Where should a shareholder apply to in case of bankruptcy of a developer?

The bankruptcy trustee of a bankrupt developer decided to challenge the decisions made by lower courts.  They returned the claim filed by one of the creditors to include the debt in the register of creditors’ claims with the reference to the necessity to contact the bankruptcy trustee with such an issue.  However, the Supreme Court of Russia recalled that this procedure does not work in all cases.

As part of the developer's bankruptcy case, one of the equity holders (an individual) demanded in court that the debt owed to him should be included in the register of creditors’ claims. The claim was returned by the court of first instance, and the same position was taken by the court of appeal and the district court. The courts’ representatives agreed that the creditor must first apply to the bankruptcy trustee with a similar claim, which was not done.

At the same time, the claim itself was based on an equity participation agreement, under which the creditor was to receive non-residential premises with an area of 71.5sq.m.

The Supreme Court of the Russian Federation recalled that the Insolvency Law does indeed provide for the procedure, mentioned by the courts - for equity holders to apply first to the trustee, and in the event of disagreements, to the court. However, in such cases, we are talking about premises with an area of no more than 7 sq.m., which means that the rule of law could not be applied to the situation under consideration.

Therefore, the court was obliged to consider the claim and, if justified, include the debt in the register of creditors’ claims of the bankrupt developer (decision No. 305-ES21-19839 dated February 11, 2022 in case № A41-110962 / 2019).