Payment by the bank of funds to the arbitration manager

Analysis of the bank's obligation to pay money from a special bank account opened to reserve the amount of interest on the arbitration manager's remuneration: is the refusal lawful?

By virtue of the Federal Law “On Insolvency (Bankruptcy)”, an arbitration manager has the right to remuneration in a bankruptcy case, as well as to full reimbursement of expenses actually incurred by him in the performance of his duties in a bankruptcy case.

In this case, the remuneration in the bankruptcy case is paid to the arbitration manager at the expense of the debtor, consists of a fixed amount and the amount of interest. But who is the obligated person to pay this remuneration - the bank or the debtor? This issue was dealt with by the court in the present case.

Case plot:

During the procedure for the sale of the debtor's property, the financial manager used a special bank account to reserve the amounts of interest on his remuneration. Having applied to the bank with a demand for remuneration, the manager was denied the execution of this order.

The court satisfied the manager's claim for the recovery of remuneration and interest for the use of other people's money.

In the appeal, the bank indicated that the funds were not credited to the bank, but were in a special bank account of the debtor. Consequently, the bank is not a person that must return the disputed amount to the former financial manager at the expense of its own funds, since the bank account agreement does not contain the obligation to return funds from the bank's own funds credited to the accounts of its individual clients.

Judicial act: Resolution of the Arbitration Court of the Moscow District dated February 18, 2022 in case No. А40-75041/21

Court's findings:

1. A bank account was opened specifically for reserving the amount of interest on the remuneration of an arbitration manager, therefore, the defendant was obliged to fulfill the order of the plaintiff and transfer the amount of money to the plaintiff, regardless of the actions and consent of the debtor. The bank is the obligated person.

2. The bank did not prove the legitimacy of holding the disputed funds in a special account.

3. At the same time, the qualification of disputed legal relations as obligations from unjust enrichment is erroneous. the plaintiff's claims were related to the plaintiff's performance of the duties of an arbitration manager and were based on the defendant's improper performance of obligations under the bank account agreement.

4. The purpose of the claim is to compel the defendant to take actions aimed at protecting the violated rights of the plaintiff in connection with the defendant's failure to fulfill obligations under the bank account agreement.

Comment:

1. The court in the present case satisfied the requirements of the arbitration manager in payment of the amount of interest on remuneration. However, there are cases when the corresponding amount of interest may be reduced by a court decision, or the payment of interest may be refused.

2. The remuneration of the arbitration manager consists of two parts: fixed and interest. The first, fixed part, involves payment for the very fact of the work of the contractor as an arbitration manager, and the second should depend on the quality and efficiency of his work.

3. Detailed regulation of the issue of receiving interest on remuneration after the sale of collateral by financial managers in Art. 20.6 of the Federal Law "On Insolvency (Bankruptcy)".

4. Regarding interest on remuneration, there is a discussion: do we consider interest as a stimulating part, which are not subject to payment by default and depend on the activity of the arbitration manager, or is the interest set even without active actions of the manager?

5. The position of the Supreme Court at the moment is that with passive behavior, the manager will not receive the “incentive part” of the remuneration, that is, the payment of interest was denied.

6. However, an exception is also possible: for example, cases of restoration of the debtor's solvency in the course of financial recovery or external management, when a positive effect is possible as a result of the activities of the arbitration manager: in this case, the payment of interest will be possible.

Please note that in 2020 the law firm Vetrov & Partners was marked by the industry rating of law firms Pravo.ru-300 in the nominations Arbitration Proceedings, Dispute Resolution in Courts of General Jurisdiction and is one of the regional companies throughout Russia in these nominations.

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 that you check and make sure that your legal position complies with the latest changes in practice and legislation.

We will be happy to provide you with legal assistance regarding the minimization of legal risks and available opportunities. We will try to find a solution that is right for you.

Call +7 (383) 310-38-76 or write to info@vitvet.com.

Our law firm provides various legal services in different cities of Russia (including Novosibirsk, Tomsk, Omsk, Barnaul, Krasnoyarsk, Kemerovo, Novokuznetsk, Irkutsk, Chita, Vladivostok, Moscow, St. Petersburg, Yekaterinburg, Nizhny Novgorod, Kazan, Samara, Chelyabinsk, Rostov-on-Don, Ufa, Volgograd, Perm, Voronezh, Saratov, Krasnodar, Tolyatti, Sochi).

David Glikshtein, manager. I write articles, look for interesting information and suggest ways to use it in practice. I believe that thanks to high-quality legal analytics, clients come to a law firm, and not vice versa. Do you agree? Then let's be friends on Facebook.