CONTESTING A TRANSACTION BETWEEN A DEBTOR AND AN EX-FOUNDER COMPLICATED BY A CORPORATE CONFLICT

The issue of challenging the transaction between the debtor and the ex-founder deserves special attention in the bankruptcy court practice. In particular, difficulties may arise in case of a corporate conflict. Polina Semenova, Senior Lawyer of the VILEX GROUP Bankruptcy practice, shared her professional experience in such a case. The expert told in the article about how the bankruptcy trustee managed to achieve a review of the court decision and what the complexity of the case was.

The former founder had accounts receivable to the debtor. In order to prevent the bankruptcy trustee's claim for debt collection from being satisfied, he submitted to the court a letter about the offset of homogeneous claims made with the debtor. The court refused to satisfy the manager of the claim.

As part of the bankruptcy case of an agricultural organization, the bankruptcy trustee appealed to the court for the recovery of receivables from the founder of the debtor, who resigned from the participants shortly before the occurrence of insolvency.

During the consideration of the case, the defendant submitted to the court a letter about the offset of homogeneous claims made with the debtor. The defendant referred to the fact that the letter was sent to the debtor before the bankruptcy case was initiated and the bankruptcy trustee filed a claim. In this regard, the court denied the claim.

Subsequently, the bankruptcy trustee applied for invalidation of the set-off. The transaction was contested on the grounds of suspicion and as concluded for the purpose of harming the property rights of creditors.

The complexity of the dispute was the presence of a corporate conflict between the debtor, the former founder and the affiliated person. Through an affiliated person, the founder transferred to the debtor the entire complex of agricultural property for conducting activities.

In fact, the former founder, having provided the debtor with a financial opportunity to conduct business, and before leaving the company by appointing a manager, continued to control the debtor's activities and had access to accounting and other documentation.

But there was no direct legal connection between these persons. Therefore, it was difficult to prove the fact of compensatory financing and the interest of the parties. In addition, the ambiguity of the situation was created by the presence of a judicial act that established the existence of another beneficiary during the disputed period. The defendant took advantage of this circumstance.

As a result, the bankruptcy trustee proved that the former founder entered into a set-off to prevent the debtor from returning to the bankruptcy estate of the debtor of receivables in the amount of 16 million rubles.

Firstly, by judicial acts that have entered into force, arrears on payment of leased agricultural property were collected from the debtor in favor of the founder's subsidiary. A subsidiary company affiliated with both the founder and the debtor was aware of the latter's lack of its own property for farming.

In addition, the founder, when creating the debtor company, limited himself to a minimum investment in the company. He endowed him with an authorized capital of 10,000 rubles.

After the emergence of a corporate conflict between the former and the new founders of the debtor, the former participant of the company initiated legal disputes on the return of the leased property. At the same time, it was clear that this would entail the subsequent insolvency of the debtor.

Secondly, before leaving the debtor company, the founder appointed a director, thereby securing additional control over the company. Thirdly, the primary documents and judicial acts on debt collection established the circumstances of the debtor bearing the burden of maintaining the property that belonged to the founder and his subsidiary, provided to the debtor on the right of lease. Fourth, the debtor provided agricultural services for sowing and harvesting to the subsidiary of the former founder.

Thus, the fact that the former founder extracted profit from the debtor's activities was proved. At the same time, all possible risks of entrepreneurial activity and losses fell on the debtor.

On such grounds, the court declared the set-off invalid and restored the debtor's right of claim to the defendant.

After the transaction was declared invalid, the bankruptcy trustee appealed to the court with an application for reconsideration of the decision to refuse debt collection under a new circumstance.