How I won the trial in Makhost
Need to beat a bitch! Be sure to beat the bitch © .N.Strugatsky
There are few real violent ones - there are no leaders. © V.S. Vysotsky
We were Makhost's clients, we had a good leased dedicated server. We paid a year in advance. Makhost with friends threw us, like several thousand of his clients.
Our sites did not suffer, but the money hung and a lot of blood was drunk, nerves were spent.
I was already interested in the respected community, what to do if Makhost does not make adequate offers, and the money was invested decently by our standards in this topic .
Opinions were divided, but in general, everyone advised to "sue."
')
As the request on the website of the Arbitration Court shows, there are almost no claims after the epic file from clients. Probably people laziness or prepay were small.
Under the cut, there is an analysis of the situation, a statement of claim that soon led to a decision in our favor, as well as my impressions of the process.
1. We have no paper contract. Makhost probably has, since we sent him. Nothing was sent back. There is an offer on the site.
2. There are 4 payments totaling about 135 tr.
3. Services without any claims were provided until April 7, 2010.
4. Signed acts of completed work does not exist.
5. According to the contract, the only source of information about the services provided is information in the client’s panel on the Makhost website. Since May 2010, we have an active “no server” tariff with a price of 1 ruble per month.
6. We paid about 15 tr. for server upgrade. In the panel, these amounts are written off as spent immediately. In fact, we used the upgrade for only 4 months, and we were going for many years.
7. After the well-known events, we moved to another DC, paying for the move itself urgently and the second half of April, for which Makhost took the money, as if everything was in order until May 1
8. Purpose of the suit: to get maximum money back from Makhost.
There were three possible strategies. The most profitable and the most risky, the average and the most correct, but with a minimum profit.
In any case, before going to court, it is necessary to write a claim and execute it in due form. Under the link there is a claim, send with an inventory and a notification.
1. The risk strategy is that we are formulating a claim for unjustified enrichment, pointing to the erroneously transferred funds and claiming that no services were provided at all.
This strategy is supported by a large required amount (135 TR + interest), the absence of paper documents, certain chances that the respondent will not appear at all and will not present his position, the simplicity of the statement of claim.
Arguments against: 4 payments made by chance must be somehow explained; if the defendant comes, he will make an offer without any problems, accept it in the form of an appropriate invoice and payment, a number of our requests for technical support, etc.
2. The average strategy is to recognize the fact of the contract, the requirement to return all unused amounts of the version of the control panel on the site, as well as:
- for server upgrade, as for unused services,
- 2 weeks from April 16 to April 30, paid twice (to Makhost and another DC)
- for damages (paid data transfer to another DC)
The amount of the claim in this case is 94 tr.
3. A conservative strategy is to demand only what we did not use according to Makhost. Makhost almost did not distort reality in the panel. Almost because:
- in July, deleted our biggest payment in 98 tr, so that we owe him about 30 tr. (until July the payment was in place).
- attributed to itself the normal provision of services from April 16 to 30
- since May, the noserver tariff has been activated for us at a price of 1 ruble per month
The amount of the claim in this case is 74 tr.
We have chosen a conservative strategy.
The reasons:
1. I wanted to minimize the number of trips to court. Every trip is
- 1000 km (Volgograd-Moscow)
- at least 4000 rubles and from 12 (very well on the plane) to 48 (the most real on the bus-train) hours of time.
2. The risk strategy was too easily crushed by an attentive judge or any diligently composed response to the claim (4 payments, acceptance of the offer).
3. Strangely enough, it is almost impossible to prove the fact of the termination of the provision of services on April 7 and 16 (the arbitration courts practically do not consider the testimony), and it’s unpromising to refer to boiling shit on the Internet, as well as to the Merits of Uptimes, since there is no indication in documents specific servers, ip, resources.
I arrived at the courtroom 20 minutes before the meeting began without any special adventures, except for the heat and smog in Moscow news (I was in Moscow on August 6).
He examined the neighbors in the corridor, drew attention to only one very impressive comrade of a strict type (good shirt, tie, cufflinks, continuous and business buzz on the phone).
