суббота, 3 ноября 2012 г.

Sword law stronger than law

Litigation, usually heavily trailing behind, perhaps, every developer of Saint Petersburg, reflects difficult relations between construction companies and their clients. A lot of mutual claims are usually accumulated there. Purchasers of real estate argue on quality of work, in particular, on supplying the house with all necessary communications. Developers undertake attempts to interfere in the work of condominiums and other organizational structures that accompany life of separately taken residential complex. In the tug of war, parties usually don't shun a seamy side as well. But we are interested in only one particular aspect of the issue, namely - the judiciary.

By default, a company usually overweights in a judicial confrontation between a large and rather well-to-do legal body and citizens. Many various resources are used here - from a direct bribery till penetration of “own” lawyers to the judicial system. Residents can oppose to it with only own enthusiasm, collective, but not less private, and not the biggest money, and, at last, knowledge of the law.

 A long-running story of the JSC Stroitelny trest is one of the most classic examples of the war of residents and their developer. In open sources, the company is permanently mentioned with the prefix of the leader of brick housing construction in St. Petersburg. For 20 years of its existence, this leader, under control of Evgeny Rezvov and Beslan Bersirov, has put into operation 68 objects with a total area of 1.7 million square meters.

It is easy to see that there are 25 thousand square meters of active area at the average per object. This is an area of ​​a decent housing complex, so, Stroitelny trest specializes exactly in large projects and it is a rather big office itself. It is easy to see on an official site of Stroitelny trest. However, behind the glossy luster and reputation of a construction colossus which “always commissions all the objects on schedule”, the same predatory habits are hidden.


Uncomfortable Cozy home (literally Uyutny dom)

The situation around a huge residential complex at Kolomyazhsky Ave, 15, building 2 has become the most notorious and sensational for the last decade. Going up to the sky, the airy skyscraper, built in 2003, was in fact a trap for homeowners at the whim of the directors of Stroitelny Trest. The more information about still newer temptations falling upon the heads of the residents of the complex repeatedly surfaced in the media: starting from building of a two-storey parking with incredibly expensive parking spaces right in the center of the courtyard (and contrary to the original plan of the site development) and ending with a unilateral violation of the right of the residents to co-ownership of the adjacent territory with the stalls in the courtyard.

But in addition to the problems of general nature, the Stroitelny Trest puzzled owners in another way too. The tangled skein of mutual claims, which led, according to the apt expression of journalists, to “the revolution of homeowners”, began coming untwisted just with one of these judicial attacks. Thus, on December 25, 2009, MC Uyutny dom Kolomyazhsky JSC created by Rezvov and Bersirov filed up a statement of claim to the Arbitration Court of Saint Petersburg and Leningrad region about recovery of payments for maintenance and use of common property from several owners of non-residential premises in the house.

It requires a short explanation about Uyutny dom. In one of the many documents accompanying the judicial war with the Stroitelny trest, one of the owners of premises on Kolomyazhsky, 15, Evgeniy Taranov, characterized the relationship of the developers and the owners of the property in the following way.

 “This company was not chosen by the residents, just as they didn’t agree the way of the house management - the management company. This company was imposed to the residents by the developer and it was under the threat of consequences adverse for them: the keys weren’t given out, the basic sale-and-purchase agreement (on the basis of the preliminary one) wasn’t concluded, the documents weren’t given on registration, and etc.

I believe that the management company, created by the developer, used some judicial mechanisms to achieve its illegal purposes, and it is now trying to court decision to admit that it alone legally disposes of the common property of the owners of the premises in the apartment building, that it on a legal basis uncontrollably uses money obtained from the disposition of the common property and collected from the residents of the house, that it lawfully discharges the owners of premises in the house of the management of the apartment house”.

 That is, the management company initially came under very questionable circumstances. However, for some reason it didn’t call attention of the law enforcement bodies up to a certain time. However, Uyutny dom with its shaky legitimacy did not seem convincing in arguing to the judge Y.V. Zolotareva that left the statement of Uyutny dom without movement.

There was a curious further. On February 12, 2010, MC Uyutny dom Kolomyazhsky JSC filed the petition to the arbitration court about return of the application. It was satisfied by the arbitration court on February 15, 2010. Such a claim for the refund of the claim of the plaintiff means a desire to abandon the legal action. Having established this fact, judge Zolotareva took out the definition about returning of the statement of claim.

 However, two weeks later, on February 27, 2010, Uyutny dom filed the same statement in the arbitration courts and that time it came at the newly appointed young judge Mikhail Suvorov who no longer saw the grounds for leaving the application without movement and immediately accepted for processing.

There is one legal subtlety. Uyutny dom didn’t eliminate all claim shortcomings within the initial case, but withdrew it and filed again. That was a smart tactics not to wait for the return of the statement of claim but exactly to withdraw the own lawsuit in the day when the judge issued the definition of the return of the statement. These seemingly meaningless bodily motions successfully hid the base for the leaving the statement of claim without movement by the judge Zolotareva.

 And that was the trick the director of Uyutny dom Olga Martynovskaya, who had graduated with honors from the faculty of law of Saint Petersburg State University, counted on. Really, if at adoption of the statement of claim from the company calling itself “managing” it becomes clear that a minutes of the meeting of the owners of the premises of the apartment building on the choice of a method of managing the house and the plaintiff's choice of the management company doesn’t exist, the court will return the claim due to the lack of the proofs confirming the right to sue the claim. This will be added to the relevant protocols and, as an established fact, can strongly prevent further plans of the Messrs. developers who proclaimed himself as the managers as well.

Olga Martynovskaya wasn't mistaken in her smart tactics. Judge Suvorov, when adopting the statement to proceedings, “didn’t notice” the things that previously was immediately evident to a more experienced Zolotareva. To one of the defendants in the lawsuit by Martynovskaya, the aforementioned Evgeniy Taranov, the motives of the strange decisions of the judge Suvorov seemed to do less with inexperience but with criminal negligence based on bias. In this connection, Taranov issued a statement to the Investigative Committee of Russia addressed to Alexander Bastrykin.

