August 15, 2010 at 17:51How I won the trial against Machhost
Gotta beat the bitch! Be sure to beat the bitch © A.N. Strugatsky
There aren’t enough violent people here - there aren’t any leaders © V.S. Vysotsky
We were clients of Makhost, we had a good rented dedicated server. We paid a year in advance. Makhost with friends threw us, as well as several thousand of his clients.
Our sites were not affected, but money hung and a lot of blood was drunk, nerves were spent.
I was already interested in the respected habrasociety, what to do if Makhost does not make adequate offers, and the money has been invested decently by our standards in this topic .
Opinions were divided, but in general, all advised "sue."
As the request on the website of the Arbitration Court shows, there are almost no claims after the epic file from clients. Laziness or prepayments were probably small for people.
Under the cut is an analysis of the situation, a statement of claim, which soon led to a decision being made in our favor, as well as my impressions of the process.
1. We do not have a paper contract. Makhost probably has one 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 complaints were provided until April 7, 2010.
4. Signed acts of completed work do not exist.
5. According to the agreement, the only source of information about the services provided is the information in the client panel on the site of the Host. Since May 2010, the “no server” tariff has been active 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 reality, we used the upgrade for only 4 months, and were going for many years.
7. After the well-known events, we moved to another DC, having paid the urgent move and the second half of April, for which Makhost took the money, as if everything was in order before May 1
8. The purpose of the lawsuit: to get the most money back from Makhost.
Three strategies were possible. The most profitable and most risky, average and most faithful, but with a minimum profit.
In any case, before going to court, you must write a claim and file it in accordance with all the rules. There is a complaint under the link , send it with an inventory and notification.
1. The risk strategy is that we formulate a lawsuit about unjustified enrichment, pointing to the erroneously transferred funds and claiming that no services were provided at all.
This strategy is supported by the large amount required (135 tr + interest), the absence of paper documents, certain chances that the defendant will not appear at all and will not present his position, simplicity of the statement of claim.
Arguments against: 4 payments made by chance, it is necessary to somehow explain; if the defendant appears, he will present the offer without any problems, accepting it in the form of an appropriate invoice and payment, a number of our technical support requests, etc.
2. The average strategy is to recognize the fact of the contract, the requirement to return all unused amounts according to the version of the control panel on the site, and also:
- for upgrading the server, as for unused services,
- for 2 weeks from April 16 to 30, paid twice (to Host and to another DC)
- for losses (paid transfer of data to another DC)
The amount of the claim in this case is 94 tr
3. Conservative strategylies in demanding only that which we did not use according to Machhost. Machhost almost did not distort the reality in the panel. Almost, because:
- in July he deleted our largest payment of 98 tr, so we owed him about 30 tr (until July, the payment was in place).
- attributed to himself the normal provision of services from April 16 to April 30
- from May, he activated the “noserver” tariff 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.
Reasons:
1. I wanted to minimize the number of trips to court. Each trip
is 1000 km (Volgograd-Moscow)
- at least 4000 rubles and from 12 (very successful on an airplane) to 48 (most real on a bus-train) hours of time.
2. The risk strategy was too easily destroyed by an attentive judge or by any diligently drawn up response to the claim (4 payments, acceptance of the offer).
3. Oddly enough, it is almost impossible to prove the fact of the termination of services on April 7 and 16 (the arbitration courts practically do not consider witness testimonies), and it’s futile to refer to shit drilling on the Internet, as well as to uptime measures, since the documents do not indicate specific servers, ip, resources.
I arrived at the courtroom 20 minutes prior to the start of the meeting without any special adventures, except for the heat and Moscow smog highly praised in the news (I was in Moscow on August 6).
He examined the neighbors along the corridor, drew attention to only one very impressive comrade of a strict look (a 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 strictly pronounced something very similar to “10:55”. Two moved to the door: I, and the business gentleman who did not like me.
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: "On schedule, 10:55?". “Well, yes,” he replied, also very surprised. Come on.
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. This minute I represented 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. I was handed 2 motions and 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 stopped by. There was no defendant.
The judge hit me. I have not yet met a more restrained and less talkative person, except in a movie.
I bring the whole dialogue very close to the text (by the way, the transcript of arbitration meetings, as I was told, is usually not conducted):
I read the case for a minute, then said:
Always would, I thought.
Soon I will receive a court decision, then a writ of execution. If no money arrives, we will write to the bailiff service.
We will put forward additional requirements until we decide. Let's see, think about it.
As I said, a court won is not equal to receiving money, so this is not the end.
You should never be allowed to wipe your feet against yourself, and in our situation, washing your face and not even trying to find the truth means not to respect yourself.
Let such claims not be 1-2, as it is now, but as many as Mr. Sverschevsky-Demidov-Goltsov threw. I spent several thousand rubles on this event (lawyer, road, documents), but I already received a lot of pleasure. I’ll get even more if I see a couple of dozen lawsuits in situations similar to ours.
Here is my claim , and read the epigraph.
