THE COURT CLARIFIED HOW TO HOLD THE CURRENT PAYMENTS INVALID

During the bankruptcy proceedings of the debtor, the latter is legally entitled to make the current payments necessary to support his or her activities. However, such a rule can also be used by unscrupulous persons willing to withdraw a part of the funds from the bankruptcy estate, thereby depriving the creditors of the money owed to them.

One of such legal cases was considered in July by the Commercial Court of the West Siberian District, and as a result, the colleagues demanded a second consideration of the application.

According to the materials of the case, the debtor, after being declared insolvent and after the opening of the bankruptcy proceedings, has transferred the funds on several payment orders to some company.

The insolvency officer, having suspected the withdrawal of funds, demanded in court that the transactions should be declared invalid, referring to the affiliation of the parties to the legal relationship: the current member of the company that received the money previously was the head of the debtor.

The court of the first instance and the court of appeal court supported the insolvency officer, having satisfied his claims. However, during the cassation hearing of the case, the district court pointed out a number of shortcomings, without which it was impossible to pass a legal and well-grounded judgment.

In particular, in the opinion of the district judges, the subject of evidence in a dispute over the invalidation of current payments includes:

• an establishment of the fact of the violation of priority in making the disputed payments;

•a proof of the awareness of the company, which received the funds on payment orders, about the violation of priority;

•a documentary evidence of the debtor's lack of funds to satisfy the priority current payments (resolution of July 2, 2020 in case No. A45-16349 / 2018).