MISUSE OF LAW LED TO CANCELLATION OF JUDICIAL ACTS

The district court has recently considered a case on the complaint of one of the debtor's creditors. The applicant contested a number of unilateral real estate alienation transactions. The agreements were made by the future bankrupt in favor of his own grandchildren.  

The courts of the first and appellate instances rejected a claim of a creditor, not finding a misuse of law on the part of the debtor. However, the Commercial court had a different view on the situation. The board indicated that the judges had made a significant mistake.

To recognize the transaction concluded by the debtor as invalid, it was necessary to establish whether the debtor had a formal fact of delay in fulfilling the obligation as of the date of the transaction.

In the case under consideration, there was such a basis and here's why.

The debtor was the guarantor and the only member of the company, which was the borrower of a large amount of money from the bank (later the creditor). Prior to the conclusion of the contested transactions, the company had already had delays under the loan agreement, which the debtor could not fail to know.

Thus, as a guarantor, he could not fail to realize the inevitability of the onset of responsibility in relation to himself, and also could not fail to understand the fact that it was impossible to fulfill the obligation in a situation of alienation of the disputed property in favor of the grandchildren.

Such a transaction runs the risk of being invalidated due to the misuse of the right and its commission to the detriment of the interests of creditors.

As a result, the judicial acts of the lower courts were canceled, and the case will be reconsidered in the court of the first instance (decision in case No. А40-311937 / 18 of February 26, 2021).