THE ACTUAL BENEFICIARY OF THE BUSINESS CAN RESPOND WITH LOSSES TO THE CONTROLLED PERSON IN HIS PERSONAL BANKRUPTCY

THE ACTUAL BENEFICIARY OF THE BUSINESS CAN RESPOND WITH LOSSES TO THE CONTROLLED PERSON IN HIS PERSONAL BANKRUPTCY

THE ACTUAL BENEFICIARY OF THE BUSINESS CAN RESPOND WITH LOSSES TO THE CONTROLLED PERSON IN HIS PERSONAL BANKRUPTCY
The creditor applied to the court for inclusion of the claim in the debtor's register (case no. A60-49300/21).

The courts of two instances refused to satisfy the application, citing the fact that there was a lease relationship between the debtor and the creditor, but the fact that the debtor caused losses to the creditor has not been proven.

The cassation sent the dispute for a new consideration, pointing out that as one of the reasons for refusing to satisfy the stated claims for recognizing the debtor's debt to the creditor as justified and including it in the register by the courts, it was indicated that the debtor did not have the necessary status of a person from whom the claimed losses could be recovered, since the debtor was neither the head, not a member of the lender. He was also not a member of the management bodies and had no opportunity to influence the management decisions made by the plant, whereas (according to the courts) in order to be held accountable for losses caused to the company, the debtor must have a special legal status, namely, the debtor's entry into the management bodies of the company or into the membership of participants.

At the same time, the above–mentioned position of the courts on the impossibility of recovering losses caused to the company from the person who caused them, only because he does not have the status of the head of such a company or its participant, cannot be recognized by the court as sufficient grounds for a formal refusal to satisfy the claims.

In making this claim, the creditor, including (but not only) consistently referred to the controlling status of the debtor in relation to the creditor, arguing that it was as a result of the actions of the debtor as the true beneficiary of the creditor that losses were caused to the latter by setting a rent for leased property many times higher than the average fee for similar commercial facilities.

Thus, both in the presence and in the absence of any corporate connection between the creditor and the debtor, the requirement for inclusion in the register of creditors' claims arising from causing losses to the creditor was subject to consideration on the merits.

23.10.2024