A LATE CREDITOR WILL GET AWAY WITH EVERYTHING

In the framework of the bankruptcy case (No. A56-31169/16), the creditor applied to the court to challenge the bidding for the sale of the right of claim to the subsidiary debtor, pointing out that they did not exercise the right to choose the method of disposal of the claim in a timely manner.

The courts of three instances refused to satisfy the application, noting that the creditors were duly notified that they had the right to choose the method of disposing of the claim to the controlling persons, in connection with which they stated that the applicant had the opportunity to make a choice, but did not exercise this right within the time allotted by law.

In its position, the Supreme Court said that, contrary to the conclusions of the courts, the belated expression by the creditor of the will to receive a part of the claim for subsidiary liability is permissible if it has no signs of abuse of law and was committed before the sale of the relevant claim by the manager had a legal effect in civil circulation.

At the same time, the manager received a statement from the bank on the choice of the method of disposing of the claim a month before the day of the auction, and the courts did not give the reasons that objectively prevented the manager from taking actions to refuse the auction after receiving the notification.

In fact, this position creates a risk of uncertainty when bidding for the sale of subsidiary liability: on the one hand, a bona fide creditor (whose good faith, however, has yet to be established), on the other hand, a bona fide bidder who has a reasonable right to expect the transfer of the right of claim to him.

The second aspect, among other things, is consistent with the will of the other creditors who have chosen the method of exercising the right of claim – sale at auction.

It could be assumed that in this case, the rights of the potential winner of the auction are not infringed, since he can still receive a claim, minus the part assigned to such a late creditor. But in this case, he receives a claim in a smaller volume, and the final volume will depend on what is the share of the late creditor in the register.

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