Recognition of transactions invalid in bankruptcy. A suspicious bankruptcy transaction is disputable or void. Invalidation of a loan agreement. Challenging the transactions of a debtor in bankruptcy.
It is no secret that before initiating bankruptcy proceedings, the owners of a potential bankrupt extract more or less valuable property, as a result of which it becomes impossible to form a bankruptcy estate and satisfy the demands of creditors. In order to eliminate this problem, the concept of “suspicious transactions” has been introduced, which are considered transactions concluded by the debtor with the intention of causing harm to creditors, as well as providing for unequal counter-performance of obligations.
When establishing the signs of suspiciousness of the transaction, the arbitration manager must apply to the court with a claim to invalidate such a transaction. As practice shows, the contestation of suspicious transactions of the debtor often allows you to significantly increase the bankruptcy estate or even form it completely, which means that lenders are able to satisfy their requirements.
The main feature when disputing transactions in accordance with paragraphs 1.2 of Art. 61.2 of the Federal Law "On Bankruptcy" (special rules) is that at the time of conclusion of the contract the debtor was not solvent or the property was clearly not enough. However, the Supreme Court of the Russian Federation came to different conclusions.
The plot of the case:
Shortly before the initiation of bankruptcy proceedings, the debtor entered into an agreement with the Bank for the acquisition of the right of claim to the JSC under the agreement on opening a credit line between the Bank and the JSC. On the same day, the assignee (debtor) and the Bank (assignor) entered into an assignment agreement, under the terms of which the assignor ceded the assignee the right to claim against the joint-stock company.
Then, between the debtor and the Bank, an agreement is concluded on the provision of a loan to replenish working capital and the acquisition of a claim under a loan agreement between the Bank and AO. On the day the contract was concluded between the assignee and the assignor, an assignment agreement was concluded with respect to the Bank's requirements for JSCs under the guarantee of individuals.
The bankruptcy trustee of the debtor filed a lawsuit regarding the invalidation of all concluded agreements and on the application of the consequences of the invalidity of transactions.
The applicant referred to the provisions of paragraph 1 and paragraph 2 of Article 61.2 of the Federal Law "On Insolvency (Bankruptcy)" dated October 26, 2002 No. 127-ФЗ, Articles 10, 168, 170 of the Civil Code of the Russian Federation.
The court of first instance issued a ruling on the refusal to satisfy the requirements, in which it indicated that the bankruptcy trustee did not provide evidence of the disparity of the disputed contracts. The applicant’s arguments are presumptive, the debtor lacked solvency and insufficient property at the time the disputed transaction was completed, and the bank did not prove the bank’s information about the debtor’s purpose (suspicious transaction). The Bank is not interested in relation to the debtor.
In addition, the presence at the time of conclusion of the contract of signs of lack of solvency or insufficiency of property in the absence of other conditions is not enough to recognize transactions invalid. The absence of a financial interest in the debtor does not indicate the existence of a goal of causing harm to the debtor's creditors at the bank. Thus, the special grounds for declaring disputed transactions invalid are not subject to application.
The appeal and cassation agreed with the findings of the trial court. However, the Russian Armed Forces sent the case for a new review.
Judicial act: Determination of the Supreme Court of the Russian Federation of 05.30.2019 No. 305-ES19-924 (1,2) in case No. A 41- 97272/2015
Court findings:
1. The courts should have had reasonable doubts as to whether the debtor received a counter-performance that is of equal value, when a judicial act was issued, it was necessary to check the arguments of the bankruptcy trustee, who referred to the interconnectedness of the disputed transactions, believing that the purpose of the parties' actions was to conclude an agreement on the transfer of debt with the joint-stock company , which is unable to repay the loan to the Bank, the Bank and the debtor covered up the alienation of the bank's illiquid asset in exchange for a more real and asset, which can lead to actual deprivation of the ability to meet the requirements of other creditors.
2. One of the components of the presumption of the purpose of causing harm when contesting a transaction under paragraph 2 of Art. 61 of the Federal Law "On Bankruptcy" is the lack of solvency or insufficiency of property at the date of conclusion of the contract, but the failure to provide evidence of their existence does not indicate that the transaction is not suspicious if the transaction was completed during the period of suspicion. The period of suspicion is the period of transactions immediately before and within one month after the initiation of bankruptcy proceedings. The position of the Armed Forces of the Russian Federation is based on the clarifications of the Plenum of the Supreme Arbitration Court of the Russian Federation dated December 23, 2010 No. 63, which the courts did not unreasonably apply.
3. Courts should be able to verify the bankruptcy case. In the absence of such verification, the findings of the courts on the equivalent provision in the disputed transactions are premature.
Comments:
1) To qualify a suspicious transaction as invalid, it is necessary to justify the existence of a combination of certain circumstances, and the absence or unprovenness of even one of them will cause a refusal to satisfy the requirements. These circumstances include, first of all, the purpose of the transaction - damage to property rights of creditors. Such a goal is implied if two conditions are present - signs of insolvency and insufficiency of property, and the transaction itself meets the signs provided for in clause 2 of art. 61.2 of the Federal Law "On Bankruptcy".
2) The presumption provided for by the Federal Law “On Bankruptcy” suggests that the other party to the transaction knew that the purpose of the transaction was to harm the property interests of creditors, if that party was recognized as an interested person, or if it knew (should be aware) about infringement of the interests of the creditors of the debtor or of signs of insolvency or insufficiency of the property of the debtor. However, this presumption is rebuttable and applies unless otherwise proved by the other party to the transaction.
3) The basis for contesting the transaction is not only an unequal counter-execution on the transaction, but also equivalent execution if the creditor knew that it would be impossible to fulfill obligations due to insufficient debtor property. The inequality of the counterclaim within the framework of the assignment of rights to claims is most often expressed in the assignment of the claim at the nominal value with the delayed performance of the obligation, the absence of security, the dubious possibility of recovery due to the debtor being in the insolvency (bankruptcy) procedure, the insolvency of the drawer when replacing the obligation with novation.
4) Until recently, in the absence of evidence confirming the insolvency of the guarantor (debtor) at the time of the conclusion of the contract, the courts often refused to satisfy the requirements to challenge the contract.
5) In the case under review, the RF Supreme Armed Forces again indicated: even if at the time of the transaction insolvency or insufficiency of property was not proved, the transaction can be considered suspicious. Earlier, the Armed Forces of the Russian Federation in the Decision of the Judicial Board for Economic Disputes of the Armed Forces of the Russian Federation dated 12.03.2019 N 305-ES17-11710 (4) in the case N A40-177466 / 2013 already set forth similar conclusions.
6) It should be noted that the courts began to use this position of the Armed Forces of the Russian Federation, for example, the Moscow District Arbitration Court in Resolution of 11.06.2019 N Ф05-1060 / 2018 in the case of N A40-148779 / 2016 satisfied the applicant's claim, citing, inter alia, by Definition No. 305-ES-16-924 (1, 2).
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