the customer refuses to fulfill the contract unilaterally, the services rendered up to this point will still have to be paid for, regardless of the fact of termination of the contract.

Once again, the judges directly indicate that in the absence of evidence that the contractor has performed certain actions for the customer, the act itself, signed without comments, does not prove the proper provision of services.

In this regard, the actions of the customer before applying to the courts are of fundamental importance. It is the customer who must submit documents documenting the improper fulfillment of obligations by the counterparty:

written notification to the contractor of all detected deficiencies (deviations in terms, volume or quality of services provided);
reasoned refusal to sign the submitted acceptance certificates;
evidence of deficiencies themselves.

Since deficiencies are most often discovered after acceptance, they should be recorded, for example, a separate report should be drawn up on the identified deficiencies in the services provided. The contractor should be involved in signing such a document, but the latter’s refusal is not an obstacle to the customer drawing up a unilateral act. This act must be sent to the contractor along with the claim.

What can the customer expect? When receiving low-quality services, the customer has the right to demand a reduction in the contract price. In some cases, you can refuse the concluded contract and demand that the contractor compensate for the losses caused. If advance payments have already been transferred to the contractor's account, these amounts may be recovered as unjust enrichment (if services are not provided).

It can be useful

The parties did not specify in the text of the agreement the content and scope of the services to be provided? This means that the subject of the contract remained unagreed. And this is an essential condition. Thus, there are grounds to consider the service agreement not concluded. In this case, even the contractor will not be able to force the customer to fulfill the contract through the court. However, we should not forget that the actual fulfillment of the contract by the parties leads to its healing.

At the same time, the absence of a price clause in the contract does not allow the contract to be recognized as not concluded. The cost will be determined based on the usual prices for services of this kind.

What types of penalties are there?

The creditor has two ways to collect the resulting debt:

claim (pre-trial) procedure;
judicial procedure;

It should be noted that both of these methods cannot be considered as two separate ways of resolving a debt collection dispute. Or rather, they are interconnected and consistent. In some cases, the legislation establishes the impossibility of going to court without taking pre-trial measures to resolve the dispute (for example, these are disputes under contracts for the carriage of goods, transport expeditions).

A mandatory claim procedure may also be specified in the contract. In any case, you should not neglect the claim procedure for resolving a dispute - this will help save time and money, as well as “relieve the load on the courts.”

The judicial path to resolving a dispute begins with the filing of a statement of claim in court and ends with the receipt of a writ of execution. After receiving the writ of execution, it must be handed over to the bailiffs and then the long process of enforcement proceedings begins. As mentioned earlier, the entire legal procedure from the moment the claim is filed until the debt is received can take many years, which is a very disappointing fact.

Penalty and writs of execution during the moratorium period

One of the consequences of the introduction of a moratorium is the cessation of accrual of penalties (fines and penalties) and other financial sanctions for non-fulfillment or improper fulfillment by the debtor of monetary obligations and mandatory payments for claims that arose before the introduction of the moratorium.

In addition, the introduction of a moratorium against the debtor also means that it is impossible for the creditor to obtain compulsory execution by presenting the writ of execution directly to the bank. However, it is worth considering that the moratorium applies only to the most affected sectors of the economy

8-921-903-17-16

A fine of five times the cost of goods for each month and other changes to the law “On the Protection of Consumer Rights”

Recently, compliance with the claim procedure before filing it with the arbitration court has become a mandatory condition for accepting a statement of claim for proceedings (Article 4 of the Arbitration Procedure Code). From this moment on, the number of companies that make serious mistakes in this has increased and, as a result, the court either returns the statement of claim, or after considering the case, the court leaves it without consideration due to identified violations.

What is a receipt debt?

IOUs occur when one individual makes a loan to another individual. Not only cash, but also things defined by generic characteristics can be transferred as a loan. To confirm the fact of the loan and its terms, a receipt from the borrower or another document certifying the transfer by the lender of a certain amount of money or a certain number of things to him may be presented.

If you have a written agreement or receipt, you can safely go to court. However, failure to comply with the simple written form of the contract deprives the parties of the right in the event of a dispute to refer to witness testimony to confirm the transaction and its terms, but does not deprive them of the right to provide written and other evidence.

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Complaint about improper provision of services

A complaint about improper provision of services can be prepared and submitted to supervisory and control authorities, namely,

to the prosecutor's office;
to the district administration;
to the federal service that oversees consumer protection;
to higher authorities;
if a complaint is filed against a person who is a member of a chamber, then the complaint can be filed with the appropriate chamber, for example, against a notary in the notary chamber of the relevant entity.

In fact, a complaint is similar to a claim, with the only difference being that the claim is addressed to the person providing the service, and the complaint is addressed to the supervisory and control authorities. A complaint is made in free form, indicating the necessary information:

to whom complaints are addressed;
who the applicant is (indicate full name, address, telephone number, email if available);
the document is called a “complaint”;
the text of the complaint sets out the circumstances of the case similar to the complaint, including what the violation of the applicant’s rights is, and how this is expressed. References to legal norms are also provided if the applicant knows them;
in the petition part, the applicant indicates his requirements, i.e., what he asks: to conduct an inspection, apply measures, etc.;
a list of attached documents is indicated, if any;
the complaint must be signed, the signature must be deciphered, and the date the complaint was signed must also be indicated.

