A SET-OFF 2 WEEKS BEFORE BANKRUPTCY IS DEFINITELY SUSPICIOUS

The manager applied to the court for invalidation of the settlement of mutual claims between the debtor and the entrepreneur (case no. A40-254256/24).

The court of first instance granted the application, concluding that at the time of the transaction, the debtor had other creditors of the third stage, as a result of which there was a preference for one of the creditors over other creditors in terms of satisfying his claims. 

Canceling the ruling of the court of first instance, and recognizing the bankruptcy trustee's statement as unfounded, the court of appeal proceeded from the fact that the court of first instance did not take into account the existing legal relations of the parties, as a result of which the disputed act of setting off mutual claims was drawn up. 

The Court of Appeal noted that by itself, the settlement of mutual claims after the initiation of bankruptcy proceedings or within one month before the adoption of such an application by the commercial court does not necessarily indicate the presence of signs of invalidity of these transactions. The court of appeal has not established any signs of the entrepreneur's interest (affiliation) in relation to the debtor, or any other dishonesty in the defendant's actions to terminate mutual obligations by crediting mutual claims. 

The cassation upheld the ruling of the first instance, noting that the contested set-off entailed the preferred satisfaction of the entrepreneur's claims over other creditors. The offset transaction took place on 10.10.2024, the bankruptcy case was initiated on 25.10.2024. The conclusion of the court of appeal that this transaction was made in the ordinary course of business is erroneous. 

 

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