Really, the absurdities in the procedure of the litigation sounded by Taranov would appear to be very funny if they had not caused gloomy reflections. First of all, at the preliminary hearing appointed on April 16,2010, the defendant, represented by the Kolomyazhsky 15 Condominium, demanded from Uyutny dom the confirmations of competency “to operate” at least something within the housing complex. The judge Suvorov agreed with this requirement... and safely «forgot» to make it in the definition on the continuance of the hearings on May 14, 2010. Thus, this quite legal requirement simply vanished during the break between the hearings. At the same time Suvorov rejected but equally reasonable request for the amount of the plaintiff's claims.

 But it is only child’s play in comparison with the absurd appearance of the representatives of at once two Chairmen of the Kolomyazhsky 15 Condominium in the court on May 14. One was from Svetlana Sklar chosen by the meeting of the owners, another, what is significant, from Beslan Bersirov. Why on earth would the Deputy of the General Director of Stroitelny Trest need to go to the condominium management? In general, it is not a mystery. Too many material issues were exactly depended on the decisions of the condominium, for example, the provision of the territories under the same parking lot. The question is: who is the real Chairman?


Comrades of Chairman

 The statement addressed to the public prosecutor of Saint Petersburg Sergey Petrovich Zaitsev of October 3, 2010, sent by Svetlana Sklar, allows to get into background of the collision with the two Chairmen. It is worthy of a literal, even partial, citation.

“On January 30, 2006, General Director of Stroitelny Trest E.G. Rezvov, his deputy B.R. Bersirov and a certain citizen T.N. Lyutinskaya decided to set up the Kolomyazhsky 15 Condominium Partnership in the newly built apartment building. At the same meeting, E.G. Rezvov, B.R. Bersirov and T.N. Lyutinskaya elected themselves to the board of the condominium partnership. Originally, T.N. Lyutinskaya was elected chairman of the condominium partnership. Then, in May 23, 2006, B.R. Bersirov was elected chairman”.

During the whole time of the existence of the condominium partnership, under various pretexts, the persons mentioned above avoided admission of the real owners to the membership of the condominium partnership of the owners of the premises in the apartment (somewhat about 1300 flats) house refusing to receive any correspondence and stopping any attempts of the residents to get some information about the house common property disposal or to learn about the expenditure of the money collected from the residents, etc.

 Perhaps, to ultimately remove the owners from the management of the house, Bersirov, Rezvov, and Lyutinskaya decided to liquidate the condominium partnership, and since that they had been refusing any attempt of the residents to join the condominium partnership under the pretext of the liquidation of the latter.O.A. Martinovskaya, who is also the general director of the Uyutny dom Kolomyajsky management company created by E.G. Rezvov and B.R. Bersirov, was appointed the bankruptcy commissioner.

 Here is a very important fact that neither of the persons stated above is the owner of the house on Kolomyajsky 15. And Sklyar highlights it specially, stressing that in such a way all the decisions undertaken by the self-constituted condominium partnership are juristically miserable. However, how did the Uyutny dom Kolomyajsky MC appear in this scheme?

 “On the same day, it was decided to make an agreement between the Kolomyajsky 15 condominium partnership and the Uyutny dom MC. It was for the managment of the apartment building and transfer of all powers of the condominium partnership for the management of the house including the authority to manage the account”, Svetlana Sklar writes in her statement. Indeed, such a transformation would be possible if the condominium partnership was legitimate body of management. But where nothing is, nothing can be had.

 However the violation was not the only fact of the illegitimacy of the condominium partnership “named after Stroytelny trest” and of its decisions. The very handover of authority occurred with gross law violation.


 According to Paragraph 3 of Art. 161 of the Housing Code of Russia, the choice of a method of management of an apartment house is the only responsibility of the general meeting of the owners of the premises in the apartment house. According to Paragraph 1 of Art. 137 of the Housing Code of Russia, condominium partnership are given the right to conclude contracts on management of their apartment house, but in accordance with working law. Under the current law, by P.3. of Art.137 of the Housing Code of Russia, such a conclusion of a contract is possible under conditions of a choice of a method of management and management company by a general meeting of owners of premises. However, the general meeting of the owners of the premises in the house did not make a decision on choosing a way of management of the house by the management company”.

Thus, forming a threesome hastily collected condominium partnership, the directorate of Stroitelny Trest in the same way, behind the scenes, delegated the power to the management company that was created, as we already know, again by the representatives of the developer. The «extra» possible participants, who were capable of making decisions not in favor of the developers, were surely cut off from the management of the housing issues. The Uyutny dom  (read: Rezvov and Bersirov) received “the key of the apartment where the money is” (quoted, I. Ilf, E. Petrov, The Twelve Chairs book) in the form of a “right of disposal of the common property of the apartment buildings and uncontrolled disposal of the money received from renting of the common property of the house to third parties”. Of course, the state of liquidation was too long. That situation suited all the participants of the fraud. Because during that time they managed to divide the land plot on which there was the apartment complex and started a brisk commerce. For example, the parking spaces were sold to a third party that had been created, by the way, at the expense of the shareholders and related to inalienable land fund of general disposal by all the residents.

According to Sklar, the actions of developers form “an offense under Part 2 of Article 159 of the Criminal Code of the Russian Federation – ‘fraud committed by a group of persons’, i.e., acquisition of another's property by fraud or breach of trust of citizens – owners of premises in an apartment building”.

The liquidation of the condominium partnership was in suspense until January 30, 2010. On that day, the initiative group of residents who were openly gotten at the clutter that was reigned in the yard and surrounding areas and, above all, the direct attack by the Uyutny dom on the rights of the owners convened a general meeting of the owners of the premises. The residents submitted the request for inclusion to the condominium partnership. There were immediately adopted the decisions on the re-election of the liquidator - Svetlana Sklar was approved there, on the withdrawal from the state of liquidation, and, finally, on the re-election of the Board and the election of a new Chairman of the condominium partnership’s Board. On one of the following meetings, on February 10th, Svetlana Sklar was elected chairman as well.

