DISTRICT COURT PUT AN END TO THE CASE ON SUBORTINATION OF CREDITORS’ CLAIMS

The case on subordination of the creditor's claims within the framework of the bankruptcy process was referred to the arbitration court. The court of the first instance saw no grounds for this, but the appeal court took the opposite position. The district court put an end to the case.

The lender's statement was based on a loan obligation. After the introduction of the monitoring procedure, the lender requested that the debt owed to him should be included in the register.

The court of the first instance satisfied the application. However, the appeal court canceled the ruling, having found the fact of affiliation between the parties to the transaction.

The result of consideration in the second instance was the subordination of the creditor's claims and a court order to pay off the debt to him after all other declared creditors.

At the same time, the cassation instance indicated a number of theses that were not taken into account by the appeal.

First of all, the board recalled that only the fact that the debtor and the creditor were affiliated could not serve as a basis for subordination of the claims of the latter.

As for the issuance of a loan to the debtor by an affiliated person, in order to subordinate the claims of the latter, it is necessary to prove that the debtor was in a situation of property crisis at the time of the conclusion of an agreement, which was not done.

As a result, the ruling of the court of appeal was cancelled, and ruling of the court of first instance was upheld (resolution in case No. А40-253486 / 2019 of March 5, 2021).