THE BURDEN OF PROVING ECONOMIC INDEPENDENCE UPON INCLUSION IN THE REGISTER

The company applied to the court for the inclusion of claims in the debtor's register (case no. A51-13753/23).

In refusing to include the claimed claim in the register, the court of first instance proceeded from the unfair behavior of the creditor affiliated with the debtor, the real purpose of which was to prevent the debtor from challenging transactions involving the transfer of shares in its authorized capital, the satisfaction of which should have led to the transfer of significant assets to the debtor's bankruptcy estate.

The court of Appeal questioned the sufficiency of grounds to believe that, in paying off the debtor's claims in another bankruptcy case, the company acted with an unfair purpose (maliciously) that was not disclosed to the court and the participants in the dispute, obviously realizing that the debtor's financial condition could not be restored, and therefore did not pursue the goal of restoring the debtor's solvency. 

Taking into account that the funds transferred to the debtor's special bank account or to the notary's deposit for repayment of creditors' claims in the bankruptcy case are considered to have been provided to the debtor under the terms of an interest-free loan agreement. Having failed to establish the affiliation of the company and the debtor, the court of appeal, after checking the calculation, recognized the company's claim for the principal debt, confirmed by the court ruling in another case that entered into force, as well as for interest on the use of other people's funds, as justified and subject to inclusion in the third row of the register of creditors' claims of the debtor.

The cassation upheld the ruling of the first instance, since the evidence presented both in the framework of previously considered separate disputes and currently combined allows us to conclude that there was an actual affiliation between the company and the debtor both during the period of the above transactions and during the repayment of creditors' claims in another case, in connection with than the conclusions of the court of appeal to the contrary are recognized by the collegium as erroneous.  

The above indicates that the company, having repaid the register of creditors at the expense of the debtor's assets, did not pursue the rehabilitation purpose of the repayment procedure – restoring the debtor's solvency, since it was aware of the existence of subordinated claims of the bank, and that the bank also insisted on repayment of his claims, while as a result of the continuation of the initial procedure There was a possibility of repayment of the claims of all creditors, including those not included in the register.

In connection with the above, the court of appeal had no grounds for including the company's claims in the register, and the conclusions to the contrary were made without taking into account and analyzing all the circumstances of the dispute in their entirety, as well as the arguments of independent creditors and the debtor himself, which led to the adoption of an incorrect judicial act.

 

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