Generalization of the practice of consideration by the arbitration court of the Irkutsk region of disputes regarding compensation for losses caused by arbitration managers. Recovery of damages from the bankruptcy trustee Claim procedure for recovery of losses from the bankruptcy trustee

14.03.2012

Gaps in the law hinder the effective and quick resolution of disputes regarding the recovery of damages from the arbitration manager.

· When an interested person has the right to file a claim in court to recover damages from the insolvency administrator

· From what point should the statute of limitations be calculated in cases of recovery of damages from an arbitration manager?

· Why do the rules of jurisdiction for disputes regarding the recovery of damages from an arbitration manager make it difficult to resolve such cases?

In accordance with the Work Plan of the Sixth Arbitration Court of Appeal for the second half of 2011, a summary of judicial practice in considering cases relating to the civil liability of arbitration managers in insolvency (bankruptcy) cases was carried out. The results of this generalization revealed a number of problems that courts face when considering this category of cases.

In 2010, the Court of Appeal considered 20 appeals, and in the nine months of 2011 - 21 appeals against decisions of first instance courts on claims for the recovery of damages from arbitration managers.

Within the framework of these proceedings, different approaches of the courts of first instance to resolving issues related to the procedure for considering such disputes have been identified. The different interpretations are caused by the absence in the Federal Law of October 26, 2002 No. 127-FZ “On Insolvency (Bankruptcy)” (hereinafter referred to as the Bankruptcy Law) of provisions establishing the corresponding procedure. This circumstance necessitated the preparation of this article.

The purpose of the generalization is to analyze the emerging practice of court consideration of this category of cases and to determine preferred approaches to solving the identified problems. When carrying out the generalization, both official statistics and case materials were used.

QUOTE. “The insolvency administrator is obliged to compensate the debtor, creditors and other persons for losses caused as a result of the failure or improper performance by the insolvency administrator of the duties assigned to him in the bankruptcy case and the fact of which was established by a court decision that has entered into legal force” (clause 4 of article 20.4 Bankruptcy Law).

I note that out of a total of 41 appeal proceedings in the case of recovery of losses from the arbitration manager, in 38 cases the plaintiff was an authorized body of the Federal Tax Service. In two cases the plaintiff was the temporary manager of the debtor, and in one case the plaintiff was another creditor.

Courts define differently the moment when the right to file a claim for recovery of damages from the insolvency practitioner arises.

As arbitration practice shows, when considering such claims, courts are faced with difficulties in determining the moment when entitled persons have the right to judicial protection for the following reason. Article 20.4 of the Bankruptcy Law does not define the moment when the right to apply to the court for the recovery of damages arises, and as a general rule, the right to recover damages arises from the moment the guilty person commits actions (inactions), the consequence of which was causing harm.

In some cases, arbitration courts assume that the creditor has the right to file a claim for damages before the date of completion of bankruptcy proceedings.

This approach is explained by the likelihood of discovering the debtor’s property, through which it is possible to satisfy the claims of creditors, collect receivables, or obtain execution for previously concluded transactions.

In my opinion, such arguments are justified, since even a small probability of satisfying the claims of creditors after considering a claim for recovery of losses entails the impossibility of determining the proper person in whose favor it is possible to recover losses (if the claims of a certain priority are fully satisfied), as well as the exact amount of losses caused creditors (if claims are partially satisfied).

Taking measures aimed at searching, identifying and returning property held by third parties;

Ensuring the safety of the debtor's property;

Presentation of claims to third parties who have a debt to the debtor for its collection (clause 2 of Article 129 of the Bankruptcy Law).

Article 142 of the Bankruptcy Law establishes that the claims of creditors of each priority are satisfied after the claims of the creditors of the previous priority are fully satisfied.

If the debtor's funds are insufficient to satisfy the claims of creditors of one priority, the funds are distributed among the creditors of the corresponding priority in proportion to the amounts of their claims included in the register of creditors' claims, unless otherwise provided by the Bankruptcy Law.

Thus, before the end of bankruptcy proceedings, it is impossible to establish the fact of incomplete satisfaction of the bankruptcy creditor’s claims, their final amount and, accordingly, the amount of its possible losses. This conclusion also corresponds to the position of the Supreme Arbitration Court of the Russian Federation.

