The second part of the Marlezon ballet :)

The Central Bank suspected Zapadny Bank of withdrawing capital from Russia

Zapadny Bank, whose license was revoked by the Central Bank on April 21, has been involved in dubious operations to withdraw capital from Russia since December last year, follows from the documents of the Bank of Russia, which RBC has read. In less than a month, from February 21 to March 17, the bank's clients - legal entities withdrew more than 2 billion rubles abroad, which is comparable to the bank's capital at that time.

At the end of March, Viktor Khrebet, Chairman of the Board of Zapadny Bank, received a letter from the Main Directorate of the Central Bank for the Central Federal District, dated March 24, 2014. It talked about the fact that clients of the bank headed by the Ridge carried out operations, the purpose of which could be the transfer of money abroad. The head of the bank was invited to attend a meeting at the Central Bank and give an explanation.

The meeting was supposed to take place on March 26, whether it took place or not is unknown; The phone of the Ridge’s board of directors has been turned off since Monday, and nothing is known about the whereabouts of Alexander Grigoriev, who a few weeks before the revocation of the bank’s license from its capital (according to a RBC source close to the bank’s management, he is now abroad, in one of European countries).

Transit Buyers

As follows from the letter of the Central Bank, the regulator was suspicious, for example, of the Berkut, Tartus, Soltin and Gard companies. The Central Bank analyzed their activities and found that the companies received money under contracts for the supply of building materials "from numerous counterparties." These funds were then transferred to the accounts of other bank customers, such as LLCs with meaningless names. Companies in this chain paid insignificant amounts to the budget - from 24,400 rubles. up to 63,600 rubles The companies transferred such amounts to the budget from January 1, 2013. until March 20, 2014 The Central Bank considers this a sign that the companies did not conduct real activities.

In addition, all these companies had an insignificant authorized capital, were registered at about the same time, they also opened accounts in Zapadny Bank at the same time - in December 2013. Some had the same founders. All these signs, writes the Central Bank, indicate that these are one-day firms.

At the same time, the Central Bank notes, the turnovers on correspondent accounts of Zapadny in other credit institutions began to grow. For example, in December, the monthly turnover compared to November increased by about four times - up to 13.6 billion rubles. In January, rapid growth continued. “As of February 1, 2014, the turnover on nostro accounts (correspondent accounts in other banks. - RBC) of the bank increased by more than 60% and amounted to about 22.7 billion rubles. ", - the letter of the Central Bank says. The regulator notes that the largest turnovers were on Zapadny accounts opened with such credit institutions as NCO CJSC NSD, Moldindconbank (Moldova), Promsvyazbank and NOMOS-bank.

At the end of February 2014 the bank gained new customers, and in general, the volume of transactions, which the Central Bank considered doubtful, increased. In less than a month - from February 21 to March 17 - 2.03 billion rubles passed through four companies. The capital of the bank at that time was 2.96 billion rubles. The regulator calls the new clients of the bank "transit links in schemes for the withdrawal of capital outside the Russian Federation." February 2013 ex-head of the Central Bank Sergei Ignatiev spoke about the widespread use of such schemes and mentioned that in this way abroad in 2012. 49 billion dollars was withdrawn.

The Central Bank responded to the request

Vladimir Semago, chairman of the board of directors of Zapadnoye, does not comment on correspondence with the regulator. Earlier, he told RBC that he was sure until the last moment that the license would not be revoked. “The bank functioned and fulfilled all obligations to customers, despite this, it was assigned by the Central Bank to the fifth (lowest. - RBC) category of quality,” he said.

The fact that the bank was transferred to the lowest reliability group was reported by the Central Bank to Zapadny in a letter dated April 4. As the reason for this, the regulator indicated that the bank did not have enough reserves for loans to 20 companies, as well as for investments in shares of the Prometey closed-end mutual investment fund. The Central Bank estimated the volume of under-created reserves at 2.77 billion rubles. The creation of reserves for this amount would practically nullify the bank's capital, which at that moment amounted to 3 billion rubles, a source in the bank told RBC.

10 days after that, the Central Bank introduced restrictions on accepting deposits and placing funds on accounts in foreign banks, while at the same time demanding that the reserves be added to and report by April 16. In response, the bank's management turned to the Central Bank with a request to sanitize the bank. “The response was the revocation of the license,” says a source at the bank.

