HOW CAN THE MONEY OF THE CREDITOR BE DISTINGUISHED FROM THE MONEY OF THE DEBTOR'S PARTICIPANT?

In the framework of the bankruptcy case (No. A32-50456/22), the creditor applied to the court for the inclusion of the claim in the debtor's register and the establishment of a collateral status for it. In support of the application, the creditor referred to the fact that a loan agreement was concluded between the debtor and the bank and the subsequent assignment by the bank in favor of the creditor of a part of the claim under the assignment agreement.

The courts of two instances satisfied the application, referring to the fact that the applicant proved the existence and size of the claims, the availability of financial opportunity to acquire the rights of claim against the debtor from the bank, pointing out the absence of grounds for concluding that the debtor and the applicant are affiliated, that the debtor has a financial crisis at the date of conclusion of the assignment agreement, the absence of delay in the debtor's performance of obligations under the loan agreement, partial repayment of debt under the loan agreement.

The cassation sent the dispute for reconsideration, drawing attention to the following:

• The courts unreasonably rejected the creditors' arguments that the payment of the claim to the debtor was actually made at the expense of the debtor's participant's funds received by the creditor under the loan agreement, indicating that the applicant's total income allowed the bank to pay the price specified in the assignment agreement, and the loan agreement did not indicate that it was targeted and assumed the transfer of funds to acquisition of the right (claim) to the debtor from the bank.

• At the same time, the courts did not take into account that, according to the creditor's account statement, the account balance on the date preceding the assignment was a small amount and the subsequent receipt of funds from the debtor's participant with further transfer to the bank of payment under the assignment agreement. Thus, at the date of payment to the bank of the right of claim against the debtor under the assignment agreement, the creditor did not have its own funds to pay in full to the bank under the assignment agreement.

The district court also rejected the arguments of the courts that the creditor's income for 2 years before the transaction is proof of payment of the claim received from the bank to the debtor at its own expense, and not at the expense of funds received from the debtor's participant under the loan agreement.

In addition, according to the district court, the creditor's return of borrowed funds to the debtor's participant also does not refute the creditors' arguments about paying the received right (claim) to the debtor at the expense of funds received from the debtor's participant under the loan agreement.