Recognition of a loan agreement as an imaginary transaction. Imaginary loan agreement: judicial practice. Loan agreement as an imaginary transaction. Challenging a loan agreement.
In anticipation of bankruptcy, debtors often try by all means to preserve at least part of their property. Various methods are used, in particular, the conclusion of imaginary money loan transactions with an affiliate creditor, which is then included in the register of creditors' claims, and the property received by it during bankruptcy proceedings ultimately remains with the unscrupulous debtor. As a rule, arbitration courts identify such schemes without difficulty, however, errors also occur that can be corrected only at the cassation court level.
The plot of the case:
Between individuals who previously conducted joint activities, a number of loan agreements have been concluded. Subsequently, the borrower was declared bankrupt, and one of its creditors requested the court to invalidate the transactions on the provision of loans by the debtor as completed with the aim of causing harm to the creditors.
The ruling of the arbitration court of the first instance, with which the appellate court agreed, denied the claims. The courts considered that the transactions were onerous, because the lender under the contract retains the right to demand the loan amounts granted, and this fact is not affected by the fact that the lender has not previously stated such requirements. The fact of the conclusion of transactions is confirmed by the agreements and receipts available in the case file, and the financial ability of the lender to provide loans follows from the expenditure cash warrant on the issue of these amounts from his current account. Thus, the disputed transactions are not imaginary and are not aimed at causing harm to the debtor's creditors.
The district court overturned the acts of lower courts and sent a separate dispute for a new consideration.
Judicial act: Resolution of the Administrative Court of the Moscow District of April 30, 2019 in case No. A40-243525 / 17 [Ф05-17989 / 2018]
Court findings:
1. The courts ignored the absence in the case file of originals or certified copies of disputed loan agreements. The fact that the study of contracts is not affected does not affect the fact that the originals are in the materials of another arbitration case.
2. During the year prior to bankruptcy, the parties to the loan agreements were interested parties, in fact, conducted joint activities. A simple partnership agreement was concluded between them without proper registration, which may indicate their dishonesty.
3. The lender issued regular loans in conditions of non-repayment of previously disbursed amounts, which implies his knowledge of the insolvency or insufficiency of the debtor's property.
4. The lender did not disclose the reasonable economic motives of the disputed transactions, and also did not file claims or claims for the return of borrowed funds.
5. The courts did not assess the fact that the transfer of funds was formalized by loan agreements, however, the amounts received were sent to deposits pursuant to a simple partnership agreement, which may indicate the feignedness or imaginary nature of the disputed transactions.
6. The objectives of the transactions were to formally increase the accounts payable under control with the aim of further reducing the number of votes of independent creditors in the interests of the debtor and its affiliates, as well as unreasonably obtaining the corresponding part of the bankruptcy estate at the expense of bona fide and independent creditors.
Comments:
1) One of the principles of arbitration proceedings is the principle of immediacy of the trial, which implies that the court must in each case personally examine the originals or proper copies of documents, which is especially true in bankruptcy cases, since the fact of the conclusion of a debtor's transaction cannot be confirmed only by recognition or disputing of this circumstances of the parties to the case.
2) The issuance of loans in conditions where previously issued similar loans by the debtor are not repaid, is not economically justified and represents the objectively unreasonable behavior of the lender. One of two conclusions can follow from this: or a deal is concluded only for a view, i.e. is imaginary or feigned, or such terms of the transaction are caused by special trusting relations of the parties to the contract. Whatever the answer in each particular case, this gives reason to believe that the debtor's counterparty knew about the purpose of causing harm to such a transaction.
3) The lower courts considered the agreements and receipts in obtaining loan amounts to be sufficient evidence of the loan. However, when transferring cash by the debtor, such evidence is not enough: the court needs to investigate the availability of the creditor’s financial ability to transfer the appropriate amount, establish what the funds were raised to and where they were directed to, whether they were reflected in tax reports, etc.
4) The possibility of issuing a loan cannot be confirmed only by withdrawing the corresponding amount from the bank account of the lender. If the loan is a fiction, the lender will not lose in his own property. Accordingly, if the lender formally withdrew money from the account, but it follows from the circumstances of the case that he still could not afford to transfer these amounts to someone (for example, when the lender does not have an actual source of income, and the remaining funds are not enough to provide him with long-term life), expenditure cash warrants for the issue of money are not sufficient evidence.
5) The lower courts did not take into account that the debtor could not explain where the funds received under the contract are located or where they were sent. Together with the lack of confirmation of the financial ability of the lender to provide the loan amount, this circumstance raises reasonable doubts about the real transfer of money on transactions.
6) The conclusion of lower courts on the reimbursable nature of the loan agreement is based on a misinterpretation of the law. Paid is such an agreement that provides for mutual obligations of the parties to the transaction, i.e. such benefits for which each of the parties relies upon entering into a contractual relationship.
The obligation of the borrower to return received under the contract cannot be considered as the interest of the lender, prompting him to issue a loan. A counter-provision by the borrower may be the payment of interest on the loan amount. However, regardless of the content of the texts of the loan agreements, the further absence of actions of the affiliated lender aimed at returning the issued amounts and interest due, allows us to talk about the fact that the loans granted are free of charge.
7) The position of the district court regarding the fact that a violation of the requirement to register the parties to a simple partnership agreement as an IP indicates a general dishonesty of these persons, including to other persons, is noteworthy. However, a violation of public duties (for example, on issuing IP, paying taxes and fees, etc.) hardly gives grounds for state stigmatization of persons as unscrupulous in everything, including in private law relations.
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Dmitry Podgorny, legal analyst
