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COUNTERCLAIM

To the Sovetsky District Court

Rostov-on-Don, Stachki Ave., 200/2

Plaintiff (Defendant in the original claim):

Defendant (plaintiff in the original claim):

HOA "University"

Rostov-on-Don, Stachki Ave. 217/3

COUNTERCLAIMS in defense of consumer rights regarding the application of the consequences of the invalidity of a void transaction

The court is in proceedings statement of claim HOA “University” is named as a “Statement of Claim for the collection of debts for payment of utility services,” but the basis indicates payment for residential premises and public utilities. At the same time, the Debt Calculation with the initial data for the Calculation and the accounting methodology is not attached. There are good reasons to believe that the artificial confusion of concepts was necessary in order to charge for the same services several times, manipulating concepts, names, or constantly changing periods as the text was presented or during the consideration of the application.

In accordance with Art. 137 of the Code of Civil Procedure of the Russian Federation, I am filing a counterclaim with the court, which is interconnected with the original claim.

The initial claim is based on two articles of the Housing Code of the Russian Federation, which were incorrectly interpreted, while housing relations between their participants are regulated in addition to the Housing Code of the Russian Federation, also by the Civil Code of the Russian Federation, part of which is the legislation on the protection of consumer rights of the Law Russian Federation dated February 7, 1992 N 2300-1 “On the protection of consumer rights.” By Resolution of the Plenum of the Supreme Court of the Russian Federation dated June 28, 2012 N 17 “On the consideration by courts of civil cases in disputes regarding the protection of consumer rights,” legislation on the protection of consumer rights is extended to relations regarding the acquisition of goods (works, services) under a paid contract, if the price is not specified in such a contract .

Meanwhile, the legal relations under consideration include the following articles of the Law on the Protection of Consumer Rights:

Article 16 (the right to conclude contracts that do not infringe on the rights of consumers of services; prohibition of imposing additional services and the right of the consumer not to pay for imposed services);

Articles 8-10 (the right to reliable information about services, their provider and the conditions for their purchase); 
 - Article 15 (consumer right to compensation moral damage

caused by the executor’s violation of the consumer’s rights, and in particular by publicly unjustified declaration of the consumer as a debtor, as is the case in the case under consideration). 
 Consideration in court of disputes between participants in housing relations must take place with mandatory judicial review

compliance by legal entities with regulatory legal acts: Decree of the Government of the Russian Federation of August 13, 2006 N 491 “On approval of the Content Rules common property

in an apartment building and the Rules for changing the amount of payment for the maintenance and repair of residential premises in the event of the provision of services and performance of work on the management, maintenance and repair of common property in an apartment building of inadequate quality and (or) with interruptions exceeding the established duration",

Resolution of the Government of the Russian Federation of September 23, 2010 N 731 “On approval of the standard for information disclosure by organizations operating in the field of management of apartment buildings”,

Decree of the Government of the Russian Federation of May 6, 2011 N 354 "On the provision of utility services to owners and users of premises in apartment buildings and residential buildings." All listed regulatory legal acts

At the same time, one should proceed from the fact that Part 2 of Article 1 of the Code of Civil Procedure of the Russian Federation provides: “If an international treaty of the Russian Federation establishes rules of civil proceedings other than those provided for by law, the rules of the international treaty are applied.” Therefore, before resolving the dispute on the merits, it is necessary to check the compliance of the listed norms of domestic legislation with a view to their compliance

i) paragraph 1 of Article 8 of the Convention of November 4, 1950 (Rome) for the Protection of Human Rights and Fundamental Freedoms - in terms of my right to respect for private life, which excludes the public declaration of me as a debtor in the absence of any outstanding obligations. This article (clause 2) imposes a ban on interference from outside government agencies in the exercise of this right, except such interference as is provided by law and is necessary in a democratic society in the interests of state security and public safety, the economic welfare of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. By accepting an unfounded claim for consideration, this requirement is violated.

ii) Art. 1 of Optional Protocol No. 1 of March 20, 1952 to the Convention for the Protection of Human Rights and Fundamental Freedoms - regarding my right of ownership of cash. In accordance with the practice of the European Court of Human Rights, the cost of housing maintenance costs is “property” within the meaning of Article 1 of Protocol No. 1 to the Convention, since it is its object (Judgment in the Ambruosiv.Itali case; 10.19.2000, par. 20). The principle of respect for property is enshrined in numerous decisions of the European Court, in particular in the case of James and Olhersv. UnifiedKingdom; 02/21/1986). By filing a counterclaim against illegal actions... I protect my property from attacks on it by unauthorized persons.

