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05/12/2025
Friday
THIS DAY IN HISTORY:
5 December 
1936 The Stalinist Constitution of the USSR was adopted.
1936 the Stalinist constitution of the USSR was adopted.
1484 Pope Innocent VII initiated the "witch hunt".
1456 An earthquake that destroyed Naples occurred - 35 thousand people died.
1456 occurred an earthquake that destroyed Naples - 35 thousand people died.
5 December
1936 The Stalinist Constitution of the USSR was adopted.
1936 the Stalinist constitution of the USSR was adopted.
1484 Pope Innocent VII initiated the "witch hunt".
1456 An earthquake that destroyed Naples occurred - 35 thousand people died.
1456 occurred an earthquake that destroyed Naples - 35 thousand people died.
Reality check of investment legal relations in bankruptcy case
The creditor applied to the court for the inclusion of claims in the debtor's register (case no. A32-9562/21).
The court of first instance partially satisfied the application, based on the fact that, taking into account the increased standard of proof, the creditor did not prove the validity of their claims under one of the investment agreements.
The appeal changed the definition, recognizing as proven the fact of the transfer of funds under one of the investment agreements, as this is confirmed by the incoming cash documents. The former head of the debtor confirmed the investor's deposit of funds, indicating their expenditure on the construction of the disputed facility. As for the financial capability of the investor, it is confirmed by loan agreements with individuals.
The Court of Appeal also took into account the investor's explanations that the debt under the loan agreements was repaid at the expense of funds received under the new loan agreement. As an economic feasibility, the applicant referred to the possibility of participating in an investment in the construction of a shopping and office center.
The cassation sent the dispute for reconsideration in part and pointed out that the Court of Appeal had not taken into account the need to apply an increased standard of proof when considering bankruptcy cases. The burden of refuting the bankruptcy trustee's arguments should have passed to the creditor, who was obliged to submit objections to each argument with appropriate evidence.
In addition, the courts did not examine the evidence provided by the creditor, such as loan agreements and information about financial opportunities, and there is no assessment of them in the judicial act. The facts of the availability of sufficient funds from lenders to provide a loan to an investor and the reality of transferring cash to the debtor have not been sufficiently verified.
The income or other information confirming the financial ability of the lenders and the economic feasibility of entering into a loan relationship with an investor have not been disclosed. Additionally, it is stated that the courts did not properly investigate the issue of the reality and validity of the claims, did not disclose the entire structure of the creditor's legal relations with lenders.
Photo: Freepik
The court of first instance partially satisfied the application, based on the fact that, taking into account the increased standard of proof, the creditor did not prove the validity of their claims under one of the investment agreements.
The appeal changed the definition, recognizing as proven the fact of the transfer of funds under one of the investment agreements, as this is confirmed by the incoming cash documents. The former head of the debtor confirmed the investor's deposit of funds, indicating their expenditure on the construction of the disputed facility. As for the financial capability of the investor, it is confirmed by loan agreements with individuals.
The Court of Appeal also took into account the investor's explanations that the debt under the loan agreements was repaid at the expense of funds received under the new loan agreement. As an economic feasibility, the applicant referred to the possibility of participating in an investment in the construction of a shopping and office center.
The cassation sent the dispute for reconsideration in part and pointed out that the Court of Appeal had not taken into account the need to apply an increased standard of proof when considering bankruptcy cases. The burden of refuting the bankruptcy trustee's arguments should have passed to the creditor, who was obliged to submit objections to each argument with appropriate evidence.
In addition, the courts did not examine the evidence provided by the creditor, such as loan agreements and information about financial opportunities, and there is no assessment of them in the judicial act. The facts of the availability of sufficient funds from lenders to provide a loan to an investor and the reality of transferring cash to the debtor have not been sufficiently verified.
The income or other information confirming the financial ability of the lenders and the economic feasibility of entering into a loan relationship with an investor have not been disclosed. Additionally, it is stated that the courts did not properly investigate the issue of the reality and validity of the claims, did not disclose the entire structure of the creditor's legal relations with lenders.
Photo: Freepik
19.08.2025