For example, the expenditure by an insolvency administrator, in violation of the provisions of Article 138 of the Bankruptcy Law, of funds received from the sale of the debtor’s property, which was the subject of a pledge, to satisfy current obligations presupposes that the secured creditor has the right to go to court, regardless of the date of completion of bankruptcy proceedings.

This is due to the fact that a conclusion about a violation of the right of the secured creditor to satisfy the claim against the debtor can be made before the specified date. A similar situation arises when the order of satisfaction of demands for current payments is violated.

Such an appeal must contain demands to recognize as illegal the actions of the bankruptcy trustee of the debtor in the unreasonable expenditure of funds of the bankrupt enterprise and to oblige him to return these funds to the bankruptcy estate for subsequent distribution among creditors.

The moment when the limitation period begins to count also causes serious difficulties for the courts

Inextricably linked with the problem of determining the right to go to court is the question of the beginning of the limitation period for claims for damages. The uncertainty that has arisen in judicial practice regarding the moment when the right to go to court arises also gives rise to the problem of calculating the limitation period.

The judicial acts are motivated by the fact that the Federal Tax Service of Russia has missed the statute of limitations for presenting these claims, established by Article 196 of the Civil Code of the Russian Federation and calculated from the moment when the plaintiff learned about the violations committed by the defendant in the performance of his duties.

In this case, the courts proceeded from the fact that the limitation period is subject to calculation from the date of the arbitration court’s ruling, which established the fact of improper performance by the defendant of the duties of the bankruptcy trustee. The defendant stated that the limitation period had expired, which, by virtue of paragraph 2 of Article 199 of the Civil Code of the Russian Federation, excludes the possibility of satisfying the claim.

However, by a resolution of the Federal Antimonopoly Service of the Far Eastern District, the judicial acts of the first and appellate instances were canceled, and the case was sent for a new trial. At the same time, the cassation instance indicated that the fact of establishing the unlawful behavior of the bankruptcy trustee in itself is not enough to hold him accountable for the consequences in the form of losses. For such liability to occur, it is necessary to prove the occurrence of negative consequences in the form of real damage or lost profits as one of the elements of the offense established by Article 15 of the Civil Code of the Russian Federation.

Thus, in relation to the issue of calculating the limitation period for the claims under consideration, it is necessary to establish not only the moment from which the plaintiff learned or should have learned about the violations committed by the defendant during bankruptcy proceedings, but also the losses caused by such violations.

The plaintiff cited the remaining outstanding claims as damages. At the same time, the plaintiff learned or had the opportunity to find out about the insufficiency of the bankruptcy estate and the impossibility of obtaining satisfaction during the bankruptcy proceedings only upon completion of the bankruptcy proceedings.

Creditors are deprived of the right to repeatedly submit claims for recovery of losses from the arbitration manager

Obstacles in the exercise of creditors' rights to judicial protection of property rights may also be due to the possibility of termination of proceedings on re-filed claims, despite their filing within the limitation period. The subject (collection of losses) and the basis (commitment by the arbitration manager of actions that resulted in losses) of repeated claims will coincide with the subject and basis of previously filed claims. This circumstance serves as the basis for termination of the proceedings (clause 2, part 1, article 150 of the Arbitration Procedure Code of the Russian Federation) due to the difficult nature of recognizing as new grounds for filing a repeated claim the refusal to satisfy the requirements of a previously filed claim and the completion of bankruptcy proceedings.

For example, the decision of the court of first instance was overturned and the proceedings on the recovery of damages from the bankruptcy trustee were terminated due to the fact that earlier (before the completion of the bankruptcy proceedings) similar claims had already been the subject of consideration by the arbitration court. At the same time, during the initial consideration of the claim, the claims were denied, including due to the fact that bankruptcy proceedings against the debtor had not been completed.

In all other cases, creditors are not deprived of the opportunity to appeal against his actions during bankruptcy proceedings in accordance with Article 60 of the Bankruptcy Law. At the same time, as part of the consideration of a complaint against the actions of the arbitration manager, the issue of causing losses is subject to mandatory determination.

Disputes regarding the recovery of losses from the arbitration manager are not always considered by the same court as bankruptcy cases

Another problem that arises when considering claims for the recovery of losses from arbitration managers is the jurisdiction of these cases.