There aren’t enough violent people here - there aren’t any leaders © V.S. Vysotsky
We were clients of Makhost, we had a good rented dedicated server. We paid a year in advance. Makhost with friends threw us, as well as several thousand of his clients.
Our sites were not affected, but money hung and a lot of blood was drunk, nerves were spent.
I was already interested in the respected habrasociety, what to do if Makhost does not make adequate offers, and the money has been invested decently by our standards in this topic .
Opinions were divided, but in general, all advised "sue."
As the request on the website of the Arbitration Court shows, there are almost no claims after the epic file from clients. Laziness or prepayments were probably small for people.
Under the cut is an analysis of the situation, a statement of claim, which soon led to a decision being made in our favor, as well as my impressions of the process.
Facts
1. We do not have a paper contract. Makhost probably has one 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 complaints were provided until April 7, 2010.
4. Signed acts of completed work do not exist.
5. According to the agreement, the only source of information about the services provided is the information in the client panel on the site of the Host. Since May 2010, the “no server” tariff has been active 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 reality, we used the upgrade for only 4 months, and were going for many years.
7. After the well-known events, we moved to another DC, having paid the urgent move and the second half of April, for which Makhost took the money, as if everything was in order before May 1
8. The purpose of the lawsuit: to get the most money back from Makhost.
Possible strategies
Three strategies were possible. The most profitable and most risky, average and most faithful, but with a minimum profit.
In any case, before going to court, you must write a claim and file it in accordance with all the rules. There is a complaint under the link , send it with an inventory and notification.
1. The risk strategy is that we formulate a lawsuit about unjustified enrichment, pointing to the erroneously transferred funds and claiming that no services were provided at all.
This strategy is supported by the large amount required (135 tr + interest), the absence of paper documents, certain chances that the defendant will not appear at all and will not present his position, simplicity of the statement of claim.
Arguments against: 4 payments made by chance, it is necessary to somehow explain; if the defendant appears, he will present the offer without any problems, accepting it in the form of an appropriate invoice and payment, a number of our technical support requests, etc.
2. The average strategy is to recognize the fact of the contract, the requirement to return all unused amounts according to the version of the control panel on the site, and also:
- for upgrading the server, as for unused services,
- for 2 weeks from April 16 to 30, paid twice (to Host and to another DC)
- for losses (paid transfer of data to another DC)
The amount of the claim in this case is 94 tr
3. Conservative strategylies in demanding only that which we did not use according to Machhost. Machhost almost did not distort the reality in the panel. Almost, because:
- in July he deleted our largest payment of 98 tr, so we owed him about 30 tr (until July, the payment was in place).
- attributed to himself the normal provision of services from April 16 to April 30
- from May, he activated the “noserver” tariff 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.
Reasons:
1. I wanted to minimize the number of trips to court. Each trip
is 1000 km (Volgograd-Moscow)
- at least 4000 rubles and from 12 (very successful on an airplane) to 48 (most real on a bus-train) hours of time.
2. The risk strategy was too easily destroyed by an attentive judge or by any diligently drawn up response to the claim (4 payments, acceptance of the offer).
3. Oddly enough, it is almost impossible to prove the fact of the termination of services on April 7 and 16 (the arbitration courts practically do not consider witness testimonies), and it’s futile to refer to shit drilling on the Internet, as well as to uptime measures, since the documents do not indicate specific servers, ip, resources.
Court
I arrived at the courtroom 20 minutes prior to the start of the meeting without any special adventures, except for the heat and Moscow smog highly praised in the news (I was in Moscow on August 6).
He examined the neighbors along the corridor, drew attention to only one very impressive comrade of a strict look (a 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 strictly pronounced something very similar to “10:55”. Two moved to the door: I, and the business gentleman who did not like me.
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: "On schedule, 10:55?". “Well, yes,” he replied, also very surprised. Come on.
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. This minute I represented 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. I was handed 2 motions and 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 stopped by. There was no defendant.
The judge hit me. I have not yet met a more restrained and less talkative person, except in a movie.
I bring the whole dialogue very close to the text (by the way, the transcript of arbitration meetings, as I was told, is usually not conducted):
- A preliminary meeting and interview of the parties in the case (case No.), the defendant did not appear, the plaintiff is present. Do you have motions, 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.
- The preliminary meeting is declared closed. A hearing is essentially open. Do you have motions, questions, additions?
- Not.
- The claim is fully satisfied . The case is closed, within 5 working days you will receive a decision.
Always would, I thought.
Prospects
Soon I will receive a court decision, then a writ of execution. If no money arrives, we will write to the bailiff service.
We will put forward additional requirements until we decide. Let's see, think about it.
As I said, a court won is not equal to receiving money, so this is not the end.
Morality
You should never be allowed to wipe your feet against yourself, and in our situation, washing your face and not even trying to find the truth means not to respect yourself.
Let such claims not be 1-2, as it is now, but as many as Mr. Sverschevsky-Demidov-Goltsov threw. I spent several thousand rubles on this event (lawyer, road, documents), but I already received a lot of pleasure. I’ll get even more if I see a couple of dozen lawsuits in situations similar to ours.
Here is my claim , and read the epigraph.