RusBankrot
We know everything about bankruptcy
16/09/2024
Monday
THIS DAY IN HISTORY:
16 September 
1970 "Black Wednesday" of the British pound sterling.
1970 The Montreal Treaty for the Protection of the Earth's Ozone Layer was signed.
1970 Mexico declared independence from Spain.
16 September
1970 "Black Wednesday" of the British pound sterling.
1970 The Montreal Treaty for the Protection of the Earth's Ozone Layer was signed.
1970 Mexico declared independence from Spain.
THE SPECIFICS OF CHALLENGING THE PREFERENTIAL SATISFACTION OF CLAIMS WITH THE SENIORITY OF COLLATERAL
As part of the bankruptcy case of a citizen, the bank appealed to the court with an application for the recovery of funds from the Rosvoenipoteka to the bankruptcy estate of the debtor with subsequent redistribution in favor of the pledgee (case No. A56-90497/21).
The courts of two instances satisfied the application, guided by the fact that the collateral (apartment) was sold at auction, and the proceeds were used to repay the claims of the subsequent creditor (Rosvoenipothek). At the same time, the satisfaction of claims had to be carried out after the satisfaction of the bank's claims, based on the seniority of collateral defined in the law. The receipt of funds received from the sale of real estate to the account of Rosvoenipoteka is a violation of the order of satisfaction of the bank's requirements.
The cassation sent the dispute for reconsideration, pointing out that the bank, referring to the violation of its rights as the original pledgee by the fact that Rosvoenipoteka received satisfaction under the loan agreement at the expense of the collateral, did not appeal the city court's decision in absentia, although it did not deny that it was involved in the specified case and received notification of the plaintiff's intention apply to the court with a demand for foreclosure on the apartment.
Similarly, the bank did not take measures to appeal the actions of the bailiff, despite arguments about the violation of the order of distribution of funds received from the sale of the collateral or to resolve disagreements on the distribution of proceeds from the sale of the apartment.
Evidence that the bank notified the bailiff, who was in charge of the relevant enforcement proceedings, of the existence of the primary right of pledge and the effective absentee judgment of the city court, is not provided in the materials of this dispute.
Since the bank has not filed a claim to challenge a transaction made by the debtor or other persons at the expense of the debtor within the framework of the dispute under consideration, the courts should have clarified the issue of admissibility and the existence of legal grounds for considering the bank's claim in the framework of a bankruptcy case. The courts have not clarified whether the bank's claim is aimed at replenishing the debtor's bankruptcy estate.
The courts also did not take into account that Rosvoenipoteka received satisfaction of its claims on the basis of a judicial act that entered into force and in the absence of recognition of illegal actions of the person authorized to distribute the funds received from the sale of the collateral. Within the framework of this dispute, the bank did not refer to and the courts did not establish the abuse of the rights of the pledgee by Rosvoenipoteka.
The courts of two instances satisfied the application, guided by the fact that the collateral (apartment) was sold at auction, and the proceeds were used to repay the claims of the subsequent creditor (Rosvoenipothek). At the same time, the satisfaction of claims had to be carried out after the satisfaction of the bank's claims, based on the seniority of collateral defined in the law. The receipt of funds received from the sale of real estate to the account of Rosvoenipoteka is a violation of the order of satisfaction of the bank's requirements.
The cassation sent the dispute for reconsideration, pointing out that the bank, referring to the violation of its rights as the original pledgee by the fact that Rosvoenipoteka received satisfaction under the loan agreement at the expense of the collateral, did not appeal the city court's decision in absentia, although it did not deny that it was involved in the specified case and received notification of the plaintiff's intention apply to the court with a demand for foreclosure on the apartment.
Similarly, the bank did not take measures to appeal the actions of the bailiff, despite arguments about the violation of the order of distribution of funds received from the sale of the collateral or to resolve disagreements on the distribution of proceeds from the sale of the apartment.
Evidence that the bank notified the bailiff, who was in charge of the relevant enforcement proceedings, of the existence of the primary right of pledge and the effective absentee judgment of the city court, is not provided in the materials of this dispute.
Since the bank has not filed a claim to challenge a transaction made by the debtor or other persons at the expense of the debtor within the framework of the dispute under consideration, the courts should have clarified the issue of admissibility and the existence of legal grounds for considering the bank's claim in the framework of a bankruptcy case. The courts have not clarified whether the bank's claim is aimed at replenishing the debtor's bankruptcy estate.
The courts also did not take into account that Rosvoenipoteka received satisfaction of its claims on the basis of a judicial act that entered into force and in the absence of recognition of illegal actions of the person authorized to distribute the funds received from the sale of the collateral. Within the framework of this dispute, the bank did not refer to and the courts did not establish the abuse of the rights of the pledgee by Rosvoenipoteka.
19.06.2024
