Bankrupt tourism. Change of residence of the debtor. Transfer of bankruptcy case under jurisdiction. Debtor's bad faith.
The jurisdiction of cases of insolvency of a citizen, as a rule, is determined by the place of residence of the debtor, which is the place where the person permanently or predominantly resides (Article 20 of the Civil Code of the Russian Federation). Naturally, such a definition does not always allow us to determine with certainty the place of residence of a citizen, especially when the debtor intentionally creates the appearance of a different place of residence. Meanwhile, changing the place of residence of the debtor puts his creditors in a vulnerable position and gives him opportunities for various abuses.
The plot of the case:
Creditors of the debtor - the head of the peasant (farm) farm (peasant farm) published in the register of the Unified Federal Register of information on the facts of the activities of legal entities a message of intent to appeal to the AC of Moscow with a statement of insolvency of the debtor. The next day, the debtor filed an application to terminate the status of the head of the peasant farm, and then deregistered in Moscow and registered in the Stavropol Territory. A week after that, he applied to the AC of the Stavropol Territory with a declaration of bankruptcy.
The court of first instance decided to transfer the case on jurisdiction to the AC in Moscow, since it considered that the actions of the debtor were an abuse of the right and aimed at artificially changing the jurisdiction of the dispute.
The court of appeal did not agree with this approach, referring to the position of the Armed Forces of the Russian Federation, according to which when considering the jurisdiction of a bankruptcy case, it is necessary to take into account the place of registration of the citizen debtor at the place of residence.
However, the judicial board of the Armed Forces of the Russian Federation expressed solidarity with the court of first instance, leaving its determination to transfer the case in force.
Judicial act: determination of the IC on economic disputes of the RF Armed Forces of 03/21/2019 in case No. A63-9583 / 2018 [308-ES18-25635]
Court findings:
1. The place of registration of a citizen debtor is of key importance in determining the jurisdiction of a bankruptcy case, since it is also assumed to be the place of residence. However, in exceptional cases, this presumption can be refuted if it is proved that the registration data are not true, and the actions of the debtor to change the address are unusual behavior.
2. The closer the date of the change of registration registration address to the time of bankruptcy proceedings, the higher the probability of unfair behavior of the debtor and the easier the burden of proving the validity of the change of residence.
3. From the citizen’s behavior to change the address and terminate the status of peasant farms, as well as their subsequent bankruptcy petition, it follows that the actions of the debtor were directed to appeal to the court earlier creditors who, unlike the individual debtor, were forced to publish a message of their intention apply to court before initiating proceedings. This behavior is unscrupulous, which is confirmed by the fact that the debtor did not notify creditors of his move.
4. The owner of the home ownership in the Stavropol Territory confirmed that the debtor at the new registration address is listed formally, in fact, does not live there. Most of the property, creditors and legal entities with which the debtor has corporate relations are located in Moscow. Thus, the previous place of registration is the main place of business of the debtor, the center of gravity of its economic interests.
5. The approach of the court of appeal is unnecessarily formal and encourages dishonest debtors to “bankrupt tourism” - an artificial change of residence in order to change the territorial jurisdiction of the bankruptcy case to create difficulties for creditors.
Comments:
1) The intent of the debtor was to seize the initiative in the bankruptcy case. The first appeal to the court would allow him to choose a loyal SRO of arbitration managers, and changing the region of conduct of the case would make it difficult for lenders to receive information about the case, as well as their participation in it.
2) The debtor did everything to show his dishonesty. Each action in itself raises suspicions, but their execution one after the other almost immediately after the application by the lender did not leave any chances to uphold the sincerity of intentions to move.
3) Place of residence - this is a matter of fact, which must be established taking into account all circumstances. The law establishes that citizens are supposed to live at their place of registration, since violation of this rule may result in administrative liability. However, it is not clear why the Armed Forces of the Russian Federation speaks about the possibility of refuting this presumption only in exceptional cases, since cases when a citizen does not live in the place of “registration” are by no means uncommon, because liable for this is extremely rare.
4) The criterion of economic gravitation is interesting, but not controversial. A conscientious person may well live in a different region than the region where his economic center is located, managing assets remotely or indirectly. Moreover, this is true when a citizen just made a move, not yet having time to transfer assets.
5) It is noteworthy that the courts qualified the actions of the debtor as an act of abuse of law. This category is provided for by the Civil Code of the Russian Federation, however, the procedural legislation does not indicate either the term “abuse of the right” or the consequences of such unfair behavior. The arbitration practice of recent years rejects the formal approach to cases, referring, if necessary, to general legal principles, which can only be supported.
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Dmitry Podgorny, legal analyst