She specifically states the fact that the January meeting was attended by “more than 60 owners of the premises in this house”. Is it a sufficient number for the required quorum? But the numbering of the apartments in the residential complex in the Kolomyajsky Ave comes up to four-digit numbers. The answer is simple, and that was the very specific imaginary violation of the provisions of the Housing Code to which Bersirov refered in court later trying to prove the legal nullity of the decisions of the reconstituted condominium partnership. The nicety, however, is that the developer had no right to challenge the decision of the general meeting. Consequently, it couldn’t be a matter of contention on his part. As they say, that was not your war, sir.

Of course, Bersirov perfectly understood that even if he made some not very appropriate steps as a result of the “mutiny aboard”. However, he was the one who was found in the position of Chairman of the condominium partnership in the court. By May 2010, he was not taken aback by the purchase of housing in the house built by his company. Because he initially could not be a member of the Board of the condominium partnership. In general, he couldn’t be a member of a partnership at all. However, Svetlana Sklar found that on March 24, 2010, Bersirov had filed in the request to the 15th Interdictrict Inspectorate of the Federal Tax Service (IIFSC) of Saint Petersburg for amending new records to the Uniform State Register of Legal Entities. According to it, the developer declared himself chairman of the condominium partnership.

The condominium partnership had no meetings about it. It took time out for the period from February 10. No one was informed, no one was invited anywhere. And it gave Taranov a handle to doubt the validity of all possible false meetings of the condominium partnership convened in the period from February 9 to March 24, 2010. He filed in a corresponding claim to the Petrogradsky district court in order to “settle hash” the decisions possibly generated by the alleged fraudsters of a virtual condominium partnership. However, on September 15 of that year, representatives of Bersirov in court stated that there had been no meetings of the condominium partnership at the appointed period, and it allowed doubting the legitimacy of the “self-coronation”.

But most of all, Svetlana Sklar angered the simple fact that the Bersirov’s statement to the IIFTS was sealed by “her” condominium partnership. The seal existed in the amount of one (1) piece and had been ordered specifically for the reanimated condominium partnership. It was significantly different from the old one, operating by Bersirov before “the liquidation process”, and it kept in the safe to which only Sklar herself had access. This was the basis for the new chairman to accuse Bersirov of forgery of the seal.

And here is a question:  what kind of condominium partnership Bersirov manages if he signed some documents with the stamp of the old partnership where the three board members were, but he preferred the new stamp to sign documents on his election of the Chairman? In addition, the uncertainty of the situation with the legitimacy is created confusion as well. Really, if the general meeting of homeowners did not have a quorum, then, it wouldn’t make any sense to try to lead it. It was enough just to stand stubbornly in the court, rejecting any possibility of the legitimacy of the existence of the “new” condominium partnership. But that was not enough: if Bersirov was right and the meeting on January 30 had been a fake, then the Uyutny dom still remained the only body managing the apartment complex, and so there he had nothing to be chairman of.

However, the absurdity of the situation was not only in that. Evgeny Rezvov, General Director of Stroitelny Trest suddenly appeared the owner of the housing in the complex. In accordance with that, on April 15, 2010, he filed a lawsuit in the same Petrogradsky district court against the condominium partnership where he specified the ineligibility of the decision dated January 30 and the infringement of his rights of an owner and - in such a state - a member of the “true” condominium partnership.

But Sklar parried this claim by the simple fact that Rezvov appeared a share participant of the construction with the right for the apartment. And that apartment, according all extracts from all registries, actually belonged to an absolutely other person (to Michael Risin). Another apartment, on which Messrs from the Stroitelny Trest pretended to possess, actually didn’t belong to them personally, but it was on the balance of the company headed by them. So, if some people could have challenged the decisions taken on January 30, 2010, they were definitely not Bersirov and Rezvov.


Twice blind Justice

As we know, on April 16, 2010, during the preliminary hearing on the case of A56-9917/2010, Judge Suvorov favorably reacted to the defendant's request and demanded from the plaintiff Olga Martynovskaya the minutes of the general meeting of the owners of premises on a choice of a way of management of the housing complex. A (non-existent) protocol on a choice of the MC ‘Uyutny dom’ Kolomyazhsky JSC as the management company-liquidator also came in his vision. On this occasion, the Kolomyazhsky 15 condominium partnership was brought to the case as well.

The staff lawyer of the ‘Uyutny dom’ Kolomyazhsky Kolomyazhsky Yulia Yakovleva frankly stated that there was no such protocols “in nature”. The Uyutny dom managed the complex only on the basis of the munutes made by the shareholders of Stroitelny Trest Rezvov and Bersirov.

In a modified order (the court decision of May 14, 2010), the court ordered the plaintiff to provide a minutes of the meeting of shareholders of the Stroitelny trest JSC and set out the legal position on choosing the method of management of the apartment house taking into account the presence of the  homeowners’ partnership of the house. It was absolutely clear that the two governing body could not legally get along under the same roof.

The judge in this case clearly indicated that in the absence of the minutes of the homeowners on choosing the way of management and on choosing the Uyutny dom as the management company, he saw no reason to satisfy the lawsuit filed by the improper plaintiff.

 The presence in the courtroom of the two representatives of the same condominium partnership under the powers of the attorneys issued by the different chairmen forced the judge Suvorov to apply for evidence of the authority of the individuals who had issued the powers of attorneys on behalf of the condominium partnership. That request was especially critical for the party of the Stroitelny Trest as earlier the Arbitration Court of Saint Petersburg and the Leningrad region had already stated – in the case A56-15175/2010 - a critical relation to the position of a representative of Bersirov, Terekhova, who was an employee of the Stroitelny trest JSC at the same time.

 The staff lawyer Yakovleva was absent at the meeting of June 18, 2010. And here the most interesting things began, because she was replaced by a certain Natalia Veresova who was surprisingly a full namesake of the Deputy Chairman of the Kolpino district court of Saint-Petersburg. 

