THE SPEED OF HOME SALES IS NO MORE IMPORTANT THAN THE RIGHT TO A ROOF OVER YOUR HEAD

The debtor appealed to the court against the actions of the bidding manager (case no. A56-37561/24).

In rejecting the application, the courts proceeded from the fact that the auctions were conducted by the financial manager in accordance with the regulations on the procedure, terms and conditions for the sale of property approved by the secured creditor, and there were no violations that affected the outcome of the auction and led to infringement of the rights and legitimate interests of the debtor and creditors.

Pointing out that the period from the date of publication to the date of the start of accepting bids for participation in the auction was less than 2 days, which fell on Saturday and Sunday, the debtor believed that this circumstance led to a limitation of the range of potential buyers of property, given that the law sets a period of at least 25 working days.

The courts of the first and appellate instances concluded that the contested auctions were conducted without significant violations of the procedure for their conduct, and did not see any grounds for invalidating them.

The cassation sent the dispute for reconsideration, pointing out that the peculiarity of the present case is that the debt under the loan agreement, the payment of which is secured by the pledge of the debtor's only dwelling, arose not from a target agreement for the purchase of residential premises, but for the transfer to the debtor of ownership of the dwelling from his mother. At the same time, only a part of the cost of the contract price determined by the parties was paid at the expense of credit funds. 

It should also be noted that the borrowed funds were provided at an interest rate significantly different from mortgage rates on similar loans. 

The real estate purchase and sale agreement between the debtor's mother and the debtor was concluded in simple written form, at the time of its conclusion, and also currently registered in the apartment: the debtor, his mother, grandmother, the debtor's sister, her minor son, as well as the husband of the debtor's mother. The rights of these persons were not reflected in the purchase and sale agreement. The debtor's representative provides certificates stating that the debtor is being observed by a psychiatrist for an organic delusional (schizophrenic-like) disorder.

Possible options for retaining the debtor and the persons living in the apartment in case of confirmation of their rights to use the residential premises, which is the only housing (by concluding a settlement agreement, approving a local debt restructuring plan), were not submitted by the courts of the first and appellate instances for consideration, therefore the debtor was actually deprived of the opportunity to submit a local debt restructuring plan, evidence of its reality and feasibility, and, if necessary, finalize it if any shortcomings are found during the consideration of its approval.

In addition, the court did not investigate the possibility of selling the debtor's housing at auction in such a way that the debtor and his family members could be provided with replacement housing at the expense of the proceeds from the sale of residential premises, and creditors' claims would be substantially repaid. In such circumstances, the sale of the debtor's property, in conditions of uncertainty about the place of his further residence and the residence of his family members, is premature. 

 

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