Challenging the equity participation agreement concluded by the debtor

Challenging the share agreement concluded by the debtor. Debt collection. Arbitrage practice.

The bankruptcy commissioner applied to the court with a demand to invalidate the equity participation agreement and collect the debt due to the lack of confirmed payment in favor of the debtor.

As a result of consideration of the dispute, the equity participation agreement was declared void due to the abuses of their rights committed by the parties, in accordance with Articles 10, 168 of the Civil Code of the Russian Federation and on the basis of part 2 of Article 167 of the Civil Code of the Russian Federation, the consequences of invalidity were applied in the form of recovery of the cost of rights to the bankruptcy estate of the debtor assigned by the defendant under the disputed share agreement.

Case plot:

In February 2016, an equity participation agreement was concluded between the developer and an individual, the agreement was registered with Rosreestr.

In February 2018, an individual assigns the rights under an equity participation agreement under an assignment agreement to two individuals.

In October 2019, bankruptcy proceedings were initiated against the developer. In November 2019, bankruptcy proceedings were opened.

In November 2020, the bankruptcy trustee applied to the court with a demand to invalidate the equity participation agreement and collect the debt in favor of the debtor.

The requirements of the bankruptcy trustee were satisfied, the appellate and cassation courts upheld the conclusions of the court of first instance.

Judicial act: Resolution of the Arbitration Court of the Urals District dated November 22, 2021 in case No. А76-35630/2019.

Court's findings:

1. Since the end of 2016, the debtor has been in an unsatisfactory financial situation; 19 decisions were made in relation to him to suspend operations on accounts in credit institutions, the total amount of unfulfilled monetary obligations was more than 400,000,000 rubles.

2. The defendant did not provide proper evidence of payment under the equity participation agreement, in addition, it was not confirmed that he had the ability to pay the cost stipulated in the equity participation agreement. The fact of payment is not reflected in the accounting documents of the debtor. There are no receipts for receipt orders, payment documents (certificate of full payment of the property and an act of full payment of the apartment), provided by the defendant, are not reliable and sufficient evidence in connection with their signing by the nominal director of the debtor.

3. The defendant ceded the rights of claim under the equity participation agreement in favor of individuals whose ownership is recognized, thus, the bankruptcy estate is subject to collection of the amount paid in favor of the defendant under the concluded assignment agreement due to the gratuitous nature of the equity participation agreement itself.

4. Damage to the property rights of creditors was caused not by the sale of the apartment itself, but by the actions by the debtor and the defendant to create evidence confirming the fact of payment of its cost, which are aimed at creating the appearance of making settlements.

Comments:

1. When considering cases on the issue of invalidity of transactions made by the debtor, the courts have the right to be guided not only by the special rules of the Bankruptcy Law (Articles 61.2, 61.3), but also by the provisions of the Civil Law (paragraph 4 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation of December 23, 2010 No 63). In the case under consideration, the equity agreement was concluded earlier than three years before the initiation of the bankruptcy case of the debtor, respectively, the court lawfully applied the general norms of the Civil Code of the Russian Federation (Articles 10, 168), including based on the clarifications of the data in paragraph 10 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated 30.04.2009 No32, according to which, if the debtor's transaction is aimed at violating the rights and legitimate interests of creditors, based on the inadmissibility of abuse of civil rights, it can be challenged on appropriate grounds by the debtor's manager.

2. Establishing the fact of abuse of the right, the court assessed critically the certificates provided by the defendant on the full payment of the property dated December 2017 and the act on the full payment of the apartment dated February 2018 in view of their signing by the “nominal” director of the debtor, and also pointed out the inconsistency of the defendant’s testimony, who, as part of an interrogation in a criminal case, said that he had made a one-time payment on the date of concluding an equity participation agreement, about which he was issued the appropriate receipts for credit orders, which were subsequently lost. In this case, there is a question of the admissibility of accepting the materials of the criminal case, since there is no reference to the verdict in the judicial act, while according to part 4 of article 69 of the Arbitration Procedure Code of the Russian Federation, only the entry into force of the verdict entails exemption from proof.

3. The absence of proper evidence of payment and the unsatisfactory financial position of the debtor as of the date of conclusion of the equity agreement, together with the fact that the payment is not reflected in the debtor's accounting documents, the fact that the Ministry of Construction and Infrastructure of the Chelyabinsk Region conducted an audit, which also established the absence of payment from the defendant, allowed the court to conclude that the right was abused when concluding a share agreement, including due to the fact that other participants in shared construction, when included in the register of the debtor's claims, confirmed the fact of payment precisely with receipts for credit orders, which are not available only to the defendant in this dispute.

4. Separately, the court noted the existence of an indirect interest between the debtor and his contractor, who was led by the defendant's brother in the present case.

5. When concluding an equity participation agreement, the defendant could not be responsible for the actions of the debtor, for example, to control the fact that payment is reflected in the accounting data or to analyze the financial position of the debtor for certain, but the evidence in aggregate and interconnection confirms that the defendant was aware of the nature of his actions and acting purposefully , firstly, he provided documents on payment, receipts for a loan of funds to pay for the contract, which, based on his explanations, were drawn up in 2021, and secondly, he gave conflicting explanations. In addition, the court saw damage to the property interests of creditors precisely in the actions to create evidence confirming the fact of payment, and not in the fact of selling the apartment.

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Marina Sorokina