And from that moment the judge Suvorov’s behavior had changed dramatically. He was no longer interested in the case file and in the credentials of the representatives of the parties, although the representative of the condominium partnership from Sklar renewed his request for the authority of Bersirov’s right to issue a power of attorney on behalf of the condominium partnership. In that regard, Natalia Veresova stated that she didn’t consider it necessary to provide any evidence beyond the ones attached to the claim.

Then Veresova demonstratively ignored a further definition of the judge on reclamation of the evidence. As a result, the inexperienced judge Suvorov came to the point that the evidence, obtained by the court demand before, was not actually required for the case, as it turned out. In fact, the authority of Bersirov to appoint representatives, and therefore, implicitly, the legitimacy of “his” condominium partnership, was taken on trust. Suvorov also ignored the previous criticisms of the Arbitration Court on the possibility of Terekhova to represent his employer in court.

 From the moment of Veresova's introduction, the newly appointed judge began to submit to some procedural rules known only to him. None of the evidence presented by the defendants was not considered by him, the application were not considered or rejected without any reason. The declared petition for participation in the case of one of the tenant of the house, Konstantin Chernakov, was considered by the judge only two months later and only after a complaint to the chairman of the arbitral tribunal. During that time, the “managing” company Uyutny dom made the life of the unfortunate tenant very uncomfortable to cut off his electricity as a warning.

The laudable zeal of the judge Suvorov, who tried to prevent postponing the examination of the case and make a decision as soon as possible, led to repeated breaks which term exceeded all the limits established by the Administrative Procedure Legislation of Russia. The Administrative Procedure Legislation modestly limits the duration of one break in the framework of one same session to no more than five days. But the meeting was delayed until July then.

In this case, perhaps, the Administrative Procedure Legislation was wrong, and the drafters did not consider that there were real workers in the judiciary who were ready to work like galley slaves. That was a praiseworthy quality, as a desire to reduce consideration of the essence of the case at the expense of insignificant details. Thus, the petitions of the defendants for reclamation of evidence of the size of the declared claims were not even considered by the judge.

Every time when the defendants, including Taranov, advanced another petition in order to destroy the process cruelly, the unflappable Natalia Veresova claimed that she had nothing to add to the statement of claim. Then the judge immediately threw to stamp decisions without even listening to the representatives of the defendants.

The representative of the “virtual” condominium partnership (of Terekhov) behaved as haughtily as the judge. He entirely accepted the plaintiff’s side and ignored the court decisions for the reclamation of evidence to confirm the authority of the person who had issued to him the power of attorney.

So, from the time of filing the claim the plaintiff did not provide any documents, including the number called by the court. However, the initial opinion of the judge on the absence of a proper plaintiff miraculously changed to the opposite. The belief in miracles would allow us to claim divine intervention, but we do not believe in miracles. And most likely, the explanation for this metamorphosis lies in a much more pragmatic area, nothing to do with evidence and case materials, and caused by other reasons which are “outside of the procedural plane”, speaking in vague language of lawyers.

 After all, there was no even evaluation of the presented evidence in the motivation part of the decision submitted by the judge. There was nothing about the reasons for which the court had ignored the arguments of the defendants. There was no guidance on the norms of the law giving the plaintiff the right to sue. It remained unclear on what basis the Uyutny dom could recover any payment for use of common property to the extent permitted by the law. Suvorov, taken aback by the unexpected turn, even forgot in a hurry to somehow divide the judicial process into a preliminary stage and an actual examination. It turned out comical: the court made the decision in the framework of preparation for consideration of the case.

This “one-way street” case, which had turned out as a result, was eloquently described in the complaint of July 20, 2010 to the Saint Petersburg Qualification Commission of Judges on behalf of one of the owners, businessman Svetlana Mekhontseva. We find a final chord of the amateur performance of Suvorov in the same document. At the next “preliminary” hearing on July 7, 2010, the judge, without any justification, rejected the request of the defendants for collegial examination of the case. Meanwhile, as Mekhontseva noted, “defendants have the right to collegial examination of a case in accordance with current legislation, in view of complexity of proceedings and high importance of the trial for defendants who use the premises for commercial activities, for hundreds of renters of trading places in the commercial complex, and for owners of the residential apartment buildings who don’t elect the plaintiff as a management company of the apartment building”.

As expected, on July 14, 2010, the final meeting was completed with the satisfaction of all the claims of the plaintiff. The Uyutny dom could celebrate a victory for a while. Then some specific requirements for the entrepreneurs owning non-residential premises in Kolomyazhsky, 15 were finally detailed. Of course, the blow of maximum force fell on Evgeniy Taranov. For “debt under the contract for the management, maintenance and repairs of the apartment house” from March 1, 2008, they collected from him 5 489 238 rubles and 32 kopecks. While they took multiply lesser amounts from other “rebels” (including the Mekhontseva). In total, they covered 8.4 million rubles from five entrepreneurs.

In the court's decision, which Suvorov had been preparing a few days, the obligation of the owners to pay for the services of Uyutny dom was never doubted. There was a simple statement with indication of the relevant articles of the contract. There was nothing about legitimacy of the management company to manage.

Is there any use to remind once again the principle of Qui prodest? (“Who benefits”")? It seems that everything is clear here.


Game played up to the end

But in the case A56-9917/2010 there was one more thing, a “detail” forgotten by the judge Suvorov – a counter-claim of the businessmen who had paid services on repairing the roof in due time but then understandably required to reimburse the amount spent. Of course, compared to the claims of Uyutny dom, everything looked much more modest there. Nothing short of 90,000, really, it wasn’t serious. However, as it soon became clear, “the size really does not matter” (a slogan of a famous advert).

No one anticipated that the formal phrase which completed the decision of the arbitration court of July 14 (“The decision can be appealed to the Thirteenth Arbitration Court of Appeal within one month from the date of the decision”) would be decisive finale of the all subsequent events. The entrepreneurs did exactly as Judge Suvorov recommended. And by the end of that year, the same 13th was ready to render its decision. It is worth noting that by the time, the panel of judges had found the complaint against Suvorov to be justified.