1. Evidence of violation of housing rights in terms of pricing

From the published estimate of income and expenses of the HOA on the official website HYPERLINK (Appendix No. 1) it follows that according to the price of payment for the maintenance and repair of common property was set for the next year in the amount of 23 rubles per square meter. However, no justification was given

But according to the law, pricing for the maintenance and repair of common property is formed in a different order: according to Clause 3 Part 1 Article 137 Housing Code of the Russian Federation, the amount of payment for services rendered and work on the maintenance and repair of the common property of the house is accepted not in the form of a price per unit area, but in the form of a series of sequential operations determined general requirement- based on the accepted annual estimate of income and expenses:

“The homeowners’ association has the right: ... to establish, on the basis of the adopted estimate of income and expenses for the year of the partnership, the amounts of payments and contributions for each owner of premises in an apartment building in accordance with his share in the common right ownership of common property in an apartment building"

The requirement of the law to establish the amount of fees BASED on the estimate of income and expenses means that first, as a “basis”, the ESTIMATE of income and expenses is approved - and only after this stage the amount of mandatory payments and contributions is established. If the amount of payment is accepted in a different manner - not on the basis of estimates of income and expenses - such actions are qualified as insignificant, without legal consequences due to being contrary to the law.

2. Violations of the procedure for approving estimates

The law stipulates that the estimate of income and expenses for the year must be considered at a meeting of the board: “The responsibilities of the board of a homeowners’ association include: ... drawing up estimates of income and expenses for the corresponding year of the partnership and reports on financial activities, presenting them to the general meeting of members of the partnership for approval" (Clause 3 of Article 148 of the RF Housing Code). This means that the general meeting must be presented with the estimate previously considered at the board meeting. The absence of minutes of the board meeting with the question "drawing up an estimate of income and expenses for year" indicates a violation by the board of its duties. The General Meeting does not have the right to consider the issue of the ESTIMATE if a) the board did not consider the estimate and b) did not decide to bring such an issue to the General Meeting.

3. Inadmissibility of accepting estimates in the absence of a list

The law provides that the General Meeting approves the annual plan for the maintenance and repair of common property in an apartment building and a report on the implementation of such a plan (clause 8, part 2, article 145 of the Housing Code of the Russian Federation). Rules for the maintenance of common property..., approved. Decree of the Government of the Russian Federation of August 13, 2006 No. 491. Paragraph 35 of the “Rules...” defines: “the amount of fees for the maintenance and repair of residential premises and the amount of mandatory payments and (or) contributions associated with the payment of expenses for the maintenance and repair of common property must be proportionate approved list, volume and quality of services and work", and in paragraph 17: "The owners of premises are required to approve at a general meeting a list of services and works, the conditions for their provision and implementation, as well as the amount of their financing." The volume of services depends on the list of services (works) and the conditions for their provision (performance). works). The meeting - and no one else! - decides what volume of services (work) it agrees to transfer to the management organization. In the absence of such a decision, the right to issue invoices for services rendered or work performed does not arise.

4. Violation of legal requirements for the acceptance of work related to the maintenance and repair of common property

According to Part 2 of Art. 157 of the Housing Code of the Russian Federation The Government has the right to establish Rules regulating certain aspects of the legal relationship between performers and consumers of housing and communal services.

"Rules for the maintenance of common property...", approved. Decree of the Government of the Russian Federation dated August 13, 2006 No. 491 provides for inspections of common property (clause 13); in this case, as stated in paragraph 14

"The results of the inspection of common property are documented inspection act a, which is the basis for acceptance by the owners of the premises or responsible persons decisions on the compliance or non-compliance of the inspected common property (elements of common property) with the requirements of the legislation of the Russian Federation, the requirements for ensuring the safety of citizens, as well as on the measures (events) necessary to eliminate identified defects (malfunctions, damages).

