RusBankrot
We know everything about bankruptcy
03/05/2024
Friday
THIS DAY IN HISTORY:
3 May 
2021 World Press Freedom Day
2020 World Press Freedom Day
1957 Collective farms were transformed into the state farms in the USSR.
1957 Collective farms were transformed into the state farms in the USSR.
1841 New Zealand was declared a British colony.
1841 New Zealand was declared a British colony.
3 May
2021 World Press Freedom Day
2020 World Press Freedom Day
1957 Collective farms were transformed into the state farms in the USSR.
1957 Collective farms were transformed into the state farms in the USSR.
1841 New Zealand was declared a British colony.
1841 New Zealand was declared a British colony.
THE ASSIGNED RIGHT OF CLAIM DOES NOT ALLOW TO INITIATE THE PROCEDURE IN A SIMPLIFIED MANNER
The creditor in court demanded that the debtor be declared bankrupt.
The court of first instance refused to accept the application, based on the fact that the creditor did not have the right to apply for recognition of the debtor as bankrupt in the absence of a court decision that had entered into legal force, which would have confirmed the creditor's claims to the debtor.
The court pointed out that initially the creditor for the disputed relationship was a microfinance company, the evidence of which the Bank of Russia has a license for banking operations has not been established. It is also not possible to establish from open sources whether the organization has such a permit.
The Court of Appeal sent the issue for a new consideration.
The appeal pointed out that if the claims are based on a loan agreement that was concluded with a microfinance organization operating under a license from the Central Bank of the Russian Federation, then the creditor has the right to use a simplified procedure for initiating bankruptcy proceedings – in the absence of a court decision that has entered into force against the debtor.
The arguments of the cassation complaint indicate that the microfinance organization is not a credit institution and does not conduct banking activities (Definition of transfer dated 10/20/2023 in case No. A41-19651/2023 (305-ES23-13866)). It follows from this that the creditor cannot file an application for declaring the debtor bankrupt without a court decision on debt collection that has entered into force.
In addition, the bank indicated that the creditor had not filed for bankruptcy of the debtor within the time period determined by law, since 15 days had not passed between the day of publication of the notice of the intention to apply to the court with the above-mentioned application and the day of the creditor's application to the court.
The court of first instance refused to accept the application, based on the fact that the creditor did not have the right to apply for recognition of the debtor as bankrupt in the absence of a court decision that had entered into legal force, which would have confirmed the creditor's claims to the debtor.
The court pointed out that initially the creditor for the disputed relationship was a microfinance company, the evidence of which the Bank of Russia has a license for banking operations has not been established. It is also not possible to establish from open sources whether the organization has such a permit.
Appeal position
The Court of Appeal sent the issue for a new consideration.
The appeal pointed out that if the claims are based on a loan agreement that was concluded with a microfinance organization operating under a license from the Central Bank of the Russian Federation, then the creditor has the right to use a simplified procedure for initiating bankruptcy proceedings – in the absence of a court decision that has entered into force against the debtor.
Grounds for transfer
The arguments of the cassation complaint indicate that the microfinance organization is not a credit institution and does not conduct banking activities (Definition of transfer dated 10/20/2023 in case No. A41-19651/2023 (305-ES23-13866)). It follows from this that the creditor cannot file an application for declaring the debtor bankrupt without a court decision on debt collection that has entered into force.
In addition, the bank indicated that the creditor had not filed for bankruptcy of the debtor within the time period determined by law, since 15 days had not passed between the day of publication of the notice of the intention to apply to the court with the above-mentioned application and the day of the creditor's application to the court.
16.11.2023
