Problems of proper notification of defendants by the court
After the entry of LLC Smartes in the Unified State Register of Legal Entities had been removed, its creditor appealed to the court, asking to bring two members of the liquidated company (Parkhomenko V.A. and Rublev A.A.) to subsidiary liability for its debts.
The court of first instance refused to satisfy the claim.
The appeal reversed this decision and satisfied the claims.
Position of the cassation:
– This case was considered in the court of first instance in the absence of defendants or their representatives. It is evident from the materials of the case that the defendants were not properly notified about the court proceedings;
– recognizing sending of definitions to the address of Parkhomenko V.A. in St. Petersburg as appropriate, the appeal court proceeded from the fact that this address is the last known residence address of the defendant. Meanwhile, according to the address reference provided by the Migration Department of the Ministry of Internal Affairs of Russia in St. Petersburg and Leningrad region at the request of the court of appeal, the address at which the courts sent notices to Parkhomenko VA defendant was registered at the place of residence in the period from 04.09.2012 to 04.09.2013. It is also stated in the certificate that as of October 19, 2021 the Office has no information about the registration of Parkhomenko V.A. in St. Petersburg and the Leningrad region. When the case was reviewed by the Court of Appeal, Parkhomenko V.A. was presented with a copy of his passport with the marks of his registration in the Vologda Region. Information about the same residence address is also given in a notarized power of attorney issued by Parkhomenko V.A. to the representative Victorova A.A., on the basis of which she was present in the court of appeal hearing;
– rejecting arguments of Parkhomenko V.A. concerning his improper notification with a reference to submission of only a copy of passport page with a note on registration at another place of residence and the content of the answer of the department received at the request of the court, the court of appeal did not take into account that the information on his registration address indicated by the defendant was contained in a notarized power of attorney for his representative, and did not take into account that the answer of the department indicated that he did not have information on his registration address, but that he did not have a notarized power of attorney.
Judicial Acts were repealed, the case was sent for new consideration.