Not the appeal was surprising to the developers and their manipulator Martynovskaya: they could easily reject it. But the threat to behold the terrible to Stroitelny Trest words in the decision of the court once again – a void transaction. It was that the director of the Stroitelny Trest tried to escape withdrawing her statement of claim against the same defendants in February of that year. Do anything, even get in an uproar, just for some circumstances of the appearance of the management company in the scheme not to surface. However, the Thirteenth became truly unfortunate for the Stroitelny Trest. In considering the circumstances of the case, as soon as any doubt of legitimacy of the ‘Uyutny dom’ Kolomyazhsky appeared, the representatives of the company managed to withdraw the case again. But there the second claim fired – a counter one.

By the time of the delivery of the decision of the 13th Arbitration Court, the litigants had already had the unprecedented decision of the same Arbitration Court of St. Petersburg and Leningrad region, but on the case A56-23426/2011. The amount of counter claims was 1 555 242 rubles and included unjustified enrichment of the management company which was not entitled to manage, in general. There was a catastrophe approaching, and the Messrs from the Stroitelny Trest hastened not to reach the final.

On December 17, 2010, the defendants led by Taranov were refused to satisfy the requirements to Uyutny dom on the grounds that the parties owed each other nothing. Literally, “the Company and the owners have no obligations to each other following out of the contract number 08/08 dated March 1, 2008, as the contract is void”. The last phrase crossed out the results of all previous victories, a very dangerous precedent was created. There was no doubt that the developers in their zeal would no longer be limited to a simple blackout of the facilities owned by Taranov, however - “the contract is void”. Now they had no right to even turn down the power switch, aside from greater tricks.

One thing remained - at any price to return the claim to the judicial proceedings: to punish, to destroy, and to finish off. Since Uyutny dom played his game out, another “management company” immediately came to light – Dohod (literally, the Income) in favor of which they wanted to withdraw cash of the entrepreneurs by a relatively honest way. At the same time the decision on the collection of sums of undue income for the period of “anarchy” on behalf of alleged victims was challenged there.

However, taken out toothpaste does not return in the tube. All the requirements of the Uyutny dom to reconsider the claims remained unsatisfied. Its cassational appeal, filed in the Federal Court of Appeals for the North-West Region, was returned on March 22. One can think that judge Tatyana Shpacheva did it with a slight smile.

 As for ill-fated contract of 2008, recognized null and void, we note that it is common for a number of similar cases of secondary legislation. Conclusion of such void contracts with the management company is not something out of the ordinary. In fact, a developer just does not give the observation sheet and the keys to the apartments to the holders until they sign a contract with the management company. At this time the developers have slipped on their own orange peel which they put to another person.


Double blow

 Relatively undisturbed parasitizing of the developers in the internal affairs of the residential complex ended on January 30, 2010. However, for a while, apart from the annoying claim by Martynovskaya, the representatives of the Striotelny Trest had no other way to defend the right to a further lawlessness in pleadings. Really, Bersirov could not legally represent the condominium partnership that was formally dismissed. Rezvov was not an offended party because he had no share in the construction and, therefore, did not own an apartment in the residential complex. All the “confirming” documents appeared later. At the beginning, to start a counter attack on the shameless tenants on the base of organizational logic was charged to Uyutny dom.

Olga Martynovskaya initiated a trial on the case A56-15175/2010 directed against the condominium partnership led by Sklar. However, in preparation for trial on the suit of Martynovskaya who had appealed the decisions of the general meeting of the condominium partnership Kolomyazhsky 15, the arbitration court judge Anna Borovaya, as well as all the other judges, expressed doubt about the validity of the right of Martynovskaya to appeal to arbitration with this claim. Again, such a right didn’t automatically follow from the content of the statement of claim.

However, the strange behavior was happened with this judge as well. Even in the preliminary hearing on the case, despite the lack of justification of Martynovskaya’s right to sue, the judge Borovaya didn’t satisfy the petition for the introduction in the case by the third party (Sklar) who wanted to represent the condominium partnership.

At this hearing the judge tried to issue the decision which would be equally affected the rights of both the liquidators of the condominium partnership: both Martynovskaya who was not even the owner of the premises in the house, and Sklar.

Only a timely application of the tenants of the house to the Chairman of the Arbitration Court of St. Petersburg and Leningrad region, which drew attention to the fact that the arbitration was considering the case which really was not in its jurisdiction, provided the passing of reasonable fair judicial act on termination of the case.

Then Evgeny Rezvov entered the game. On April 15, exactly a month after the meeting (which has never been, according to the certificate presented by Bersirov to the Petrogradsky District Court Judge Elena Medvedeva on January 20, 2011) of the board of the “virtual” condominium partnership (also being in the state of liquidation, according to the acts signed by the developers) on which Beslan Bersirov had been unanimously elected chairman, Rezvov, by the Petrogradsky district court, brought a legal action upon the rebels. That was a real “oil-painting”: in the related statement, Rezvov was called a member of the condominium partnership, and the defendants were – the 15th Interdistrict Inspectorate of the Federal Tax Service of St. Petersburg, which had dared to include the name of Svetlana Sklar in the register as a new chairman of the condominium partnership, and .... all the same condominium partnership Kolomyazhsky 15.The General Director of the Stroitelny Trest wasn’t confused with certain surrealism of the situation.

In that claim, Rezvov, who had found “absence of quorum” at the general meeting of the owners on January 30, however, made a ridiculous statement. “Since all the members of the condominium partnership Kolomyazhsky 15, namely: Evgeny Georgievich Rezvov, Beslan Ramazanovich Bersirov, Tatiana Nikolaevna Lyutinskaya, did not participate in the general meeting, the quorum for the meeting, established by paragraph 3 of Article 146 of the Housing Code was absent, and the quorum designated in the Protocol of February 9, 2010 is 100% was a frame-up”.

 But, again, it is clear what a quorum could be for a general meeting of owners (and not for a condominium partnership with which Rezvov so sloppy confused it). It is just unclear where the three men, claiming to be “kings of the hill”, came to the matter if by then they had transferred the power to the Uyutny dom long ago. In that claim, Rezvov didn’t yet thump his chest calling himself a homeowner. But very soon he did it.