What would that mean

According to lawyers, the scheme described by the Central Bank makes you think about the withdrawal of assets before revoking the license. “The whole scheme may look like this: a bank gives an unsecured loan to a company that de facto does not conduct any activity and can be controlled by the bank’s owners, then this company, on far-fetched grounds, in this case under the pretext of buying building materials, makes payments in favor of other companies, such as same one-day, - says the lawyer of the company "Nalogovik" Mikhail Filippov. - Money can be transferred to the accounts of this company in another bank, these can be accounts of both Russian and foreign banks, the chain can be long. Hence the increase in turnover on correspondent accounts between banks.” According to the expert, the Central Bank usually sees such operations and tries to put pressure on the owners to put things in order, which follows from the regulator's letter.

The bank's statements do not contradict this version: over the past six months, the volume of loans to legal entities has grown sharply - by 760%. Earlier, experts told RBC that such growth can hardly be called organic. The main funding of Zapadny was carried out at the expense of deposits of individuals, the volume of which before the revocation of the license was 23.6 billion rubles. This is the fourth bank in terms of deposits among those whose licenses were revoked by the Central Bank since last autumn.

The press service of NOMOS Bank declined to comment on the operations of specific clients. A RBC source close to the bank said that these were interbank payments in favor of a third bank. The payments of Zapadny, which were carried out by Promsvyazbank, were also connected with the interbank market, its vice president Anna Belyaeva told RBC. “There were also several client payments for insignificant amounts,” she adds. The press service of the NPO CJSC NSD declined to comment.

As you know, the years 2015-2016 were not the easiest for the banking sector, several dozen organizations lost their license to carry out core activities. This fate has not bypassed Zapadny Bank, which customers are now at a loss - how to pay on a loan, and is it necessary to do this in principle?

We answer the question: the revocation of a license from a bank does not give borrowers the right to stop paying on existing debts. Those. even if the bank with which you signed the agreement no longer works, you still have to pay, just according to other details.

The fact is that during the bankruptcy procedure or revocation of a license, all the assets of a banking company are transferred to another organization, which is determined by the Central Bank and the Deposit Insurance Agency. It is the selected third-party organization that will subsequently accept loan payments, as well as pay money to depositors.

To date, complete information about the details for which contributions must be made is presented on the official website of the DIA in the section "Insured events".

Regarding the bank described above, there is a separate section, which can be found at this link.

To transfer funds, you must use the following details:

• BIC: 044525534
• Correspondent account: 30101810900000000534 OPERU Moscow
• Beneficiary's bank: OAO Bank Zapadny
• Beneficiary: OAO Bank Zapadny
• Beneficiary account: 47422810100000092338
• TIN: 7750005637
• Gearbox: 775001001

In the appointment, you must specify the number of the loan agreement, the date it was drawn up, as well as the full name of the borrower. If we are talking about a legal entity or individual entrepreneur, you must specify its full name. Such payments are not subject to VAT.

Please note that the line "Type of payment" should not be filled. You can deposit through the cash desk of any banking institution, while it should be borne in mind that a commission may be charged for making an interbank transfer.

There is another way - depositing cash through the working cash desks of the bank. Their schedule is from Monday to Thursday from 09.00 to 17.45, on Friday from 09.00 to 16.30, Saturday and Sunday are days off.

Below we provide you with a list of offices where they accept cash to pay off debt:

• Moscow, st. Trade union. e.8. building 1.
• 426057, Udmurt Republic, Izhevsk, st. Lenina, d. 8.
• 394030, Voronezh region, Voronezh, st. Plekhanovskaya, 45
• 656002, Altai Territory, Barnaul, Kalinina Ave., 18
• 644024, Omsk, Karl Marx Avenue, 4
• 630099, Novosibirsk region, Novosibirsk, st. Deputatskaya, 48
• 420080, Republic of Tatarstan (Tatarstan), Kazan, st. Dekabristov, d. 158, room. 1002.

In addition to the options presented above, you can also pay the debt on your loan at Zapadny Bank through the post office, using the new DIA details.