The meeting was scheduled for 10:55. 1 minute before the start, a judge in black appeared in the corridor and sternly pronounced something very similar to “10:55”. Two people moved to the door: I was a business gentleman who did not like me.
We met at the entrance, looked into each other's eyes. I really did not want him to be the representative of the defendant. I asked: "According to the schedule, 10:55?". "Well, yes," he replied, also greatly surprised. Logged in
In general, I broke into someone else's meeting. There was no plaintiff, so for about a minute no one could understand what was happening. I represented this moment in court the interests of a Moscow museum in a fire case. The meeting, scheduled for 9:55, thanks to me, was more fun than it should be. I was lectured on 2 petitions and was already suspended from participation in the meeting when it turned out that it was not me.
In general, after 1.5 hours, at half past one, I finally went. There was no respondent.
The judge hit me. I have not yet met a more restrained and less talkative person, except in the movies.
I bring the whole dialogue very close to the text (by the way, the transcript of the arbitration sessions, as I was told, is usually not conducted):
I read the case for a minute, then said:
Always so, I thought.
Soon I will receive a court decision, then a writ of execution. If the money is not received, we will write to the bailiff service.
Will we put forward additional requirements, have not yet decided. We'll see, think about it.
As I said, the court won is not equal to receiving money, so this is not the end.
You should never be allowed to wipe your feet on yourself, and in our situation to wash and not even try to find the truth, means not to respect yourself.
Let such claims be not 1-2, as now, but as many as Mr. Sverschevsky-Demidov-Goltsov threw. I spent several thousand rubles for this event (lawyer, road, documents), but I already received a lot of pleasure. I will get even more if I see a couple of dozen suits in situations similar to ours.
Here is my claim , and read the epigraph.
There are few real violent ones - there are no leaders. © V.S. Vysotsky
We were Makhost's clients, we had a good leased dedicated server. We paid a year in advance. Makhost with friends threw us, like several thousand of his clients.
Our sites did not suffer, but the money hung and a lot of blood was drunk, nerves were spent.
I was already interested in the respected community, what to do if Makhost does not make adequate offers, and the money was invested decently by our standards in this topic .
Opinions were divided, but in general, everyone advised to "sue."
')
As the request on the website of the Arbitration Court shows, there are almost no claims after the epic file from clients. Probably people laziness or prepay were small.
Under the cut, there is an analysis of the situation, a statement of claim that soon led to a decision in our favor, as well as my impressions of the process.
Data
1. We have no paper contract. Makhost probably has, since we sent him. Nothing was sent back. There is an offer on the site.
2. There are 4 payments totaling about 135 tr.
3. Services without any claims were provided until April 7, 2010.
4. Signed acts of completed work does not exist.
5. According to the contract, the only source of information about the services provided is information in the client’s panel on the Makhost website. Since May 2010, we have an active “no server” tariff with a price of 1 ruble per month.
6. We paid about 15 tr. for server upgrade. In the panel, these amounts are written off as spent immediately. In fact, we used the upgrade for only 4 months, and we were going for many years.
7. After the well-known events, we moved to another DC, paying for the move itself urgently and the second half of April, for which Makhost took the money, as if everything was in order until May 1
8. Purpose of the suit: to get maximum money back from Makhost.
Possible strategies
There were three possible strategies. The most profitable and the most risky, the average and the most correct, but with a minimum profit.
In any case, before going to court, it is necessary to write a claim and execute it in due form. Under the link there is a claim, send with an inventory and a notification.
1. The risk strategy is that we are formulating a claim for unjustified enrichment, pointing to the erroneously transferred funds and claiming that no services were provided at all.
This strategy is supported by a large required amount (135 TR + interest), the absence of paper documents, certain chances that the respondent will not appear at all and will not present his position, the simplicity of the statement of claim.
Arguments against: 4 payments made by chance must be somehow explained; if the defendant comes, he will make an offer without any problems, accept it in the form of an appropriate invoice and payment, a number of our requests for technical support, etc.
