A PLEDGE LENDER WHO WAS LATE TO FILE A CLAIM FOR A RECOVERY RISKS TO LOSE HIS RIGHT TO IT

The Commercial Court of the North-West District has recently considered the case of excluding the pledged apartment from the bankruptcy estate of the debtor-individual. The applicant pointed out that the real estate was his only housing, and therefore no foreclosure could be levied on it. The opinions of the courts were different, but the cassation put an end to the case.

The court of first instance, in fact, agreed with the debtor, having applied the rule of law on the only housing of bankrupt.

The court of appeal looked at the situation from a different angle, pointing out the existence of a pledged apartment. In the opinion of the board, in this case, even if there is only one housing, it cannot be excluded.

Thus, there was a clash of two rules of law: on the one hand, the law states that the only housing should be excluded from the bankruptcy estate, but on the other hand, that even in this case, if there is a pledge, it cannot be excluded.

Assessing the opinions of the colleagues, the district court agreed with the court of the first instance, recalling that in the case under consideration, the pledge lender was late with his application for inclusion in the register of creditors’ claims. In such a situation, if the apartment is not excluded from the bankruptcy estate due to its implementation, the claims of other creditors included in the register of the creditors’ claims will be repaid, which cannot be allowed.

As for the pledge lender himself, he may lose his right to recovery due to the late filing of an application for inclusion in the register of the creditors’ claims (resolution in case No. A56-153723 / 2018 of December 10, 2020).