If you want to know how to get a loan without refusal? Then follow this link. If you have a bad credit history, and banks refuse you, then you should definitely read this

Decision No. 2-2010/2015 2-57/2016 2-57/2016(2-2010/2015;)~M-1837/2015 M-1837/2015 dated January 11, 2016 in case No. 2-2010/2015

Votkinsky District Court (Udmurt Republic) - Civil

The essence of the dispute: Claims for the recovery of amounts under a loan agreement, loan agreement

Case No. 2-57/2016

SOLUTION

In the name of the Russian Federation

Votkinsk District Court of the Udmurt Republic consisting of:

judge Stanislavsky V.V.,

under the secretary Irodova T.V.,

with the participation of the defendant Chazovaya Nemkevich E.V.,

Having examined in open court a civil case filed by OAO Bank «Zapadny» represented by the bankruptcy trustee of the state corporation «Deposit Insurance Agency» to Chazovoi Nemkevich E.The. on the recovery of debt under a loan agreement, foreclosure on pledged property, recovery of court costs,

u s t a n o v i l:

Plaintiff OJSC «Bank Zapadny» represented by the bankruptcy trustee of the state corporation «Deposit Insurance Agency» filed a lawsuit against the defendant Chazovoi Nemkevich E.The. on the collection of debt under loan agreement No. *** of the year, taking into account the updated claims as of the year in the amount of kopecks, including: principal debt kop., overdue loan debt kop., accrued current interest kop., overdue debt on interest kop., penalties on the amount of debt on the principal debt kop., penalties on the amount of debt on interest kop. in the amount of the total collateral value of rubles. The plaintiff in the statement of claim also stated the requirement to recover court costs from the defendant.

The claims are substantiated by the fact that a loan agreement No. *** was concluded between Bank Zapadny OJSC and the defendant, according to which the plaintiff granted the defendant a loan in the amount of rubles, and the defendant undertook to repay the loan amount and pay interest on the amount of the granted loan in the amount of 17.25% per annum, within the time frame established by the schedule. In violation of the terms of the agreement, during the term of the loan agreement, the borrower repeatedly violated the deadlines for repaying the loan and paying interest for the use of borrowed funds stipulated by the loan agreement. According to paragraph 1.2, paragraph 1.3 of the Loan Agreement, the subject of mortgage is an apartment located at: , worth rubles.

In connection with the formation of overdue debt, the plaintiff of the year sent a claim to the defendant demanding to repay the resulting debt within 10 days from the date of receipt of the claim, however, the borrower left the bank's claim unsatisfied. Prior to the appeal of the plaintiff to the court, the defendant did not fulfill its obligations under the loan agreement.

At the hearing, the representative of the plaintiff JSC "Bank Zapadny" did not appear, the plaintiff was duly notified of the time and place of the hearing, submitted a written request for consideration of the case in the absence of his representative. Based on paragraph 5 of Art. The case was considered in the absence of the plaintiff's representative.

defendant Chazova Nemkevich E.The. at the hearing the claims are not recognized, explained that the loan agreement with OAO «Bank Zapadny» concluded, money in the amount of RUB. received from the bank. She stopped making payments for a year, due to the fact that the bank's license was revoked, and she did not know where to pay. I agree with the calculation of the principal debt on the loan. I do not agree with the amount of interest on the loan and fines, since in connection with the revocation of the license, payments should not be made. I did not receive a written claim from the Agency. I do not agree with foreclosure on the apartment, as this is the only housing. With the establishment of the initial selling price of the apartment in the amount of rubles. disagrees, believes that the price should be set taking into account the market price of the apartment specified in the conclusion of the appraisal examination.

The defendant supported the arguments set forth by her in the written objections to the claim, filed earlier, from which it follows that Bank Zapadny OJSC was declared bankrupt and for a year she had nowhere to make transfers on the loan. Prior to the closing of the bank, she paid the amount of the loan in the amount of rubles, of which rubles. - the amount of repayment of the principal debt, rub. - interest on principal. she received a statement of claim from the Deposit Insurance Agency, she did not sign documents with this organization, did not receive notifications. He believes that the amount of the debt is rubles, since it was paid. OAO Bank Zapadny is currently bankrupt and the agreement signed between it and OAO Bank Zapadny is not consistent with previously signed documents. In this connection, he asks: to remove penalties, interest, penalties in connection with the bankruptcy of OAO Bank Zapadny, the amount of accrued interest - rubles, the amount of penalties - rubles, court costs for the payment of state duty - rubles, sign an additional agreement on the change beneficiary of payments between it and the Deposit Insurance Agency based on the calculation: RUB. - rub. = rub..