The lawsuit had been filed by Rezvov thrice. And twice it had been returned with the reasons that the meeting of the condominium partnership didn’t affect his rights because he hadn’t been a member of the premises of the condominium partnership at the time of the meeting. But, as we have seen, the gentlemen from the Stroitelny Trest are not afraid of paradoxes. Certain persons related to the judiciary board protect their interests.


As we know, third time's a charm. The claim of Rezvov had found  its grateful judge for the third time. There was Sergei Kovalev, who accepted it for processing. Certainly, the interests of Rezvov were represented by the same Natalia Veresova, and the actions of the judge Kovalev, just as in the case with the arbitration proceedings by Suvorov, were subordinate to the very mysterious logic.

The Deputy Chairman of the Petrogradsky district court Kovalev could not have been unaware that only an owner of the premises in the house and a member of the condominium partnership had the right to appeal a decision of the general meeting of the condominium partnership. These requirements must be met simultaneously. The very existence of the right to file a claim is set by the judge at the stage of receiving the complaint. That's why Rezvov had had to leave the court twice empty-handed.

But not now. Even in the absence of proofs of Rezvov’s ownership of the premises in the apartment building, on March 28, 2011, the judge of the case 2-35/2011 issued an order to granting interim measures on the claim. Moreover, even after the request of the defendants convinced Kovalev that the plaintiff had no rights of the ownership of the premises in the house, he still refused to cancel his decision.

Then – from bad to worse. Once more, a person by proxy issued issued by Bersirov appeared in the court as a representative of the Kolmyazhsky 15 condominium partnership, but a representative by proxy issued by Sklar wasn’t allowed to the process by the judge. That decision was motivated by the same “tale of a white bull” (Russian proverb) – by the “legitimate reasons” the gentlemen of the Stroitelny Trest had. Although Kovalov was just convinced of the opposite.

The theater of the absurd was added by the presence of the minutes of the meeting of the condominium partnership on the election of Svetlana Sklar as chairman of the board in the materials of the case, while the minutes on the election of Beslan Bersirova were absent. But the judge did not consider it necessary to reclaim them.

As a result of the dropping out, it was a real Sabbath in the court. The three people who were vitally interested in the liquidation of the condominium partnership - Rezvov, his deputy Bersirov, and Martynovskaya (and neither owned premises in the Kolomyazhsky 15 complex) - tried to cancel the decision of the owners of the premises and drown the condominium partnership which had nearly popped up.

Needless to say, in whose interest the judge was acting. The “interim measures” taken by him violated the rights of all the owners of the premises. The winners were the outsiders who didn’t want to go away.

To satisfy the Rezvov’s claim, the judge Kovalev obviously incorrectly defined the quorum of the disputed meeting. According to Part 3 of Article 45 of the Housing Code of Russia, quorum is determined by the number of votes with the right of ownership of more than 50% of residential and non-residential premises of the house. The judge Kovalev took into account not the area of ​​the premises owned, but the projected area of ​​the apartment building. I.e. he took into account the areas that hadn’t been bought and registered as the property.

Certainly, the law distinguishes quorum requirements to a meeting of owners and to a meeting of members of a condominium partnership. The quorum of a meeting of members of a condominium partnership is determined by a percentage of the members of the condominium partnership. However, in order to satisfy the claim of Rezvov, judge Kovalev said that, for a quorum, it had to be 50% of the owners presented at the meeting of the condominium partnership members. Thus he equated the meeting of all the owners and the meeting of all the members of the condominium partnership. Thus, he agreed blind with the Rezvov’s arguments in his amusing wording on the pages of the statement of claim.

The outcome of that trial initially was beyond question, especially taking into account the presence of Natalia Veresova at the meeting. Most likely, the judge was pressured again. Otherwise, the original methods of his work remain misunderstood.

The miracles also continued in considering the cassation in the city court. The judges behaved so rude, defiant, talking down the representatives of the owners, that the same scenario and the same “technology”, that had been used by the Stroitelny Trest in other litigation as well, could be seen behind all the things. There was no other way for the city court to uphold the ruling legally. There was only such a way - semi-legal.


Endless war

Certainly, the misadventures of the “rebels” were not over there. In 2011, Taranov tried to achieve excitation of a criminal case upon illegitimacy of the actions of officials of the city court who had ping-ponged the cassation of the newly elected condominium partnership. Formally, this operating body ceased to exist, however, in fact, people were still united by the common enemy.

All the attempts to breathe life into the lawsuit failed. The decision made by the judge Kovalev had been lobbied so thoroughly that all the appeals invariably failed. And that was despite the fact that the real spuriousness of the agreement on share participation of Rezvov in the construction of the residential complex was proved! If we consider this agreement carefully, we would question for which purpose such a rich man as Evgeny Rezvov needed a studio apartment under the roof of the cost less than 2 million? Moreover, it already belonged to a completely different person, who had paid the share for it.

A small consolation was the decision of the Petrogradsky District Court of January 20, 2011 to invalidate the amendments made to the relevant registers by the tax authorities indicating Bersirov as chairman of the condominium partnership. The solution was automatically devalued after the farce played by Kovalev. However, it was upheld by the September decision of the Court of Appeal with the phrase “absence of the subject of the dispute”. In other words, the absence of any meetings of the condominium partnership from February 9 to March 24, 2010 still remained the official version.

However Taranov wasn’t going to leave the subject alone. On March 15, 2011, the triumphing Bersirov asked the registration authorities “to return everything back” because he, allegedly, was finally elected as the legitimate President of the condominium partnership. But in November of that year, Svetlana Sklar, getting acquainted with the materials of the case connected with the claim of Uyutny dom to her, found two protocols there. Accordingly, there were the minutes of the general meeting of members of the Kolomyazhsky 15 condominium partnership of March 15, 2010 on the election of the Board of the company composed of E.G. Rezvov and B.R. Bersirov and the minutes of the meeting of the Board of the condominium partnership of March 15, 2010 on the election of Bersirov as chairman of the partnership. The Primorsky District Prosecutor’s Office responded to a baffled request of Sklar about the circumstances in the same day - with reference to all the same protocols.

