Name of course idiotic, but it's the first thing that popped into my head. In addition, this phrase adequately describes the reaction of my opponent on my selected defense tactics.
I had a client with the status of the individual entrepreneur and dedicated to the purchase of sausage manufacturers and their further sale retailers. Therefore, for convenience, we call it the SP Sausage. Rare spiritual man, after each rendered her services she fed up we actually what was selling. This is not a brandy with candy in a bag tray, sausage stick to solid, and most importantly - more versatile. Given that these events occurred at a time when I was living in a student dormitory (although I had to live there a week - then my alma mater with a diploma callously dumped in a large and cruel world), such a "success fee" turned out to be very helpful .
So, among other things that we were doing for this client (to make the contract, to sue the meat factory / shop that sausage, money, money for sausage), got pretty funny, in terms of the result of the case.
At SP Sausage owned had absolutely it does not need a van for trade (you know, those mini-markets are common, you can google "Kupava" - that's such a shopping van will be discussed). In order not to keep on their balance sheets unused property, and get him at least some profit, my client decided to sell this van.
Here a brief digression, the importance for the further understanding of the situation: van, being a vehicle subject to registration with the traffic police. But as the van in this movement could not participate independently, and moved no more than once a year, hitched to the car, my client "bother" of registration did not. Moreover, somewhere managed to lose the TCP. In the future, it was almost played tricks on her. Well, read on and learn it yourself.
But whether the market is satiated with these vans, or IP Sausage was just unlucky, but no one did not want to buy. But in any situation, you can find a way out, and in the case of my client he found it out. Output turned aspiring entrepreneur who offered my client to take her rent above the van. Do not just rent, and with the right in the future to buy a chariot trading. We call our young entrepreneur SP box.
The joint efforts of two minds, certainly versed in business, but do not bother to apply to lawyers, was made a lease with option to purchase. The subject of the contract was the same van rental period - 2 years. Price - 250 000 rubles (this part of the agreement, we will come back to you, I will reveal it in detail, because it was the whole point).
It took 2 years, young SP box was a little older, richer and bolder. During these two years he had paid the agreed SP Sausage 250,000 rubles and used trailers as full owner. Was he all this van 2 years in one of the local markets, and stood there for another 10 years trading briskly until it had not rotted to hell.
And there would be fairy tales end, but leaped in one place at SP Van greed, representatives of suffering inherent in the nation. He began to demand that the TCP IP Sausage on a van, saying that to live without it can not. Allegedly, the most important part of this van - it is TCP and without him not being trade. What SP Sausage answered honestly that TCP lost. But the proposed SP Van, since it is so important to him, to help him in the recovery of this document. What rudely was sent to recover the document on their own and the threat of terrible about the trial is fair.
As usual, in the vanity cases forgotten my client about the conversation with SP Van, but then she received a telegram from the district court: "It is you, the citizen Sausage, to participate in the examination of the statement of claim for the recovery of SP Van with you 250 000 rubles. The meeting will be held on such and such a day, at: ________________________. "
At that time, all things SP Sausage I led, and therefore the case fell on my shoulders. It is not surprising that the meeting was to be held the day after tomorrow.
Oh well, colleagues have already noticed that the action for some reason, was filed in the District Court, and my client brought in as a defendant as an individual. The lawsuit stated that the period of validity of the aforesaid Treaty defendant lost its status as an individual entrepreneur, so the claim is presented in the ___________ District Court of __________________. It's all true, this really was. One did not consider the plaintiff and his representatives: at the time of filing a claim my client managed to once again become the sole proprietor. Yes, OGRNIP (state registration number of an individual entrepreneur) was different, but then INN has remained the same, so just - not checked once again. As it turned out - in vain.
For the trial, I have prepared a mini-review: blah blah blah, the statement of claim filed in violation of the jurisdiction of cases and, in accordance with Art. 220 Code of Civil Procedure of the Russian Federation there are grounds for termination of the proceedings. Ask the proceedings terminated. Appendix: Extract from EGRIP against SP Sausage. This review gave me what I was missing: the time to prepare sensible line of defense. Yes, and a representative of the plaintiff (the cute was even sorry to have to disappoint her) asked to postpone the hearing as a review only got in front of him and she needed time to get acquainted with them and form a position. That's Okay. Truth gave her only a week, but to me that's enough.
All the time until the next meeting of the district court, I was preparing a position for further proceedings in the court of arbitration, since the fact that the production of the district court will be terminated I was never in doubt. Well, about the position itself - paragraph later.
The next meeting of the district court is already familiar to me, handsome representative came with art in the form of support, as it became known later, his boss (aka - the director of the law firm, which collaborated with SP Van). Boss is very nice made, telling about how I abuse their rights and that the time SP Sausage now operates under another OGRNIP - then it's a different IP, and not the one with which the contract was made, which became the basis for the suit. Understand the intricacies of speech boss, I briefly stated his position, not failing to remind about the essence of the Treaty itself and its clear business focus, and also gave a brief overview about the legal status of private entrepreneurs and pro OGRNIP value in determining this status.
Definition ________________ District Court of ____________ proceedings were discontinued.