Third parties that do not declare independent claims regarding the subject of the dispute on the side of the defendant: Varlamova M.R., Chazova Nemkevich E.A., Nemkevich I.A. at the hearing did not appear, notified of the time and place of the case, submitted statements about the case in their absence.

As security for the fulfillment of the obligations of the borrower under the loan agreement, clause 6.2. The agreement provides for the Bank's right to recover a penalty in case of delay in the fulfillment by the defendant of obligations to repay the loan and / or pay interest for using the loan. The amount of the penalty is 0.2% of the amount of the overdue payment for each day of delay.

Failure to pay the loan amount, interest for using it within the time limits provided for in Section 3 of the loan agreement, entailed the obligation of the defendant and the right to demand from the plaintiff payment of a penalty in the amount of 0.2% of the amount of the overdue payment for each day of delay in fulfilling obligations to return the loan amount and interest for use of credit, which also does not contradict the provisions of Art. , .

The penalty for violation of the terms of payment of interest for the use of credit funds as of the year is kopecks.

This calculation was verified by the court and found to be correct, since it was made in accordance with the terms of the loan agreement, taking into account the actual payments made by the defendant, and is also calculated for the period of delay in payment.

The Court considers that, taking into account the period of non-performance by the defendant of obligations under the loan agreement, the grounds for reducing the amount of the penalty, provided for by Art. , is not available, since its size is commensurate with the consequences of a breach of obligations by the defendant. The court did not establish exceptional circumstances in connection with which the defendant improperly fulfilled its obligations under the loan agreement, as a result of which the plaintiff filed claims for the recovery of a penalty from him. The defendant did not claim a reduction in the amount of the penalty due to its disproportion.

decided:

Claim by OAO Bank Zapadny represented by the bankruptcy trustee of the state corporation Deposit Insurance Agency to Chazovoi Nemkevich E.The. on the recovery of debt under the loan agreement, foreclosure on the pledged property, recovery of court costs, - to satisfy.

recover from Chazova Nemkevich E.The. in favor of OAO Bank Zapadny debt under loan agreement No. *** from the year in the amount of kop., including: the amount of the principal debt kop., the amount of accrued interest kop., the amount of penalties kop.

Foreclosure on the subject of collateral:

An apartment at the address: , cadastral (or conditional) number: No. ***, owned by E.V. Chazovaya Nemkevich, by selling at an open public auction to satisfy the claims of Bank Zapadny OJSC for recovery from Chazova Nemkevich E. .IN. debt under the loan agreement № № *** from the year in the amount of kopecks. Set the initial selling price of the above apartment in the amount of RUB.

recover from Chazova Nemkevich E.The. in favor of OAO "Bank" Zapadny "" court costs for the payment of the state fee in the amount of kopecks.

recover from Chazova Nemkevich E.The. in favor of the budget of the municipal formation "City of Votkinsk" a state fee in the amount of 236 rubles 05 kopecks.

The decision can be appealed to the Supreme Court of the Udmurt Republic within one month from the date of its adoption in the final form through the Votkinsk District Court of the Udmurt Republic.

Judge The.The. Stanislavsky

Plaintiffs:

Open Joint Stock Company Bank "Western"

Respondents:

Chazova Nemkevich Elena Vladimirovna

Judges of the case:

Stanislavsky Vitaly Viktorovich (judge)

Litigation on:

For loans, for loan agreements, banks, bank agreement

Judicial practice on the application of the norms of Art. 819, 820, 821, 822, 823 of the Civil Code of the Russian Federation

Penalty reduction

Judicial practice on the application of the norm of Art. 333 of the Civil Code of the Russian Federation

On a pledge, on a pledge agreement

Judicial practice on the application of the norms of Art. 334, 352 of the Civil Code of the Russian Federation

By the end of 2016, the number of deceived depositors in Russia increased. This is due to mass inspections by the Central Bank of the work of banks accredited by it. Over the past three years, dozens of commercial banks have been deprived of their licenses in Russia. At best, for dishonest banking activities, at worst, for fraud comparable to fraudulent activities. Although, from the point of view of a deceived depositor, any financial transactions where the first one loses money seem to him to be fraudulent actions. The Central Bank of Russia controls the activities of all accredited banks. It is in his competence to protect the interests of depositors, prevent the commission of fraudulent actions by the bank, and return deposits to deceived depositors. The issuance and cancellation of licenses is also within the competence of the Central Bank of Russia. The number of banks whose license was canceled in 2014 included the joint-stock company Bank Zapadny. After that, the license of JSC was revoked Bank "Western" and filed for bankruptcy.