2. The average strategy is to recognize the fact of the contract, the requirement to return all unused amounts of the version of the control panel on the site, as well as:
- for server upgrade, as for unused services,
- 2 weeks from April 16 to April 30, paid twice (to Makhost and another DC)
- for damages (paid data transfer to another DC)
The amount of the claim in this case is 94 tr.
3. A conservative strategy is to demand only what we did not use according to Makhost. Makhost almost did not distort reality in the panel. Almost because:
- in July, deleted our biggest payment in 98 tr, so that we owe him about 30 tr. (until July the payment was in place).
- attributed to itself the normal provision of services from April 16 to 30
- since May, the noserver tariff has been activated for us at a price of 1 ruble per month
The amount of the claim in this case is 74 tr.
We have chosen a conservative strategy.
The reasons:
1. I wanted to minimize the number of trips to court. Every trip is
- 1000 km (Volgograd-Moscow)
- at least 4000 rubles and from 12 (very well on the plane) to 48 (the most real on the bus-train) hours of time.
2. The risk strategy was too easily crushed by an attentive judge or any diligently composed response to the claim (4 payments, acceptance of the offer).
3. Strangely enough, it is almost impossible to prove the fact of the termination of the provision of services on April 7 and 16 (the arbitration courts practically do not consider the testimony), and it’s unpromising to refer to boiling shit on the Internet, as well as to the Merits of Uptimes, since there is no indication in documents specific servers, ip, resources.
Court
I arrived at the courtroom 20 minutes before the meeting began without any special adventures, except for the heat and smog in Moscow news (I was in Moscow on August 6).
He examined the neighbors in the corridor, drew attention to only one very impressive comrade of a strict type (good shirt, tie, cufflinks, continuous and business buzz on the phone).
The meeting was scheduled for 10:55. 1 minute before the start, a judge in black appeared in the corridor and sternly pronounced something very similar to “10:55”. Two people moved to the door: I was a business gentleman who did not like me.
We met at the entrance, looked into each other's eyes. I really did not want him to be the representative of the defendant. I asked: "According to the schedule, 10:55?". "Well, yes," he replied, also greatly surprised. Logged in
In general, I broke into someone else's meeting. There was no plaintiff, so for about a minute no one could understand what was happening. I represented this moment in court the interests of a Moscow museum in a fire case. The meeting, scheduled for 9:55, thanks to me, was more fun than it should be. I was lectured on 2 petitions and was already suspended from participation in the meeting when it turned out that it was not me.
In general, after 1.5 hours, at half past one, I finally went. There was no respondent.
The judge hit me. I have not yet met a more restrained and less talkative person, except in the movies.
I bring the whole dialogue very close to the text (by the way, the transcript of the arbitration sessions, as I was told, is usually not conducted):
- Preliminary meeting and interview of the parties on the case (case number), the defendant did not appear, the Claimant is present. Any petitions, questions, additions?
- Not
I read the case for a minute, then said:
- There is a proposal to consider the case on the merits. Any objections?
- Not.
- A preliminary meeting is declared closed. The hearing on the merits is declared open. Any petitions, questions, additions?
- Not.
- The claim is satisfied in full . The case is closed, within 5 working days you will receive a solution.
Always so, I thought.
Perspectives
Soon I will receive a court decision, then a writ of execution. If the money is not received, we will write to the bailiff service.
Will we put forward additional requirements, have not yet decided. We'll see, think about it.
As I said, the court won is not equal to receiving money, so this is not the end.
Morality
You should never be allowed to wipe your feet on yourself, and in our situation to wash and not even try to find the truth, means not to respect yourself.
Let such claims be not 1-2, as now, but as many as Mr. Sverschevsky-Demidov-Goltsov threw. I spent several thousand rubles for this event (lawyer, road, documents), but I already received a lot of pleasure. I will get even more if I see a couple of dozen suits in situations similar to ours.
Here is my claim , and read the epigraph.
Source: https://habr.com/ru/post/101808/
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