Violation of the bidding procedure. Violation of the bidding procedure. Challenging bidding results. Challenging tenders in bankruptcy proceedings.
The acquisition of real estate, like any other property, can be due to various reasons: expanding an existing business, opening a new business direction (rent), investing money (investment).
The purchase of buildings and structures, as well as the land on which they are located, can be carried out in a variety of ways:
1. Purchase negotiations with the immediate owner;
2. Contacting a real estate agency;
3. Offsetting the debt of the counterparty;
4. Purchase at auction (seized property, bankrupt property, etc.).
The first and second points exclude almost all risks, however, the verification of acquired objects must be carried out on their own.
Offsetting the counterparty's debt may entail different views on the value of the acquired (and, accordingly, sold) object, which subsequently leads to litigation.
The acquisition of real estate at auction, including that owned by a bankrupt company, is complicated by the fact that this is a statutory procedure, that is, the purchase process is formalized, unlike the previous methods.
To participate in the process of acquiring the property of a bankrupt company, you must have a digital signature, register at the appropriate site, make a deposit and observe all the details of the procedure.
It is worth noting that, participating in tenders, you can purchase either one building or one site, or a complex: a site with buildings and structures located on it in the form of a production site ready for operation.
The plot of the case:
A participant in the auction for the sale of property of a bankrupt company appealed to the court to invalidate the bidding and the warehouse purchase and sale agreement concluded in the city of Krasnoyarsk.
The property was sold by a specialized organization on the basis of an agreement signed between the interim manager of a bankrupt company and the specified organization. Initially, there were three total bidders (one did not meet the requirements of bankruptcy law and did not participate in the auction later). As a result of bidding, the winner (the second of two participants) entered into a contract of sale of the warehouse building.
The sole creditor of the bankrupt company at the general meeting of creditors decided to withdraw the object from bidding at a time when information about its sale was already posted on the official site. Information about the removal of the lot from the auction was published much later.
According to the results of the auction, which was held, the winner was ready to purchase property at a price that exceeded the original price of 300,000 rubles, which is why the contract of sale was concluded.
The second bidder, having read the information about the removal of the lot from the auction, did not take part in them. It began to dispute the results of the auction when information about the winner of the auction was posted on the site due to the fact that, being misinformed, it stopped participating in the procedure. The court invalidated the bidding and their result.
Judicial act: Resolution of the Arbitration Court of the East Siberian District of June 19, 2019 in case А33-13045 / 2011
Court findings:
1. The court found a significant violation of the procedure for holding an auction for the sale of a building in a situation where information about tenders is replaced by the removal of property from the sale, while the auction is held with one participant who subsequently acquires the property.
2. The court took into account that the second bidder was misled by the actions of the auction organizers, expressed in the inconsistency of the information posted on the site for the auction.
3. The court found that the second bidder was deprived of the right to participate in the auction, in expressing his vision regarding the cost of the building and its readiness to purchase the building at that cost.
4. The court indicated that tenders can only be considered valid if there is no infringement of the rights of their participants and full compliance with the procedure established for a particular type of tender.
5. The court found that in the situation in question the rights of not only the auction participant, but also all potential participants who were acquainted with the information on the removal of the lot from the auction, were violated.
6. The court did not take into account the argument of the external manager regarding the building cost, which the winner of the auction was ready to purchase, for the creditor.
Comments:
1) The actions of all parties to the auction: the bankrupt company, manager, intermediary, as well as bidders must comply with the legislatively established procedure for conducting tenders.
2) In case of violation of the order, infringement of rights, misinformation, tenders may be declared invalid and, therefore, the contract for the sale of property will also be invalid.
3) The situation under consideration can be due to both inconsistency of actions of the interim manager and the intermediary company, and deliberate actions when the one who should win according to someone else’s plan wins the auction.
4) In this case, the only protection for the bidder is judicial protection: it is necessary to invalidate the bidding itself and the contract of sale.
5) In addition to violating the rights of the auction participant, the rights of bankrupt companies are also violated in this situation: if the lot had not been withdrawn from the auction, the probability of expanding the composition of their participants would be great, and the property could possibly be sold for a large cost.
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.
In the event that your litigation or other dispute, contractual work or any other form of activity concerns the issues discussed in this or our other material, we recommend checking and making sure that your legal position complies with the latest changes in practice and legislation.
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Elena Mironova, legal analyst. Blonde. I love pink. Like pop music. I give preference to bankruptcy litigation, loans.