The opening of the bank took place in 1993, in 2011 it was reorganized into OJSC. In 2013, the Bank underwent changes, the composition of shareholders changed.

At the beginning of 2014, after an audit by the Central Bank of Russia, gross violations of the law were revealed in the activities of OAO Bank Zapadny. The norms of the Federal Law "On the Bank and Banking Activity", the Federal Law "On the Central Bank of the Russian Federation" and other normative acts were violated. In addition, financial transactions conducted by the joint-stock company carried huge risks for depositors. It was revealed that in the framework of lending activities, the bank placed material assets in low-quality assets, which exceeded acceptable risks. This could lead to a complete loss of capital, including the placed deposits of the population. In order to avoid cheating depositors, the Central Bank of Russia put forward an order to Zapadny Bank to form a reserve fund to cover losses and other methods to improve the financial activities of the joint-stock company. But the order was not fulfilled by society. The Central Bank of Russia went to extreme measures of punishment and revoked the license from OAO Zapadny. The procedure for declaring Zapadny Bank bankrupt was launched, and the issue of returning deposits to deceived depositors was resolved.

Since May 2014, after the launch of the procedure for declaring Bank Zapadny OJSC bankrupt, the Deposit Insurance Agency began paying out. Bank bankruptcy is regulated by the Federal Law "On Insolvency (Bankruptcy) of Credit Institutions".

Sberbank of Russia and "MDM-Bank" became agents as representatives of the Agency who won the tender to make the payment.

Deceived depositors in the process of bank fraud may return the deposit in the form of insurance compensation by contacting the above banks with the appropriate application. Such applications are accepted until February 2017.

After the license was revoked, the bank under the control of the Central Bank of Russia undergoes bankruptcy proceedings. It lasts for years. Applications for reimbursement are accepted until the decision to declare the bank bankrupt is made.

Based on the current Russian legislation, agent banks that issue deposit premiums on behalf of the DIA, after the completion of the bankruptcy procedure, make payments only to persons who did not file an application in a timely manner for a justified good reason.

How to return a deposit with the help of DIA to deceived depositors?

You can return the deposit in the amount of up to 700 tr. if we are talking about insured events before December 29, 2014 and 1400 tr. if it refers to insurance compensation after 12/29/2014. It is important to take into account that no matter how much money the depositor loses due to fraudulent actions of the bank, the above figures include the total percentage weight and the size of the deposit.

What to do if the amount of lost money of the deceived depositor is greater?

• Draw up a demand to the DIA and send it through the agent bank indicating the amount of the deposit to be returned
• Apply to the Arbitration Court

Turning to court cheated depositor can count on the return of the deposit in full, including interest on the deposit and for use, court costs.

Fraudulent activities bank are proved in court by documents on the deposit, financial documents.

Bank "Zapadny" has already been declared bankrupt. This means that deceived equity holders who were not paid additional compensation, who do not have time to file an application before February, must protect their rights through the arbitration court.

The deceived depositor must file a claim directly with OAO Bank Zapadny.

On the basis of the Law "On Shareholders" deceived investors cannot apply with claims to shareholders. It is itself responsible for the debts of society. Consequently, the application with demands from the deceived depositor will be addressed to Zapadny Bank.

Regarding the fraudulent actions of Zapadny Bank, checks may be carried out with the involvement of shareholders, but this has nothing to do with the return of deposits.

In order to return the deposit, the deceived equity holder can apply independently to the Arbitration Court. But for a more correct application and collection of documents, it will be more convenient to contact a lawyer.

Going to court will allow you to return the contribution and payment for the services of a lawyer, including.

In addition, after the court makes a positive decision to recover a certain amount from Zapadny Bank on account of the deceived depositor, it is most likely that it will not be possible to receive the money instantly.

The next stage, where the deceived depositor will need a lawyer, will be enforcement proceedings in order to enforce the court decision.

The collection of material, the initiation of criminal cases in relation to the fraudulent actions of Zapadny Bank will in no way affect the process of returning the deposit by the deceived depositor through the court. Both actions can happen at the same time.

But within the framework of the criminal process, the actions of the bank's shareholders can be regarded as fraudulent actions. Depending on the legal assessment of the situation, the actions of the bank in the person of shareholders can be qualified as fraudulent actions, since there are deceived depositors who have suffered damage.

