THE DISTRICT COURT SPECIFIED THE REASONS FOR THE COMPENSATORY FINANCING RECOGNITION

The issues of compensation payments during the bankruptcy cases consideration and challenging a number of transactions between the debtor and his/her participants often arise in judicial practice.

Recently, we have covered one of such precedents, in which the Supreme Court of Russia lowered the creditor's claim, recognizing it as compensatory.

Another similar dispute has recently been considered by the District Court.

The legal situation was as follows: the company was declared bankrupt, and the manager in the framework of bankruptcy proceedings filed a claim to contest the money transfers during the period of suspicion against the debtor's participant. The ground for transfers was the loan obligations between the debtor and its participant.

The court of the first instance supported the manager and decided to return the money to the bankruptcy estate, while the court of appeal sided with the creditor, indicating that there were no grounds for declaring the transaction invalid: the loans provided to the debtor could not significantly affect his financial state.

However, the district court did not find the arguments of the appeal instance convincing, stating that in the situation under consideration, the borrowed nature of financing was hidden from other creditors, so they could not know about the possible financial problems of their debtor. According to this, in a situation where it was not possible to get out of the crisis by means of such a hidden financing, the participants, who provided financing, bear the losses associated with reorganization activities.

As for the return of borrowed funds, it was made not at the expense of net profit, but at the expense of current earnings, which is an abuse of law (resolution of August 5, 2020 in case No. A60-55945 / 2017).