General points

Disputes may arise between participants in any transaction that involves payment. To avoid having to deal with it in court, you should write a claim to the counterparty. Then there is a chance to demand fulfillment of obligations under the contract.

What you need to know

A claim is a letter that is sent when one party to a contractual relationship expresses dissatisfaction with the quality of obligations that are fulfilled by the second party (or if the obligations are not fulfilled at all).

Before preparing written claims, the parties conduct oral negotiations. If they are unsuccessful, then this document is written.

A claim is a method that helps resolve a controversial situation. After all, such a letter has legal force.

Purpose of the document

Sometimes the parties, before going to court to resolve a dispute, try to resolve all issues in a pre-trial/claim procedure.

A claim allows you to collect a debt, eliminate debts without having to incur the cost of paying state fees.

Resolving issues through a claim procedure allows one of the parties to protect their rights. Disputes must be resolved pre-trial in the following cases:

if required by federal law;
if this is stipulated in the agreement drawn up between the parties.

If the pre-trial procedure was not followed, it is considered that the application was submitted with violations. And therefore, the claim can be returned (Article 135 of the Code of Civil Procedure) or left without movement (Article 128 of the Arbitration Procedure Code).

The goal pursued when filing a claim is to resolve the conflict that arose during the transaction.

For example, this is a situation where a low-quality product is provided or a low-quality service is received. This is an opportunity to bypass the court.

A claim can be made by any person (both individuals and legal entities).

In what form is the answer given?

You should receive a response to your complaint within a month. To dismiss this is quite stupid and not advisable, even if the document is drawn up incorrectly and contains ridiculous requirements. In this case, it is better to give a detailed answer indicating errors than to remain silent at all.

According to the law, the complaint must be carefully studied and considered. The party violating the contract is obliged to check the legality of your claims and make one of the following decisions:

Fully satisfy your requirements,
Partially agree with the arguments
Refuse.

In the first two cases (if an advance payment for services has already been made), the following outcome of events is possible:

The offender admits his guilt and corrects mistakes, deficiencies, etc.
Refund of prepayment,
Compensation for losses incurred,
Debt repayment.

If the other party does not agree with the requirements, then it must immediately notify you in writing.

Note! It is very important in your response to provide explanations for each point of the claim and for each requirement, since they are usually of a different nature. In this case, it is necessary to refer to those legislative acts that confirm the legality of the refusal.

Claim for refund of advance payment

In claims for the return of the advance, you should pay attention to the fact that if you do not terminate the contract, then the return of the advance may be refused.

It is also worth keeping in mind that the penalty for the advance payment begins only if it is expressly provided for in the contract

The accrual of penalties on advance payments is not directly provided for by the terms of the agreement concluded by the parties. Under such circumstances, the courts had no basis for collecting a penalty from the company for late payments
Determination of the Judicial Collegium for Economic Disputes of the Supreme Court of the Russian Federation dated November 29, 2018 in case No. 305-ES18-11668, A40-204570/2017

Claim for refund of advance payment

In claims for the return of the advance, you should pay attention to the fact that if you do not terminate the contract, then the return of the advance may be refused.

It is also worth keeping in mind that the penalty for the advance payment begins only if it is expressly provided for in the contract

The accrual of penalties on advance payments is not directly provided for by the terms of the agreement concluded by the parties. Under such circumstances, the courts had no basis for collecting a penalty from the company for late payments
Determination of the Judicial Collegium for Economic Disputes of the Supreme Court of the Russian Federation dated November 29, 2018 in case No. 305-ES18-11668, A40-204570/2017

Where to start filing a claim?

Typically, the preamble to the claim consists of the basis of your relationship. It is important for the court to understand under which particular agreement or invoice you are making a claim.

Then the fun begins. You need to carefully read the contract, namely, the terms of payment and the obligations of the contractor. For example, in construction or supply contracts, you can often see the phrase “obliged to hand over the executive documentation (passport for the goods)” and/or “payment occurs after the contractor fulfills the obligations stipulated by the contract.”

If you do not have written confirmation of the transfer of the executive documentation (passport for the goods), then the court will deny your claims.

The claim for collection of debt and penalties under the work contract was rightfully refused, since the contractor did not transfer the performance document to the customer within the prescribed period.
Resolution of the Thirteenth Arbitration Court of Appeal dated November 27, 2018 N 13AP-25828/2018 in case N A56-50404/2018

If the contract establishes additional requirements before payment, they must be fulfilled. For example, re-send the executive documentation in a valuable letter with a list of attachments.

If there are no additional requirements, you indicate the amount of debt owed to your organization at the time of filing the claim.

What documents must be attached to such a claim?

Addendum to the contract for the provision of services;
Agreement to the contract;
Invoice;
Receipt for payment for services performed;
Sales receipt;
Certificate of completion.