Important! For all questions of deceived depositors, if you do not know what to do and where to turn:

Call 8-800-777-32-63.

Lawyers for dealing with deceived depositors, and lawyers who are registered on Russian Legal Portal, will try to help you from a practical point of view in the current issue and advise you on all issues of interest.

We present to your attention the first in 2017 review of judicial practice in bankruptcy disputes. Traditionally, the review included both cases considered by the Supreme Court (with some of them included in the Judicial Practice Review No. 1 (2017), approved by the Presidium of the Supreme Court of the Russian Federation on February 16, 2017), and cases of district arbitration courts. From the review, in particular, you can find out the fate of the arrest bond in bankruptcy, as well as how to protect yourself from controlled bankruptcy and what requirements a settlement agreement must meet.

I. Creditor protection

The creditor has the right to repay the claims of creditors who initiated the bankruptcy procedure in order to avoid the appointment of a manager controlled by such creditors

Determination of the SCES of the Armed Forces of the Russian Federation of January 25, 2017 No. 305-ES16-15945 in case No. A41-108121 / 2015, was discussed on Zakon.ru

The Economic Collegium of the Supreme Court has formed criteria for determining the legality of repaying the claims of creditors who initiated bankruptcy proceedings. In this case, the initiators of bankruptcy were the debtor's employees, and another creditor, a third-party organization, repaid their debt by depositing money on a notary's deposit.

The judges of the second cassation noted that the creditor's interest lies in the most complete repayment of his claims at the expense of the debtor's property. It is to achieve this goal that the creditor uses the mechanisms provided by law, in particular the possibility of the first applicant to propose candidates for an arbitration manager or a self-regulatory organization of managers.

When repaying the debt of other creditors, the creditor is obviously acting economically unreasonably. However, in the present case, this behavior was due to the fact that there were quite serious concerns about conducting a controlled bankruptcy.

Thus, one of the applicants was previously the general director of the debtor, and all real estate objects were sold on the eve of bankruptcy. Moreover, the application for declaring the debtor bankrupt was submitted by the applicants before the entry into force of the relevant decisions on the collection of debt on the payment of severance pay. In such a situation, the repayment of the debt (severance pay of employees) of the initiators of the bankruptcy was protective in nature and was permissible, even despite the special nature of such debt.

The accumulation of debt is the bad faith behavior of the debtor

Consistent assumption of obviously unfulfillable obligations (increase in debt) is recognized as bad faith behavior of the debtor. Such behavior is the basis for refusal to apply the rules on the release of a bankrupt from the performance of obligations to creditors.

II. Rights of secured creditors

Arrest bond does not provide the creditor with advantages in a bankruptcy case

Determination of the SCES of the Armed Forces of the Russian Federation of January 19, 2017 No. 301-ES16-16279 in case No. A11-9381 / 2015, was discussed at Zakon.ru

The Supreme Court put an end to one of the most controversial issues: does the arrest bond (seizure of the bankrupt’s property imposed on the basis of paragraph 5 of Article 334 of the Civil Code of the Russian Federation) provide the claimant with advantages over other creditors in a bankruptcy case? The second cassation decided the issue not in favor of the claimant.

In particular, the ruling of the Supreme Court notes that with the introduction of a ban on the alienation of property, a full-fledged pledge does not arise - the literal content of paragraph 5 of Article 334 of the Civil Code of the Russian Federation allows us to come to this conclusion.

In addition, the lack of all the rights of the mortgagee of the creditor, who has achieved a ban on the alienation of property, is explained by the specifics of bankruptcy cases. The Bankruptcy Law, according to the second cassation, does not contain provisions on the privileged position of the person in whose favor the arrest was imposed. On the contrary, legal relations connected with bankruptcy are based on the principle of equality of creditors.

Clarification of the price of the pledged property does not allow the secured creditor to apply to the court with a request to increase the amount of claims secured by the pledge

Determination of the SCES of the Armed Forces of the Russian Federation of December 12, 2016 No. 310-ES16-10887 in case No. A08-6511 / 2014 (included in clause 18 of Review of Practice No. 1)

The Bank applied for inclusion in the register of creditors' claims as secured by collateral. When included in the register, the value of the subject of pledge was taken into account, which was established in the court decision on the recovery of the debt and on the foreclosure of the pledged property. However, after the arbitration manager assessed this property, it turned out that it cost twice as much, and the bank applied to the court to amend the register of claims in order to increase the amount of claims secured by collateral.