In the corridor we peacefully exchanged contacts with the director of the law firm, representing the interests of SP Van. She once again lamented the delay in my part of the final resolution of the situation. I said, "That's my job," winked at her cute slave and stomped into the office.
Now to the heart of the claim (it is unaltered now been filed in the Court of Arbitration ________________ area): IP box under the lease with option to purchase bought from SP Sausage ill-fated van. After he had paid all the money under the contract, he demanded that SP Sausage give him PTS. What was refused. Therefore asks the court to terminate the contract, to recover from the SP Sausage 250 thousand. Rubles paid to her under the lease with option to purchase, because without Title he can not use the property redeemed, therefore, that part of the agreement, which deals with redemption of the leased property, the Respondent (SP sausage) is not executed.
That's something like that. The first and obvious: good part of the agreement about the ransom is not executed, but asks why the full amount? And the rent for 2 years to pay should not have been? It is not clear, it is necessary to study the agreement.
Wow, what have we here so interesting formulated? Paragraph 1.5 .: "The price of one unit of equipment is 250 thousand. Rubles." Paragraph 2.6 .: "Lease payments under the contract are 100 thousand. Rubles a year." (Recall the term of the agreement - 2 years).
I do not know which one of them sealed, and if it was a typo. I only know what was real bargain on a price of 250 thousand., And this amount includes the lease payments and the redemption value. But such language contract to a certain extent untied my hands and decided that the best defense - attack, I wrote a counter-claim, "live" in it more and comment on the original claim SP Van. Briefly its essence was to ensure that the SP box, in violation of the terms of the contract, pays only a part of the redemption value of the equipment, so he handed over the TCP was not. Say, here we have a p. 2.6. lease payments - 100 thousand. per year, for two years - is 200,000. And the price of items of equipment of claim. 1.5. - 250 thousand rubles, it is also the redemption price. For the duration of the contract SP Van repaid all lease payments of $ 200 thousand. Rubles and paid part of the purchase price in the amount of 50 thousand. Rubles. Thus, taking into account the mixed nature of the contract concluded between the parties, we conclude that the obligations of the parties under the Lease Relations fully executed. Same obligation to repurchase the equipment performed SP Van part and he should have 200 thousand. Rubles. Blah blah blah, please collect from SP box in favor of SP Sausage 200 thousand rubles, the suit SP Van PI Sausage on collecting 250 thousand. Rubles refuse. For those interested - I can give the case number on file, honoring the first instance, there is almost 60% - my arguments. In return from you - I promise not to deanonimizirovat. Although I think I just downloaded this decision, all of Difficult and throw off you on request, I do not want to risk it.
Having made such a "knight's move" I waited for the date of the hearing. Well wait - plunged into the other things
On the day of the court hearing, appearing in court as usual ahead of time, I was tormented by the coffee machine on the 7th floor of the building of the Arbitration Court _______________ area, trying to pull out the 150 milliliters of vivacity. Achieving the desired, I turned around and saw the elevator go with the familiar legal director. firm, its nyashnye subordinate and even a certain subject, as it turned out, he SP box.
"Hello" - showed me the wonders of education.
"Good afternoon" - not left in debt and my opponents.
"Cho for the garbage you come up there a counterclaim?" - Did not follow our example IP box.
You've got to give credit to - Director of Grid. the company took his client aside and start something to him cram. I glanced at the clock, 5 minutes left, and went to a nearby urn, throw already devastated cup.
In general, the preliminary hearing, as the past week after the main, separate descriptions do not deserve. SP box with his spokeswoman stood his ground, I stuck to my position generated.
The operative part of the court was the following (thank file cabinet arbitration cases, helps to remember!): 1 In satisfaction of the initial claim SP Van refuse. 2 Counter claims SP Sausage satisfy completely. Recover from the SP in favor of Van SP Sausage principal 200,000 (two hundred thousand) rubles. 3 collect from SP Van in favor of SP Sausage expenses for payment of the state fee 6040 (six thousand and forty) rubles. 82 kopecks.
Actually the whole brief formulation of the reasoning of the decision, fully coincided with my position was: "The conditions of the Treaty in accordance with the procedure provided for in Article 431 of the Civil Code of the Russian Federation, the court concluded that the parties have agreed to under the contract obligation of the tenant in a separate order to pay the lease payments identified a total of 200,000 rubles. and making the amount of the redemption value of the equipment in the amount of 250,000 rubles. "
As promised, interested I can throw a complete solution, with a jammed personal data.
We walked out of the courtroom, SP van started shouting at Director jur. company (something like: "It's Cho garbage just happened? Type I also have to stay?").
Sympathize with my colleague, I exchanged phone numbers with her assistant, invited her for a cup of coffee, and stomped down the stairs (the desire to ride in the elevator with SP Van I have for obvious reasons, was not).
PS trial court's decision was appealed first to ___ Arbitration Court of Appeal and then to the FAS _________________ County. All the higher authorities have agreed with his colleague from the Court of Arbitration ___________ area and upheld the decision.
Title still restored, handed SP Van immediately after he had paid my client 260 thousand rubles. 60000 I have sought in respect of costs for the services of a representative, already after prosudili all three instances + 200,000 principal.