Even if the contract for the provision of services did not consider the execution of a unilateral act, you can confirm the service you provided in another way, for example, through correspondence with the customer by e-mail or a logbook.

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Where to start filing a claim?

Typically, the preamble to the claim consists of the basis of your relationship. It is important for the court to understand under which particular agreement or invoice you are making a claim.

If you do not have written confirmation of the transfer of the executive documentation (passport for the goods), then the court will deny your claims.

The claim for collection of debt and penalties under the work contract was rightfully refused, since the contractor did not transfer the performance document to the customer within the prescribed period.
Resolution of the Thirteenth Arbitration Court of Appeal dated November 27, 2018 N 13AP-25828/2018 in case N A56-50404/2018

If the contract establishes additional requirements before payment, they must be fulfilled. For example, re-send the executive documentation in a valuable letter with a list of attachments.

If there are no additional requirements, you indicate the amount of debt owed to your organization at the time of filing the claim.

Where to start filing a claim?

The first thing you need is to determine the recipient’s address using the Federal Tax Service database. Most mistakes are made at this stage. Regardless of what is specified in the contract, the claim should be sent to the address indicated in the Unified State Register of Legal Entities on the date of preparation.

It may even be that the court will accept your application for proceedings, but during the proceedings the defendant will state that the claim should be left without consideration due to the fact that the claim was sent to the wrong address. As a result, 3-4 months were lost and now everything needs to be done again.

Leaving the statement of claim without consideration, the courts of the first and appellate instances proceeded from the fact that the plaintiff, as evidence of compliance with the claim procedure for resolving the dispute, presented claim No. 119/12-18 dated December 27, 2018, which was sent to an address that is not listed in the extract from the Unified State Register of Legal Entities against the defendant, evidence that the actual location of the defendant is the address to which the claim was sent was not presented in the case materials.
Resolution of the Arbitration Court of the Moscow District dated February 26, 2020 in case No. A40-103996/2019

To check the current address, go to the tax office website and indicate the TIN of the future defendant. Let's say, based on the search results, we are given the following address: 198188, St. Petersburg, st. Zaitseva house 41, letter A, room 14-Н:23-24, office 221. No matter how long it is, it must be indicated in full.

Next we move on to the essence of the requirements. There are also many mistakes here, which later make it difficult for a lawyer to defend the case in court, so if you do not plan to participate in the trial yourself (and from October 2021, only persons with a higher legal education can be representatives in the arbitration court), then it would be better, if the claim will be prepared and sent by a lawyer.

General drafting rules

Competent pre-trial work with the executor can help in future court proceedings, and sometimes allows you to completely avoid a long and unpleasant process. The beginning will be made by legally correct drawing up of a claim against the guilty party. The list of violations of contract clauses is quite long, here are just a few:

Missing deadlines;
Poor provision of the service or provision of it not in full;
Causing loss to one of the parties, direct or indirect;
Origin or timing of debt repayment.

In each case, the claim is drawn up based on the provisions of the specific contract, the requirements and procedures specified in it. The law does not provide for a set template, but there are still uniform requirements for registration. If the claim is made by the customer:

Indicate your own name, position and full name of the responsible person, complete information about the company;
Write down all known information about the contractor, his name, address, telephone number and full name of the manager;
The appeal must be titled. As a sample, you can use the words “Claim” or “Claim Letter”;
If the claims contain a material component, then in the “header” you need to indicate the total amount of all losses and debts offered for compensation;
The descriptive part must contain the essence of the inconsistencies and the circumstances under which they occurred, mention the date and number of the contract, a list of articles of legislation and clauses of the agreement that were violated;
The desired date has been established by which the claim must be considered by the dishonest party, and the procedure for the customer’s actions in the event of the contractor’s refusal to fulfill the requirements or elimination of deficiencies is described. An example is a claim regarding the elimination of defects within the warranty period against the developer.

Sample

This document does not have a clearly approved form. If one person wrote to another that it is time to pay their debts, describing the situation, referring to the contract and regulatory documents, indicating exactly the amount of the debt, then this is already a document that can be called a claim. The main thing is that it is clear who is making demands, to whom and for what reasons.

This is also important to know:
Judicial practice in collecting debt on a receipt from an individual

As a guide to the form of such a document, you can take a sample statement of claim for debt collection. It is enough to remove all information about the court, replace the words plaintiff and defendant with debtor and creditor, and the claim as a legally significant document will be ready.

Where to start filing a claim?

Leaving the statement of claim without consideration, the courts of the first and appellate instances proceeded from the fact that the plaintiff, as evidence of compliance with the claim procedure for resolving the dispute, presented claim No. 119/12-18 dated December 27, 2018, which was sent to an address that is not listed in the extract from the Unified State Register of Legal Entities against the defendant, evidence that the actual location of the defendant is the address to which the claim was sent was not presented in the case materials.
Resolution of the Arbitration Court of the Moscow District dated February 26, 2020 in case No. A40-103996/2019