The Supreme Court of the Russian Federation upheld the arbitration court of the district, which, canceling the acts of lower courts, refused to satisfy the bank's application. The second cassation noted that the estimated value of the property, on the basis of which the creditor is included in the register, is of an accounting nature. In this case, the debtor's obligation is recognized as a secured pledge in full and does not depend on the appraised value. Of course, with the exception of those cases when the pledge ensured the fulfillment of the obligation in part. Therefore, the volume of actually repaid claims of the secured creditor depends only on the proceeds received in the course of the sale of property, and is not limited by the estimated value of the collateral.

In such a case, the creditor shall not take measures to change the accounting estimated value of the subject of pledge included in the register of claims of the pledger's creditors, depending on the actual sale price of the subject of pledge. The relevant actions of the arbitration manager shall be carried out independently, without going to court.

III. settlement agreement

Settlement agreement, the terms of which are not economically justified, is not subject to approval

Determination of the SCES of the Armed Forces of the Russian Federation of December 19, 2016 No. 305-ES15-18052 (2) in case No. A41-69762 / 14 (included in clause 17 of Review of Practice No. 1)

The Economic Collegium of the Supreme Court, considering one of the cases, formed the criteria that must be met by an amicable agreement concluded in the course of a bankruptcy case. Thus, the panel of judges recalled that the conclusion of a settlement agreement is aimed at a fair and proportionate satisfaction of the claims of all creditors by restoring the debtor's solvency. At the same time, it is obvious that the conclusion of a settlement agreement is always associated with the subordination of a minority of creditors to the majority due to the fact that it is impossible to reach a consensus on the terms of the agreement. However, a settlement agreement cannot be adopted arbitrarily.

Each of the creditors, concluding an agreement, expects to receive more than what he would have received in the distribution of the bankruptcy estate. This is the legitimate interest of the creditor. And although the conclusion of a settlement agreement does not guarantee the unconditional achievement of this result, this does not relieve the court from the obligation to refuse to approve those agreements that will not lead to such a result already at the stage of conclusion. So, in the case under consideration, the debtor, having a greater number of votes, offered to pay off the debt at the expense of the funds that were on the deposit account of the bank in the liquidation stage.

Therefore, the court should find out for what purpose the amicable agreement is concluded: to restore the debtor's solvency, including satisfaction of creditors' claims, or for a purpose that does not correspond to the purpose of such an agreement. In any case, a settlement agreement, the terms of which are not economically justified, is not subject to approval.

The creditor has the right to demand the issuance of a writ of execution, regardless of the violation of the terms of the settlement agreement, if within the framework of such an agreement the debtor has decided to reorganize

The corresponding legal position of the SCES of the Armed Forces of the Russian Federation was expressed in the ruling dated November 28, 2016 No. 303-ES16-10969 in case No. A51-16969 / 2015 (included in paragraph 19 of Review of Practice No. 1)

The panel of judges noted that the creditors of any debtor in the event of its reorganization have the right to demand early performance of obligations. The same guarantees provided by paragraph 2 of Article 60 of the Civil Code of the Russian Federation also apply to the creditors of a debtor who has entered into an amicable agreement in a bankruptcy case. However, in this case, creditors must apply to the court with a request to issue a writ of execution for the amount of debt not repaid by the debtor, and not demand early performance of the obligation - this is the appropriate method of protection.

The settlement agreement, according to which all the property of the debtor passes to the creditor, is not subject to approval by the court, since the purpose of the agreement is to restore the debtor's solvency

IV. Register of creditors' claims

When included in the register, you can claim a penalty, even if it has not been filed before

Determination of the SCES of the Armed Forces of the Russian Federation of January 23, 2017 No. 305-ES16-10886 in case No. A40-38734 / 2015

The application by the creditor in the bankruptcy case of the developer, in addition to claims for the transfer of residential premises based on a judicial act of a court of general jurisdiction, also claims for a penalty, which were not filed in a court of general jurisdiction, cannot be considered as an abuse of the right. According to the Supreme Court, such procedural conduct is a valid option for disposing of the right to collect financial sanctions.

