RusBankrot
We know everything about bankruptcy
03/05/2024
Friday
THIS DAY IN HISTORY:
3 May 
2021 World Press Freedom Day
2020 World Press Freedom Day
1957 Collective farms were transformed into the state farms in the USSR.
1957 Collective farms were transformed into the state farms in the USSR.
1841 New Zealand was declared a British colony.
1841 New Zealand was declared a British colony.
3 May
2021 World Press Freedom Day
2020 World Press Freedom Day
1957 Collective farms were transformed into the state farms in the USSR.
1957 Collective farms were transformed into the state farms in the USSR.
1841 New Zealand was declared a British colony.
1841 New Zealand was declared a British colony.
AFFILIATION DOES NOT MEAN ABUSE BY DEFINITION OF THE BALANCE
The manager filed an application to the court challenging the debtor's offsets.
The position of the first instance and the appeal
The lower authorities satisfied the manager's application.
Satisfying the applications, the courts were based on the fact that the defendant entered into agreements on the offset of mutual claims with an affiliated person, being aware of the unsatisfactory financial condition of the latter, as well as the presence of unfulfilled obligations by the debtor to other creditors. Thus, he received preferential satisfaction of his own claims over the claims of other creditors, since when included in the register, the defendant's claim could be lowered in priority.
The courts also relied on a literal interpretation of the text and title of the agreements on the settlement of mutual claims.
The position of the District Court
The cassation annulled the judicial acts of lower instances and sent the dispute for a new consideration (Resolution of the Arbitration Court of the Moscow Region dated January 17, 2024 in case No. A40-187996/19). In arguing its position, the court cited the following arguments:
• Currently, in a separate dispute, as explained by the representative of the bankruptcy trustee in the court of cassation, the question was not raised about the lack of reality of the fact of the work performed and the existence of mutual obligations of the parties, and this circumstance is not disputed by the bankruptcy trustee, in particular, taking into account judicial acts.
• In this case, if the courts do not establish the fact of the imaginary mutual obligations (absence of real obligations), the very fact of the parties' affiliation cannot serve as an unconditional basis for the presence of signs of abuse in the actions of the parties to determine the balance of mutual settlements.
The position of the first instance and the appeal
The lower authorities satisfied the manager's application.Satisfying the applications, the courts were based on the fact that the defendant entered into agreements on the offset of mutual claims with an affiliated person, being aware of the unsatisfactory financial condition of the latter, as well as the presence of unfulfilled obligations by the debtor to other creditors. Thus, he received preferential satisfaction of his own claims over the claims of other creditors, since when included in the register, the defendant's claim could be lowered in priority.
The courts also relied on a literal interpretation of the text and title of the agreements on the settlement of mutual claims.
The position of the District Court
The cassation annulled the judicial acts of lower instances and sent the dispute for a new consideration (Resolution of the Arbitration Court of the Moscow Region dated January 17, 2024 in case No. A40-187996/19). In arguing its position, the court cited the following arguments:• Currently, in a separate dispute, as explained by the representative of the bankruptcy trustee in the court of cassation, the question was not raised about the lack of reality of the fact of the work performed and the existence of mutual obligations of the parties, and this circumstance is not disputed by the bankruptcy trustee, in particular, taking into account judicial acts.
• In this case, if the courts do not establish the fact of the imaginary mutual obligations (absence of real obligations), the very fact of the parties' affiliation cannot serve as an unconditional basis for the presence of signs of abuse in the actions of the parties to determine the balance of mutual settlements.
23.01.2024