It turned out that Bersirov simply ignored his own one-year-old invention. That could only afford a very confident person. The degree of that certainty was so high that the developers, who had finally achieved the point and liquidated the condominium partnership in mid-November by the right of representation of Olga Martynovskaya newly asserting herself liquidator, did not even bother to make ends meet in the balance liquidation statements. The “liquidators” submitted to the tax authorities a certificate of 2009, other words – two-years old. It was listed exactly 0 rubles. Consequently, for all that time, the “liquidation”, as one would expect, was in a deep sleep. 

However, the remains of more than a million rubles were left in the balance; therefore, certain financial movements had still occurred. But who was worried then? All references to the fact, all attempts to attract the attention of the authorities to the inconsistencies in the versions and mutual contradictions in the existing documents led to a polite refusal.

Moreover, Sklar and the member of the aforementioned “new” condominium partnership Chernakov were accused by the Uyutny dom of not paying for the actual utility bills. The petty revenge was of fundamental importance: both the defendant at the time had regularly transferred money to the account of the condominium partnership, thereby acknowledging the validity of “managing” by Uyutny dom. Both were charged with absolutely identical claims, but the trial results were different.

The matter was that the claim against Chernakov was considered in the Petrogradsky District Court and the claim against Sklar - in the Primorsky District Court. Chernakov remained unattended by powerful lords, who were busy with the proceedings with Sklar and Taranov. Therefore nobody influenced the judge. As a result, the claim was denied.

Sklar appeared “under the hood” (Russian saying, means - closely watched). The judge even got past the fact that the plaintiff changed his position retroactively and claimed in the end that there had been more than one contract on rendering of services to tenants. Thus, it was implicitly assumed that Sklar was associated by certain obligations on payment of services with a “managing” company and with the condominium partnership as well. But for the period from 2008 to 2010 Sklar had only one obligation - to the Kolomyazhsky, 15condominium partnership.

In the case of Chernakova, the decision of the court was the following: “The plaintiff didn’t present documents proving his authority to manage the apartment building providing by the owners of the housing at the general meeting.

For the period 2008-2010, the accounts for utilities and maintenance of the common property in the house 15 block 2 Kolomyazhsky Ave in Saint Petersburg were exhibited for the apartment 598 by the condominium partnership Kolomyazhsky, 15 as well, and they was paid by the defendant on November 15, 2010.

 The court comes to the conclusion that there is no evidence in the case of a relationship between the parties, entitling the plaintiff to require the defendant to pay for utilities and money for maintenance of the common property of the house 15 block 2 at Kolomyazhsky Ave in St. Petersburg, in connection with aforementioned, there is no basis for satisfaction the requirements of the plaintiff”.

The following decision was on hands of Sklar: “The arguments of the representative of the defendant, that only the Kolomyazhsky 15 condominium partnership could be the proper plaintiff due to the stated requirements, the court finds invalid as there is no evidence in the case file that during the claim period, utilities and services on management, maintenance and repairing of the common property of the apartment building were carried out by the defendants directly to the Kolomyazhsky 15 condominium partnership”. The plaintiff carried out the actual delivery of public services to all the owners of residential and non-residential premises”.


The answer is simple. For satisfaction of the claim of the Uyutny dom  company, created by Rezvov and Bersirov, on collecting the payments from Sklar, 10 days before making the decision, the experienced judge of Primorsky District Court Kravtsova was replaced with the judge Dmitry Medvedev (what an irony!) who had been appointed just a month before that. It was his lack of experience made him easy tool in the hands of the manipulator.


Far away to outcome

 The epic of the initiation of the criminal case on the fact of likely falsification of the stamp by Bersirov, with which the false minutes of the election of the chairman of the condominium partnership was sealed, was finished unordinary. For the period of verification of the material (Police Report Database № 13520) by the security officer of the Regional Office of the Ministry of Internal Affairs of Russia in the Petrogradsky district of St. Petersburg, six times T. V. Shmelev issued the decisions on refusal to initiate the criminal cases, which the prosecutor's office of the Petrogradsky district of St. Petersburg canceled as illegal and unjustified.

With that, the following situation formed. Supervising the legitimacy during the review procedures, the Prosecutor's Office of the Petrogradsky district each time found no reasons for cancelling the issued order to dismiss the criminal complaint. Once the applicant appealed to the Petrogradsky District Court against the same resolution as provided by Article 125 of the Criminal Procedure Code, the prosecutors of the Petrogradsky district brought to the court the decision on cancelling of the decision on dismissal the criminal complaint and on direction of the materials to an additional check. That, in its turn, became the basis for the termination of the application in the court.

Some kind of ping-ponging of the law enforcement with the court serving as a wall finished with the consideration of a counter claim of the general director of the Stroitelny trest Rezvov on arbitrary and illegal actions of Sklar by the same security officer Shmelev (Police Report Database № 12762 of September 26, 2011). By the report on the detection of a crime of January 23, 2012, a criminal case number 562 085 was initiated already against her by part 1 Art.330, part 3 Art.327 of the Criminal Code of Russia. She imputed to “unauthorized convening of the owners despite the established order” and ‘failure to sign contracts” which apparently led to “property damage” On the same basis, the seller of services can easily apply to the security officer Shmelev against any buyer passing by.

As a result of that not very long story of appealing, on July 19, 2012, the Petrogradsky District Court under the chairmanship of Judge Svetlana Zhigunova cancelled the decision on initiation of criminal case. The reason was the absolute vagueness of the accusative specifications. Sklar did not even know in all details what kind of acts she was charged of. Especially since it was not clear what the relationship between something unknown done by her and  the “consequences” was.

There was a curious detail in the circumstances of the criminal proceedings on the criminal case of Sklar. The court of the first Instance (Petrogradsky), despite the flagrant violations of the law committed in the criminal case, not even delved into the matter and limited with a rather chaotic order to dismiss the appeal of Sklar giving the adoption of the decision on the legality of the order on institution of criminal proceedings at the mercy of the city court. Already after the judges of the city court introspected the case and wrote the decision, the Petrogradsky court, again without going into the matter, very simply put into the base of its decision the decision of the High Court. Independence of courts subjected to verification again and again with disastrous results.

