RISKS OF PROVIDING LOANS WITHOUT SECURITY DURING THE PERIOD OF SIGNS OF INSOLVENCY

The courts of two instances denied the application, finding that at the time of the disputed transaction, the debtor did not meet the criteria of insolvency, and the debt owed to the debtor's creditors began to form much later than the period during which the disputed transaction was carried out.

The courts concluded that the bankruptcy trustee had not proven that the value or size of the debtor's assets had decreased or that the debtor's liabilities had increased, as the transaction resulted in the creation of an asset in the form of a receivable in the amount of the loan, and the bankruptcy trustee had not provided evidence of the impossibility of recovering the receivable from the defendant.

The bankruptcy trustee had not provided evidence of the debtor's and the defendant's affiliation or the defendant's knowledge of the debtor's financial situation at the time of the disputed transfer of funds.

The cassation court granted the claim and noted the following. The parties' behavior during the transactions significantly differed from the behavior of bona fide participants in similar legal relations.

Since the debtor and the defendant were alleged to be affiliated, it was the defendant's responsibility to refute the claims made by the bankruptcy trustee. The defendant had no other income, and there was no other evidence in the case file. The circumstances surrounding the loan agreement suggest a trusting relationship between the debtor and the defendant, indicating their mutual interest.

The manager's arguments that the defendant was employed by the debtor have not been refuted. A court ruling that has entered into force previously invalidated a transaction involving the transfer of funds to another company and established that the disputed transaction was conducted during the period when the debtor was insolvent.

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