HOW CAN I PROVE THE ORIGIN OF THE LOAN?

The creditor applied to the court for inclusion in the debtor's register of debts and a request for restoration of the missed deadline (case no. A56-19467/20).

The courts of two instances restored to the creditor the deadline for submitting an application for inclusion of a claim in the register, included the principal debt and penalty in the register, taking into account the debtor's repayment of part of the borrowed funds. The courts concluded that sufficient evidence had been provided of the financial ability to provide funds for a loan, and also indicated that the creditor had provided evidence of the accumulation of funds in deposit accounts with banks over a certain period. 

The cassation sent the dispute for reconsideration, pointing out that the courts had not investigated and assessed the contestant's objections about the alleged loan agreement, in particular, they had not investigated the fact of withdrawing funds from the creditor's bank accounts. The fact of withdrawal of funds from the creditor's bank accounts has not been established by the courts, the creditor did not refer to the existence of such evidence. 

The Court of Cassation also noted that the creditor should have had no difficulty refuting the contestant's objections, since, according to him, the funds were in a bank account, and he obviously should have all the evidence of his legal relationship with the insolvent debtor. In addition, the courts did not assess the fact that the loan was interest-free and did not provide any collateral. The economic feasibility of providing a loan by the lender has not been disclosed.

In the court's opinion, in order to properly distribute the burden of proof, the court should have found out to what extent the loan terms and circumstances of its conclusion were typical for independent participants in the turnover. In addition, the courts did not evaluate the objections of the contestant and the financial manager that the documents submitted by the lender do not imply the availability of sufficient funds in the bank account immediately at the time of the loan agreement. The contested judicial acts do not provide specific evidence confirming the validity of the conclusion that the creditor accumulated a comparable amount of money in any bank account (accounts).

    

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