Supreme Court of Russia pointed out the mistake of a trustee made during the enforcement of the pledge

As part of the company's insolvency case, the tax authority applied to court and filed a claim against the actions of a bankruptcy trustee.  The applicant was dissatisfied by the fact that the anti-crisis manager, in his opinion, made a premature settlement with the secured creditor.  In addition, the Federal Tax Service asked to remove the trustee from his position and recover 10 million losses from him.

The courts of three instances consistently rejected the claim, considering them unfounded. Then the representatives of the tax authorities applied to the Supreme Court of the Russian Federation, where the judicial acts were cancelled, and the dispute was sent for reconsideration.

The applicant's arguments boiled down to the fact that the trustee should had reserved the funds necessary to repay the debts, but instead of it, he did not wait for the validity of the application to be considered, returned the proceeds received after the enforcement of the pledge funds to the secured creditor.

The courts of three instances made the decisions due to the fact that at the time of the distribution of funds, a judicial act on the inclusion of the tax debt into the register of creditors’ claims had not yet been adopted, and bankruptcy proceedings were still underway, therefore, the applicant had the opportunity to satisfy his own claims.

However, the Supreme Court of the Russian Federation came to the conclusion that in the case under consideration, the manager still should had reserved the necessary amount of money, since paragraph 2 of Article 138 of the Insolvency Law provides for the payment to the secured creditor of only 80% of the proceeds from the enforcement of the pledge. The rest should be spent to pay off the claims of creditors of the first and the second priority, as well as to pay the current payments (decision No. 302-ES17-11347 (10) in case No. A19-15388 / 2015 of December 27, 2021).