THE ARBITRATION COURT CLARIFIED THE ISSUES OF INCLUSION IN THE REGISTER OF A THIRD-PARTY PLEDGER

The essence of the case was that a loan agreement was concluded between the creditor (bank) and a third party who is not the main debtor in the bankruptcy case. In order to ensure the fulfillment of obligations under it, the debtor has provided real estate under a mortgage agreement.

At the same time, the main debtor under the loan agreement fulfills its obligations to the bank properly, following the repayment schedule.

The cassation drew the attention of the lower courts to the following circumstances. According to the position of the Supreme Court of the Russian Federation, the initiation of a bankruptcy case of a third-party mortgagor is the basis for filing a claim for early fulfillment of obligations to the principal debtor.

In case of refusal to satisfy the specified claim, the creditor has the right to submit an application for inclusion in the register of the pledgor.

At the same time, the fact of presenting such a claim to the principal debtor was not investigated by the courts. In addition, the court's attention was deserved by the fact that the absence of a violation by the main debtor of its obligations under the loan agreement indicates that the bankruptcy of the pledgor did not lead to a deterioration of the secured obligation.

Since the bank did not submit a claim for early repayment of the debt, and the further validity of the loan agreement was confirmed by its conclusive actions, it did not have the opportunity to file claims against the pledgor.

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