Lenders order in a bankruptcy process

Question:

What is the sequence of actions while filing an application to the court for declaring a debtor’s bankruptcy, how the terms can be optimized and why it is important to be the first among creditors?

Answer:

It is certainly worth striving to be the first applicant in a case of bankruptcy of a debtor, since this superiority gives the right to choose SRO of the arbitration managers, from the number of whom, subsequently, a manager for the entire bankruptcy process will be appointed.

For achieving of this goal, it is important to know certain nuances that will help to solve the problem.

First, it is possible to initiate the bankruptcy of a debtor only after the order of the court, on which the claims are based, enters into force (Clause 2, Article 7 of the Federal Law "On Insolvency (Bankruptcy)"). At the same time, the amount of debt to the creditor must be at least 300,000 rubles (for a company debtor) and at least 500,000 rubles (for a citizen debtor).

However, as follows from the position, contained in paragraphs. 2 p. 1 of the resolution of the Plenary of the Supreme Arbitration Court of the Russian Federation No. 35, a certified copy of the operative part of the decision of the court of appeal on satisfaction of the claim (in case of appeal of the decision) is enough. Thus, you can save some time and not wait for the publication of the court order in full.

Secondly, the law requires the creditor to publish a notice of the forthcoming filing of the bankruptcy of the debtor, the minimum period is 15 calendar days before the filing of the application to the court.

However, a controversial situation, regarding the sequence of actions of the applicant in case of a bankruptcy arose recently, and the arbitral tribunal gave an explanation about it (case F03-3774 / 2019). The Bankruptcy Law does not regulate the sequence of actions in case of initiating a bankruptcy proceedings of a debtor, it is not established, which action is the first: the entry into force of a judicial act on which the creditor bases the claims or publication of information about the intention of bankruptcy of the debtor. Consequently, it is possible to save some time and publish a message about the intention of the bankruptcy of the debtor before a court order, which justifying the legitimacy of the claims of the creditor, enters into force.