WHEN CHALLENGING THE REPAYMENT OF A DEBTOR'S BORROWED DEBT, AN INCREASED STANDARD OF PROOF IS APPLIED

WHEN CHALLENGING THE REPAYMENT OF A DEBTOR'S BORROWED DEBT, AN INCREASED STANDARD OF PROOF IS APPLIED

WHEN CHALLENGING THE REPAYMENT OF A DEBTOR'S BORROWED DEBT, AN INCREASED STANDARD OF PROOF IS APPLIED
The manager appealed to the court with a demand to challenge the operation to repay the debtor's spouse of the bankrupt's borrowed debt (case no. A40-185777/20).

Refusing to satisfy the application, the courts of two instances proceeded from the fact that the disputed payments were made not by the debtor, but by his wife, and there was no evidence of payments made at the expense of the debtor's personal funds. The courts also noted that the applicant mistakenly qualifies the consequences of making disputed payments by a third party, as a result of which, in the applicant's opinion, a separate creditor was or may be given greater preference in terms of satisfying claims that existed before the disputed transaction.

The courts also noted that in the case in question, the disputed payments were made by the spouse of the debtor, who was not working at the specified time. The materials of the dispute also do not contain evidence that the debtor had income at the time of the dispute.

The disputed payments were made from the personal account of a third party, whereas there is no evidence that such payments were made at the expense of the debtor's personal funds.

Referring the dispute for a new consideration, the cassation noted that the courts had not established circumstances confirming the actual issuance of a loan to the debtor, as it did not follow that the courts had investigated the issue of the financial ability of the lender to provide funds in the declared amount to the defendant.

According to the account statement, there is no reference to the loan agreement or repayment of the debt for the debtor in the appointment of payments made by the debtor's spouse in favor of the defendant.

In addition, the conclusion of the courts is unfounded that the principle of distribution of shares does not apply to property held in the form of non-cash funds. How is it not based on the norms of the law that the courts indicate that the disputed payments were made by the debtor's spouse, who was not working at the specified time; the debtor has no evidence of income; and also that payments were made from the spouse's personal account, whereas there is no evidence that such payments were made at the expense of the debtor's personal funds submitted.


Freepik


09.04.2024