Not less disappointing was consideration of May 15, 2012 case on the destruction of the condominium partnership by the Smolninsky District Court. Taranov and Sklar substantiated to the court the quite clearly evidence of their claims, in particular, an improperly designed file of documents filed in 2011 on assumption of chairman office of the condominium partnership by Bersirov. But Natalia Veresova was present in the court, and the result was entirely predictable. The court referred to the fact that the registration authority was not obliged to verify the legitimacy of accepted documents presented in order of registration. In addition, the balance liquidation report for 2009 filed to the tax authorities in 2011, did not have anything illegal in the very fact of its presentation. There was some movement of the funds on the balance report, but it was self-evident fact. The matter is wrapped in mystery.

 Finally, yet another lawsuit which Taranov decided to take up on a very specific issue was finished. On March 22, 2010, the Stroitelny Trest and Sport Time JSC signed an agreement on purchasing and selling a land area of ​​1567 square meters. This area was part of the territory assigned to the Kolomyazhsky, 15 housing complex. Thus, the rights of the homeowners who had every right to domestic (non-commercial) use of the land were violated. As a result of the proceedings which ran from the fall of 2011, Taranov had on hands the decision of the Arbitration Court of St. Petersburg and Leningrad region of February 16, 2012 (case A56-36585/2011) rejecting his claims to the Stroitelny Trest.

 The explanations given by the company-developer on September 29, 2012, is read as a Raider Bible. It was said there in a plain text that permission on acquisition of land in St. Petersburg by the owners of real estate was issued by the Governor of St. Petersburg, as well as by Chairman of the Committee of urban development and architecture (KGA). In that regard, the developer was introduced the non-applicability of the Federal Law № 214-FL in this situation. After all, he had the appropriate order of the Committee of urban development and architecture of St. Petersburg № 50 of April 24, 2002 on hands. No comments.


Relatively honest confiscation of housing

 Another very revealing case was a lawsuit between the Stroitelny Trest and shareholder Natalia Lischuk. In the autumn of 2009, Lischuk filed a lawsuit against the developer for the return of the money paid by the shareholder due to the reducing area of ​​the apartment by the contract on shared construction. They came from the declared value of a square meter of the living space. At the time of the entry in the share participation, it was little more than 20 thousand rubles.

The Kalininsky District Court partially satisfied the shareholder’s claims and collected 70827 rubles from the Stroitelny Trest in favour of the plaintiff. The court, referring to the law on participation in shared construction, admitted the obligation of the developer for return of overpaid funds transferred by shared building participant in case of reduction of the area of the apartment relative to the project size.

In response, the Stroitelny Trest proposed a counterclaim for the recovery from the shareholder, who fully paid his share for the apartment, a penalty in the amount of 3 037 675.50 rubles for delay of several payments. The circumstances of the case were considered in the Vyborgsky court that rightly pointed out in the decision that the amount of the contribution from Lischuk with her share paid 3 659 850 rubles, such a”fine” was clearly disproportionate.

With that, it was considered that some of the payments were made by share participants ahead of time and in a larger size, and the delays were of insignificant character, As a result, by the court, Stroitelny Trest received from the sharer ... 2 000 rubles.

However, both of these judicial acts created a serious threat to Rezvov and Bersirov. First of all, a dangerous precedent was created, based on which the courts of any instances in the future could deprive developers from the sources of profits extracted from the collection of crazy penalties (they were registered in all contracts of the company). Further, only in sections A, B, C, D, E, F, G of the house on Kolomyazhsky, 15, the total area of ​​the housing “appeared” less than designed by 963.60 square meters. In terms of the current prices for a square meter that was not less than 77 million rubles. Of course, the management of the Stroitelny Trest didn’t intend to return the money.To remedy the situation by the methods we are aware of, Rezvov and Bersirov involved a certain Elena Ivanova who, according to some online resources, had some very close relatives who held judicial positions in the Kalininsky and Dzerzhinsky district courts, as well as in the Qualification Collegium of Judges of St. Petersburg.

From this moment, the outcome of the cases involving the Stroitelny Trest Company had changed dramatically. The City Court of St. Petersburg ignored explanations of the Supreme Court of the Russian Federation pointed out that if there appeared relations on transfer of apartment in property or on performance of work completed with transferring apartment to citizen, and  citizen at the conclusion of the contract had intention to use the apartment only for the personal, family, household needs, it applied to the Federal Law “On Protection of Consumers” which provided citizens more guarantees of protection of their rights against unscrupulous contractors on the contract signed than the Russian Civil Code limiting the rights of citizens by the framework agreement.

The city judges preferred to be guided a framework of the contract, which limited the rights of citizens, and having cancelled the decision of the first instance court, they refused the shareholder on returning of the investment overpaid.

 With such scrupulousness, the City Court was able to overlook the falsified evidence presented by the developers, to ignore the dates and the terms of issue of the permission for construction, and copied the content of the developer’s appeal in the judicial act, up to the phrase that the shareholder refusing to take an apartment that didn’t meet the conditions of the contract and abused his power!

In addition, some documents, containing false information about the number of the total area of ​​the constructed buildings, were submitted to the materials of the cases. Affirming the court decisions on the actual seizure of the apartment of the Lischuk’s family paid by them, the courts ignored the obvious facts and referred to invalid documents. Thus, in all the cases involving Lishchuk, the seizure of the apartment was substantiated by non-application of the Law on shared construction with reference to the order of the Committee for City Planning and Architecture of 2002, represented by Ivanova as permission for building. For a long time, she concealed the permission for construction the developers had, since the permissions did not coincide by the dates with the very building which, therefore, had been carried out post factum, and only then they worried about obtaining the necessary papers.

 The fact of involvement of the Stroitelny trest JSC to responsibility for conducting the construction without permission and issue of the valid constr

Edgar TARADZIN, specially for Rumafia.com

Комментариев нет:

Отправить комментарий