Only if there are instructions in the Inspection Report regarding the full compliance of the inspected common property with the requirements of the law, the right to issue invoices for payment for services (work) provided arises. The absence of these Acts deprives the plaintiff of the right to make any claims regarding the maintenance of common property in general.

This norm is practically duplicated in Art. 37 of the Law on the Protection of Consumer Rights: “the consumer is obliged to pay for the service rendered in full by the contractor after its acceptance by the consumer"

In the absence of performance acceptance certificates, there are no grounds for presenting any invoices for payment of unaccepted volumes of performance and any rights to legal protection from incomplete payment of such bills

5. Violation of legal requirements regarding determining the volume of work and services performed

According to the "Rules for the provision utilities...." in payment document must be specified volume (quantity) of utility resources and wastewater discharged during the billing period. In violation of the requirements of the by-law, the Plaintiff arbitrarily presents receipts, from which it is impossible to see the volume of services consumed. Residents have an obligation to pay utility bills. But only in the volumes of actual consumption. The consumer is not obliged to pay for virtual (fictitious) volumes of services. Equally, he is not obliged to pay unreasonable amounts for arbitrarily drawn up payment documents that do not contain information prescribed by law or regulations. The plaintiff provided no evidence to the contrary. .

According to the "Rules for the provision of public services..." the consumer has the right to demand that the contractor take actions to commission an installed individual, common (apartment) or room metering device that meets the requirements of the legislation of the Russian Federation on ensuring the uniformity of measurements, even if such a metering device is not functionality differs from the collective (common house) metering device with which an apartment building is equipped, no later than the month following the day of its installation, and also require calculations of the amount of payment for utilities based on the readings of the commissioned metering device, starting from the 1st day of the month , following the month of commissioning of the metering device (clause 33 paragraphs "i"). Meanwhile, the defendant is evading payments for utilities in strict accordance with the readings of the common house and apartment metering devices. The initial claim does not indicate the readings of apartment metering devices.

Thus, the claims of the original claim should be considered not based on meter readings, most likely based on fictitious consumption volumes

6. Right to suspend payment

Payment of invoices in clear violation of the requirements for the procedure for pricing, correct accounting of volumes and compliance with the procedure for accepting execution within the meaning of civil law is considered an imprudent action, while the law requires caution and caution in any transactions. Meanwhile, an indispensable condition for protecting the legitimate interests of participants in business transactions is an agreement on the transaction price specified in the contract.

In accordance with part 3 art. 405 and h. 1 tbsp. 406 Civil Code of the Russian Federation the debtor is not considered to be in arrears in fulfilling an obligation until the obligation cannot be fulfilled due to the creditor’s delay, including due to the creditor’s failure to perform actions provided for by law, before the execution of which the debtor could not fulfill his obligation.

In this case, there is a temporary suspension of payment until the requirements of the law are met in terms of setting the price of services, recording apartment meter readings and organizing the acceptance of performance in accordance with the requirements of the law.

Such actions fully comply with the conditions of proportionality of measures of self-defense of law specified in Art. 14 Civil Code of the Russian Federation: the consumer has the right to suspend payment until violations of the law are eliminated due to the creditor’s delay caused by a violation of the pricing procedure.

7. Regarding the amount of compensation and fine

In accordance with Art. 15 of the Law on the Protection of Consumer Rights, the plaintiff is entitled to compensation for moral damage caused. In accordance with Part 1 of Art. 1099 of the Civil Code of the Russian Federation, the grounds and amount of compensation to a citizen for moral damage are determined by the rules provided for by Chapter 59 of the Civil Code of the Russian Federation and Article 151 of this Code. When determining the amount of compensation for moral damage, the court takes into account the degree of guilt of the offender and other circumstances worthy of attention. The court must also take into account the degree of physical and mental suffering associated with the individual characteristics of the person who suffered harm.

By virtue of Article 1101 of the Civil Code of the Russian Federation compensation for moral damage is carried out in monetary form. The amount of compensation for moral damage is determined by the court depending on the nature of the physical and moral suffering caused to the victim, as well as the degree of guilt of the harm-doer in cases where guilt is the basis for compensation for harm.

We believe that only by paying 200 (two hundred thousand) rubles will the defendant be able to compensate for the moral damage caused to the plaintiff.