The occurrence of debt under international supply contracts is confirmed in accordance with the customs of international trade

Determination of the SCES of the Armed Forces of the Russian Federation of January 19, 2017 No. 305-ES16-13630 in case No. A41-52145 / 2015

The fact of the debtor's obligation to pay for the goods under an international supply agreement when considering an application for inclusion of claims in the register of claims must be confirmed in accordance with the customs of international trade. In the dispute under consideration under the terms of Incoterms-2010, the fact of the fulfillment of the seller's obligations and the emergence of the buyer's obligation to pay for the goods had to be confirmed by a bill of lading.

The liquidation of a bankruptcy creditor is not grounds for deleting its claim from the register. The issue of excluding such a requirement can be resolved at the stage of distribution of funds between creditors.

V. Challenging the debtor's transactions

Establishment of unequal provision when challenging transactions

Determination of the SCES of the Armed Forces of the Russian Federation of January 30, 2017 No. 305-ES16-12827 in case No. A40-121454 / 2012

When considering a case on contesting transactions on the basis of unequal consideration, it is necessary to assess not only the amount received by the debtor, but also to establish the actual amount of what the debtor should have received.

The limitation period for the vindication claims of the company when appointing a bankruptcy trustee does not start to run again

When checking the validity of including a claim in the register, the court should examine the primary documents, since contracts and reconciliation acts by themselves do not prove the fact of debt

VI. Arbitrator

If the monitoring procedure is introduced after the adoption of a judicial act on any dispute of the debtor, then the interim manager may be a participant in the appeal of such a judicial act.

Question 2 "Clarifications on issues of judicial practice" of the Review of the judicial practice of the Armed Forces of the Russian Federation No. 1

A company that is on the verge of bankruptcy may be a party to various legal proceedings. And it is possible that the monitoring procedure will be introduced after the court of first instance on one of these disputes adopts a judicial act. In this case, the interim manager may intervene in the case at the stage of appeal proceedings, having the rights and incurring the duties of a person participating in the case. At the same time, the appellate court admits the manager to the process without canceling the appealed judicial act and without proceeding to the consideration of the case according to the rules of the court of first instance.

The bankruptcy creditor's filing of a complaint against the trustee after the ruling on the completion of the bankruptcy proceedings is not a basis for terminating the proceedings on such a complaint

The presence of a judicial act that has entered into legal force on the improper performance of duties by the arbitration manager is the basis for recognizing the case as an insurance event, and not for the emergence of the right of recourse of the insurer to the manager

VII. Bankruptcy of citizens

In itself, the absence of property from the debtor is not an abuse of the right

Determination of the SCES of the Armed Forces of the Russian Federation of January 23, 2017 No. 304-ES16-14541 in case No. A70-14095 / 2015

Failure to write off debts to an unscrupulous debtor establishes a balance between the social and rehabilitation goal of consumer bankruptcy, achieved by writing off unsustainable debt obligations of a citizen, and the need to protect the rights of creditors. Nevertheless, the mere fact that an individual does not have property cannot be regarded as an abuse of his right to conduct bankruptcy proceedings and should not lead to termination of the proceedings. In this case, the bankruptcy procedure may be financed by a third party.

VIII. Procedural issues

The burden of proving the existence of valid reasons for the failure to provide accounting documentation lies with the director of the debtor

The availability of accounting documents (reporting) from the head of the debtor is assumed and is a mandatory requirement of the law. Therefore, the head of the debtor is obliged to prove the existence of valid reasons for the non-submission of documentation.

In addition, the condition for bringing the head to subsidiary liability is the concealment by him of the facts of insolvency and / or insufficiency of property in relation to persons, obligations to which arise after the expiration of a month from the moment when, by virtue of law, an application for bankruptcy of the debtor must be filed with the court.

It is not required to provide a ruling on the issuance of a writ of execution for the enforcement of an arbitration court decision when included in the register of creditors' claims - the decision itself or a copy of it is sufficient

Resolution of the Arbitration Court of the Moscow District dated January 12, 2017 in case No. А40-27567/15

In the event of cancellation of judicial acts on declaring the debtor bankrupt, the court leaves without consideration the application of the creditor on declaring the debtor's transactions invalid on the basis of Articles 61.2, 61.3 of the Bankruptcy Law, and does not terminate the proceedings

If at the time of termination of the contract the lessor had the balance of the advance payment, and the lessee had a debt on current lease payments, then such amounts are subject to offset, and such a “set-off” does not affect the order in the bankruptcy case