Deposits in bankruptcy. Inclusion in the register on deposit. Conclusion of a bank deposit agreement. The procedure for concluding a bank deposit agreement.
In case of bank insolvency, a huge array of claims arises from agreements related to lending activities, in particular, deposit agreements. Such creditors, who failed to timely fulfill their requirements for a credit institution, are subject to inclusion in the register of creditors' claims and can expect to receive money on a common basis. However, courts often refuse depositors to include their claims in the register, recognizing them as invalid, and the corresponding agreement not concluded, in the event that the actions of the creditor cannot be considered reasonable and bona fide.
Determining the reasonableness of the behavior of an individual investor can cause problems, since the same standards should not be set for their behavior as for professional participants in the turnover.
The plot of the case:
In the framework of the Bank's insolvency case, one of its creditors (individual - depositor) requested that their claims, based on foreign currency deposit agreements with the debtor, be included in the register of creditors' claims.
The courts of three instances refused the applicant, referring to the lack of evidence of conclusion of agreements, since the Bank does not have copies of these agreements or similar agreements with other depositors, while the cash receipts submitted by the creditor confirm the transfer of funds not to the creditor's account, but to the accounts of other persons. The lender himself did not prove the availability of financial ability to deposit the appropriate funds into the account. Thus, the depositor acted unreasonably and in bad faith when concluding agreements, and in reality, bank deposit agreements were not concluded.
The Supreme Court of the Russian Federation took a different position and sent the dispute to a new consideration.
Judicial act: determination of the IC on economic disputes of the Armed Forces of the Russian Federation of 04.25.2019 in case No. A40-69103 / 2016 [305-ES17-10167]
Court findings:
1. It is necessary to investigate the good faith and reasonableness of the behavior of a citizen depositor by establishing the conditions for concluding a contract, the availability of necessary powers for signatories, registration of making a deposit, the source of funds, etc.
2. The courts did not check the depositor's objection about the circumstances of the conclusion of the contracts: the creditor came to the Bank’s building personally, the contracts were signed by the Director of the Bank in the presence of the depositor, and earlier similar contracts were duly executed by the Bank. The depositor had no reason to doubt the authority of the person who introduced himself as the director of the Bank and who occupied the corresponding cabinet.
3. For a reasonable investor, it would be sufficient to receive a document that is executed in confirmation of the deposit in accordance with banking customs, in particular, a receipt cash order.
4. In the cash receipt orders, the names of the recipients of the money deposited by the depositor are not indicated, there are only ambiguous numbers of the deposit accounts themselves. The courts did not indicate what actions a bona fide investor should have taken to make sure that the funds were credited to his account.
5. The reference of the courts to the fact that the Bank does not have copies of agreements with the depositor, but the account was not opened in his name, is illegal, because these circumstances cannot discredit the creditor's conduct, since they are not related to his actions and will.
6. The absence of copies of agreements in the Bank may indicate various circumstances: concealment of documents by the former management of the debtor, failure to submit documents to the bankruptcy trustee, etc. Accordingly, the conclusion of the courts that the contracts were not concluded could not be made before refuting the evidence presented by the creditor in support of their conclusion.
7. The reference of the courts to the inconsistency of the deposit agreements with the standard form is inappropriate, since the creditor’s objection that the form of the agreements concluded with him has not changed since 2002 and was applied in relations with some other investors is not verified. As a general rule, a bank client cannot be obligated to correlate the proposed contract form with the standard one;
8. In support of the financial ability to contribute money to the deposit, the lender submitted cash disbursement warrants to close previous deposits, and also referred to the fact that he had occupied leadership positions in a number of large commercial organizations;
9. Thus, the courts established an excessively strict standard of prudence in concluding contracts for citizen investors, which did not meet the objectives of legislative regulation.
Comments:
1) The lower courts unreasonably placed the burden of proof on the depositor, indicating that he had not been provided with convincing evidence of the conclusion of contracts. Evidence - the contracts themselves and cash receipts for the execution of contracts are available in the case file. The refutation of this evidence lies on the other side.
2) Critical attitude to the copies of the agreements submitted by the investor must be justified, and until this evidence is challenged or recognized as inadmissible (for example, as false), they cannot be ignored.
3) The conclusion of the courts that no agreements with the depositor have been concluded is premature in the conditions when the alleged absence of these agreements at the Bank can be explained in a different way, not contradicting the evidence presented to the depositors.
4) The fact that the Bank does not have copies of agreements with a depositor, in any case, cannot have negative consequences for this lender, if he does not have an affiliation relationship with a credit institution. Organizational internal problems should not determine the existence and content of the rights of external creditors.
5) Even if the person represented by the Director of the Bank is not really such or does not have the authority to sign deposit agreements on behalf of the credit institution, this will not discredit the reasonableness of the depositor’s behavior, but also the legal validity of the agreement in principle, since the authority of the lender’s counterparty was clear from the situation (Clause 1, Article 182 of the Civil Code of the Russian Federation).
6) In general, one can notice the tendency of arbitration courts to a more loyal attitude towards an individual entering into a relationship with a professional market participant, even if the citizen has experience in managing commercial organizations, and legal relations involve large amounts that require special care - even with the possible involvement of a specialist accompanying the transaction. In our opinion, lowering the standard of proof for all individuals without taking into account their individual characteristics (education, knowledge, experience) unreasonably puts them in a noticeably more favorable position compared to entrepreneurs.
Please note that the Law Firm "Vetrov and Partners" in 2018 was awarded the industry rating of Pravo.ru-300 law firms in the nomination "Arbitration Proceedings". This allowed us to enter the TOP-50 regional companies throughout Russia in this nomination.
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Dmitry Podgorny, legal analyst