In accordance with Part 6 of Art. 13 of the Law on the Protection of Consumer Rights, the plaintiff has the right to recover a fine in the amount of 50 percent of the amount awarded by the court in favor of the consumer

8. The right to exemption from payment of state duty

In accordance with paragraph 3 of Art. 17 of the Law “On Protection of Consumer Rights” plaintiffs are exempt from paying state duty.

Based on the above, guided by art. 21, 23, 53 of the Constitution of the Russian Federation, articles 137, 138, 143.1, 161, 162, 163.1 of the Housing Code of the Russian Federation; articles 8, 14, 151-152, 307, 308, 405, 406, 1099, 1101 of the Civil Code of the Russian Federation, articles 8-10, 13-16 of the Law on the Protection of Consumer Rights, articles 131-132, 137-138 of the Civil Procedure Code of the Russian Federation,

1) Due to the nullity of the unilateral transaction in the form of setting a price of 23 rubles per sq. m for the service of maintenance and repair of common property, apply the consequences of the invalidity of the transaction in the form of recognizing the amount of payment for the maintenance and repair of common property as unknown since May 2009 Until now

2) Due to the insignificance of a unilateral transaction in the form of assigning volumes of consumption of utilities without taking into account the readings of the apartment meter, apply the consequences of the invalidity of the transaction in the form of recognizing the amount of payment for utilities as unknown since May 2009 Until now

3) Recognize as not accepted all volumes of work and services, starting from ... to the present, due to the lack of acceptance certificates

4) To recover from the Universitet Homeowners Association in favor of the plaintiff compensation for moral damage in the amount of 200 thousand rubles and a fine in the amount of 100 thousand rubles - 50% of the awarded amount of compensation

5) Recognize as legitimate the plaintiff’s right to suspend payment for the maintenance and repair of premises until violations of housing rights are eliminated in terms of determining the price for these services in the manner prescribed by law

Applications:

You can file a claim when the actions of the HOA have following signs improper performance of duties that violate the rights of residents:

1. Not performing or improper execution responsibilities of the management company (MC), resulting in material damage.
2. Actions of the management board that led to a deterioration in the living conditions of residents of an apartment building.
3. Unlawful increase in payment for HOA services, collection of payments not authorized by law and general meeting residents.
4. Delaying deadlines for carrying out overhaul in violation of the law.
5. Non-transparency of payments, lack of systematic planned reporting.
6. Other violations that infringe on the rights of residents.

Important! If you suspect theft, you should not go to court, but to the prosecutor's office with a complaint. Based on the results of the inspection, the prosecutor's office decides to initiate legal proceedings.

If a claim is filed, then Claimants from among tenants can rely on the following sources of legislation:

• Articles 63, 91.1, 162 of the RF Housing Code;
• Articles 17, 29 of the Law “On Protection of Consumer Rights”.

Article 63 of the Housing Code of the Russian Federation. Contract form social hiring residential premises

1. A social tenancy agreement for residential premises is concluded in writing on the basis of a decision to provide residential premises to a housing stock for social use.
2. A standard social rental agreement for residential premises is approved by the Government of the Russian Federation.

You must first use other ways to resolve the issue out of court. For example, a complaint to Rospotrebnadzor, to the State Housing Inspectorate (GZHI).

What is it and what is its content?

The statement of claim must contain all essential information related to the case:

• name of the court;
• information about the justice of the peace, the number of his precinct;
• about the plaintiff (of which there may be several in this case);
• the defendant, who is considered to be the chairman of the board representing this entity.

This information is given in a “header” at the top of the sheet. The main text consists of three parts:

• "body" of the document;
• pleading part;
• final part.

In conclusion, the signatures of the plaintiff are given, according to the number of applicants and a list of applications. The filing date is set.

1. About the actual violation of property and civil rights of claimants by the board of the HOA.
2. That the applicants used other possibilities to solve the pressing problem, but it cannot be resolved otherwise than through the court.
3. A request to the court in the form of formulations through the recognition of which violated rights can be restored.

Reference! The defendant will be a legal entity (HOA), which must be indicated in the statement of claim; also enter information about its chairman.

How to compose?

