THE FATE OF COLLATERAL IS DETERMINED BY COURT, BUT NOT BY CREDITORS

The Commercial Court of the Far Eastern District has recently considered a case on the complaint of the crisis manager. In the course of the bankruptcy of the debtor, a disagreement arose between him and the collateral creditor about the method of safekeeping the pledged property. The crisis manager tried to resolve the contradiction in court.

Initially, the manager offered to conclude an agreement to ensure the safety of the pledged property. At the same time, the collateral creditor came up with an initiative to conclude a property protection agreement with the help of company proposed by him.

After negotiations that took place between the security organization proposed by the creditor and the bankruptcy manager, the latter came to the conclusion that his option in the form of an agreement to ensure the safety of property was more beneficial for the debtor. Despite this, the collateral creditor insisted on the conclusion of the agreement indicated by him.

The court of first instance accepted the position of the manager, satisfying his proposal to conclude an appropriate agreement with the counterparty indicated by him.

However, the court of appeal overturned the ruling and rejected the manager's claim. The motivation of the three judges was that when making decisions concerning the pledged property, the opinion of the collateral creditor must be taken into account.

The district court did not agree with these arguments, recalling that the right to approve the procedure and conditions for the preservation of the pledged property granted to the collateral creditor cannot be considered unconditional.

According to the opinion of the board, it cannot bind both the persons involved in the insolvency case and the court when making the appropriate decision on the case.

Only the fact of the collateral creditor's disagreement with the conclusion of the contract on the safekeeping of the property proposed by the bankruptcy manager should not interfere with the exercise of judicial control over both the bankruptcy estate of the debtor and the exercise of the rights to judicial protection of the bankruptcy manager who acts in the interests of the debtor. The last word on this issue remains with the court (Resolution No. F03-5522 / 2020 of January 12, 2021).