THE COURT: THE AMOUNT OF BANKRUPT’S PROPERTY SALE FEE SHOULD BE FIXED

The case, in which the financial manager of the debtor and the pledged lender could not come to a common opinion, has recently been transferred for consideration of the Commercial Court of the Moscow District. The question concerned the procedure for the sale of the pledged property.

The lender offered to resort to the services of a company that had been found by him, which required a sale fee of the value of the items sold as a reward. The manager insisted on his own services.

The court of both the first and the appellate instances chose the option of a third-party company, but the cassation expressed a different opinion.

The board noted that the very fact of promoting such a form of payment as a sale fee of the value of the sold property does not contradict the law.

However, as a rule, the remuneration is a fixed amount, which does not depend on such a subjective criterion as the demand of third parties.

What is more, it is essentially necessary to pay for the services of the company that sells the property out of the pockets of the debtor and creditors, which makes the conditions unreasonable.

The court has also noted that, as a rule, when selling property through a company that undertakes such a service, a certain set of actions is required. This, among other things, makes the cost of services fixed, since the scope of work in each case is approximately the same.

However, in a situation where the company providing services justifies why it requires a sale fee, as well as what specific actions it should take in excess of the ordinary ones, it is possible to consider such a payment option.

But in the case under consideration, no special conditions were given, and therefore the district court did not find grounds for satisfying the claims of the pledged lender (decision in case No. A40-154344 / 2019 of February 15, 2021).