The form of the document must comply with the standards specified in Article 131 of the Code of Civil Procedure of the Russian Federation. The application may be typed or written in blue or purple ink in legible handwriting. Sheet format – A-4.

The “cap” is located “in a column” on the right top corner, as stated above. Below it, in the middle of the sheet, the name of the document is indicated: “Statement of Claim.” The following is the main text, consisting of parts:

• introductory;
• basic;
• pleading.

In the introductory part, indicate the address of the house whose residents went to court and the name of the HOA that serves it. The reasons for residence and the status of the owner or responsible tenant under the social tenancy agreement are also indicated here. For example: I, Chechetkina Lidiya Vasilievna, living at the address (specify) in one-room apartment, which I have owned as an owner since November 2003. In February 2004, I signed a service agreement with the defendant.

The main part indicates the violated rights of the plaintiff. For example:

According to the agreement, the Homeowners Association "Zhilishchnik" assumed responsible management apartment building, located at the address (specify) where I live. The contract states that the defendant undertakes to carry out major repairs once every 5 years in accordance with the regulations established by law.

However, such repairs have not been carried out for 8 years, and therefore the roof of the house has become unusable. During heavy rains it leaks and water systematically enters my apartment, causing damage to the living space I occupy.

In the pleading part, it is necessary to formulate an actual request, which is the meaning of initiating legal proceedings. For example:

I ask you to make a decision to force the Homeowners Association “Zhilishchnik” to carry out major repairs in the house.

Finally, a handwritten signature and date are placed. The list provides a list of attachments to the statement of claim.

What is the amount of the state duty?

When filing a statement of claim, in accordance with the provisions of Article 333.33 of the Tax Code of the Russian Federation, a state fee is paid. For ordinary claims related to the restoration of rights, it is 300 rubles.

Attention! A copy of the payment of the fee is attached to the application; without its submission, the statement of claim will not be accepted for production.

Where to submit?

The claim is filed in accordance with the provisions of Article 28 of the Code of Civil Procedure of the Russian Federation in a court of general jurisdiction of the first instance, that is, in the district court at the location of the residential building that serves Management Company, acting as a defendant.

Article 28 of the Code of Civil Procedure of the Russian Federation. Filing a claim at the place of residence or location of the defendant

The claim is brought to the court at the place of residence of the defendant. A claim against an organization is filed in court at the location of the organization.

What documentation is included?

The attachment is a package of documentation that confirms the validity of the claim and acts as evidence in a civil case in accordance with the provisions of Article 132 of the Civil Code of the Russian Federation. The applicant's passport is required, if a representative is acting - a notarized power of attorney. Besides all evidence that can confirm what is stated in the claim is collected. For example:

• acts on roof leaks (other violations);
• opinions of an independent expert;
• a copy of the contract indicating the unfulfilled obligation;
• proof that it was not fulfilled.

Photos and video materials, written and oral testimony can be used as evidence.

It is imperative to provide evidence that the defendant has been contacted about the issue more than once.

Reference! If the plaintiff applied to the State Housing Property Inspectorate, then an extract from this authority should be attached.

How to submit documents?

Submission of documents can be carried out:

• at a personal reception with a magistrate;
• through the office of the district court;
• by registered mail by Russian Post.

The statement of claim must be prepared in advance, and a package of documentation must also be on hand. Make photocopies of your passport, which will be certified when submitting your application. The application with attachments is accepted against signature.

The issue of accepting or rejecting this claim is considered within 5 days. If it is accepted, legal proceedings are initiated. And if it is rejected, a reasoned statement is given with the reasons for the refusal. It will indicate an algorithm for further actions on this issue.

Conclusion

A claim against an HOA is filed after a pre-trial procedure. Materials on the merits of the case are collected and a statement of claim is written. This package is submitted to the district court after paying the state fee.

The collector module MKT SOTIS-Unit is designed to connect consumers to the UUTEM-E metering unit on the floor, control the distribution of coolant between consumers and organize individual metering of heat energy consumption. Depending on the modification, the module can also perform the functions of conditional regulation (limitation) of coolant flow in apartment heating circuits or precise hydraulic balancing of apartment heating circuits.

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The collector module can be installed on the pipeline in any of two mounting positions: horizontal or vertical.

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