Recognition of cession invalid. Assignment of claim in bankruptcy. Challenging the assignment agreement. The practice of invalidating cession.
Assignment or assignment of a claim is a way of changing persons in a contract. The number of court cases related to contesting the assignment, including in the framework of bankruptcy proceedings, in the courts for a rather long period of time remains significant.
The Insolvency Law contains a number of special rules to challenge a transaction in bankruptcy. These grounds make it possible to dispute transactions even subject to their form, terms of retribution and other conditions contained in the Civil Code of the Russian Federation.
The main arguments for the invalidity of the assignment agreement are: the conclusion of a transaction under insolvency conditions; gratuitousness of the contract arising from the technical nature of the banking transaction; priority position of the assignee's requirements in comparison with other creditors; unequal counter-provision - i.e. circumstances that are the subject of evidence in contesting transactions in a bankruptcy case. Consider the particulars of contesting the assignment agreement by the example of judicial acts in the case No. A27-22402 / 2015.
The plot of the case:
Kuzbasenergo JSC ceded to MP SSK the right to claim debt to MP GTK. The execution of the contract by the MP “SSK” occurred through independent transactions. As a result of fulfilling the obligations of MP “SSK” in favor of “Kuzbasenergo” JSC, claims were transferred to JSC “Kuznetsk TPP” and to the Committee for Housing and Communal Services, part of the debt was repaid through offsetting.
Duduk LLC, Stroygrad LLC, in the framework of the bankruptcy case of MP “SSK”, filed a statement declaring the execution of the assignment agreement of MP “SSK” in favor of JSC “Kuzbasenergo” non-compliant with the law, and applying the consequences of invalidity in the form of recovery from the latter in favor of MP "SSK" cash. Similar requirements were also addressed by the Federal Tax Service, LLC Siberian Energy Company.
By the definition of the AC of the Kemerovo region dated 03.22.2019, the joint application was refused. The trial court considered that the creditors had not proved the totality of the grounds provided for in paragraph 2 of Art. 61.2 of the Bankruptcy Law, for declaring a contract invalid, in view of its conclusion beyond the three-year period preceding the filing of an application for declaring a debtor bankrupt.
The ruling of the appeal upheld the determination.
The Federal Tax Service and Siberian Energy Company LLC filed a cassation appeal. In substantiating the complaint, its submitters pointed out that the contract of assignment and the execution of it were completed with an unlawful purpose aimed at withdrawing the property of the debtor, to the detriment of the interests of creditors. The courts did not take into account that on the date of execution of the contract the debtor met the sign of insolvency, the totality of the conditions provided for in paragraph 2 of Art. 61.2 of the Bankruptcy Law.
The cassation overturned the adopted judicial acts.
Judicial act: Resolution of the Arbitration Court of the West Siberian District of September 3, 2019 in case No. A27-22402 / 2015
Court findings:
1. The legislation provides for a legal mechanism to challenge transactions concluded with the aim of harming the rights of creditors. Such transactions may be invalidated on the basis of the Civil Code of the Russian Federation and the Bankruptcy Law. As a general rule, a transaction concluded solely with the intention of harming another person is committed with abuse of right and is qualified as invalid under Articles 10 and 168 of the Civil Code of the Russian Federation.
At the same time, the Bankruptcy Law has established special grounds for contesting transactions concluded by the debtor in order to harm the rights of creditors. Such a transaction is disputable and may be declared invalid by the court under paragraph 2 of Art. 61.2 of the Bankruptcy Law, which establishes the signs to be established (unlawful purpose, harm to the rights of creditors, knowledge of the other party about the specified purpose of the debtor), as well as presumptions that equalize the procedural capabilities of the parties to a separate dispute.
2. In this case, the norms of Art. 10 and 168 of the Civil Code of the Russian Federation are not subject to application, but the special provisions of the Bankruptcy Law are subject to application. Based on the flaws of the disputed transactions declared by the creditors, the courts have not reasonably applied general provisions on nullity (abuse of rights) to suspicious transactions that do not have other shortcomings. The courts rightly noted that there was no three-year period of suspicion (a disputed agreement was concluded in 2012).
3. The applicants disputed not the contract itself, but transactions related to its execution. The design of the disputed transactions indicates the existence of a scheme aimed at repaying the debt of MP GTK to JSC Kuzbasenergo, in the event of insolvency of MT GTK, at the expense of the property of the debtor, and, as a result, bringing it to bankruptcy as a result of transactions it has committed repayment of debt in the absence of any economic feasibility of acquiring claims at par.
There was no benefit from the fulfillment of the acquired claim right, because according to the results of the bankruptcy procedure of MP “GTK” the debtor's claims were satisfied in the amount of 0.05% of the amount included in the register.
4. The circumstances that the debtor had debt obligations to other creditors and the budget during the execution period under the contract of assignment by the courts were not clarified, the arguments about the unlawful purpose of concluding disputed transactions to the detriment of the interests of creditors were not analyzed; the courts did not investigate whether the debtor was aware of the real financial condition of MP “GTK” when the parties were affiliated.
Comments:
1) In the case under review, the court has formed an important approach on the recognition of concessions and the execution thereof invalid. Previously, the courts made decisions according to which both the assignment and the execution were to be disputed as a single transaction.
2) When contesting a debtor’s suspicious transaction, it is assumed that the creditor that is a party to this transaction is an unscrupulous person, since the information on the recognition of the debtor as bankrupt is well known, therefore, the creditor knew that other creditors were injured by the conclusion of this transaction.
3) The basis for contesting the transaction is not only unequal counter-performance on it, but also the formal establishment of equal execution, provided that the creditor knew that the debtor was unable to fulfill the obligation due to insufficient property.
4) The inequality of the counter performance may be expressed in such actions as: assignment of the right of claim at face value with an overdue performance of the obligation; lack of security; doubtful possibility of recovery due to the debtor being in bankruptcy proceedings, etc.
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