Disputes regarding the recovery of damages from the arbitration manager are considered according to the rules of claim proceedings.

The legislation does not establish special territorial jurisdiction for this category of disputes, which involves consideration of claims by the court conducting bankruptcy proceedings. However, the application of general rules on territorial jurisdiction to such disputes creates some difficulties.

The location of the debtor, which determines the jurisdiction of the bankruptcy case, does not always coincide with the place of residence of the arbitration manager.

Because of this, a claim for damages may be filed in a court that did not conduct bankruptcy proceedings.

When filing a claim for recovery of losses in the court that heard the bankruptcy case, the case is transferred to another court at the place of residence of the arbitration manager (Clause 3, Part 2, Article 39 of the Arbitration Procedure Code of the Russian Federation).

Filing a claim for losses in a court that has not considered the bankruptcy case entails the impossibility of this court establishing the circumstances that serve as conditions for bringing the defendant to civil liability in the form of compensation for losses. Consideration of this category of disputes presupposes that the court has at its disposal an extensive list of evidence (documents) containing data on the debtor’s possession of property, the procedure for its sale, the procedure and justification for spending funds, etc.

Given the volume of documents in a bankruptcy case, the likelihood of them being presented to a court hearing a claim for damages is extremely low.

Another issue when there is a discrepancy between the courts that considered the bankruptcy case and the claim for the recovery of losses is the right of the court considering the claim for the recovery of losses to re-evaluate the judicial act adopted in the bankruptcy case.

Thus, the decision of the court of appeal changed the decision of the court of first instance to recover from the bankruptcy trustee the losses that constitute the payment to the hired specialist, whose involvement was previously recognized by another court of first instance to be unfounded.

In changing the decision, the appellate court proceeded from the fact that the amount of unreasonably paid funds was established by the court’s ruling in the bankruptcy case that entered into legal force. These funds were not returned to the bankruptcy estate, causing losses to the creditors.

However, a re-evaluation of a judicial act adopted within the framework of a bankruptcy case leads to a violation of Article 16 of the Arbitration Procedure Code of the Russian Federation, which establishes the binding nature of judicial acts that have entered into legal force.

The appellate court stated the following. After the issuance of a judicial act in the bankruptcy case, the involved organization continued to provide accounting support services until the completion of the bankruptcy procedure and did not receive remuneration. As a result, the monthly cost of the service decreased noticeably, but this fact could not serve as a basis for re-evaluating the judicial act that entered into legal force, since this definition established not the disproportionate remuneration for accounting services, but the fact that it was unreasonable to attract a third-party organization to provide accounting services.

As an option to resolve the problem, it can be proposed to establish special jurisdiction for disputes regarding the recovery of losses caused by the improper performance by the arbitration manager of his duties in a bankruptcy case, in which they would be considered by the court hearing the bankruptcy case.

Summary prepared
judge of the Sixth Arbitration
court of appeal
Kozlova T.D.

"Arbitration Practice" No. 3, 2012

As part of the insolvency process for an individual or legal entity, the court appoints a person authorized to carry out actions aimed at organizing activities that will result in satisfying the claims of creditors, as well as monitoring the safety of the debtor’s property. Naturally, the powers that are entrusted to him are quite serious, so some responsibility is provided for their incorrect implementation. In this article we will look at how damages are recovered from an arbitration manager.

Manager's responsibilities

The activities of this official are limited to the following activities:

• organization of actions aimed at determining the financial condition of the debtor and ensuring the safety of property;
• performing a detailed review and assessment of the financial situation of the insolvent person;
• registration and preservation of a list of claims, its issuance at the request of the court or creditors;
• identifying cases of administrative violations of rights, as well as informing relevant services about this;
• writing claims to a judicial institution, and jurisdiction plays a decisive role in determining the place where the documentation should be sent;
• providing the opportunity to spend money rationally and purposefully while performing professional activities;
• performing an assessment of the circumstances as a result of which the borrower became bankrupt and determining whether they were fictitious;
• attracting accredited institutions to fulfill their promises during court hearings, etc.

Note!

In case of failure to fulfill or dishonest fulfillment of the obligations established in Federal Law No. 127 of 2002, the arbitration manager has the right to bring both administrative and criminal liability, release or temporary suspension from work.

Legal component of the issue

The candidacy of the manager is selected on the basis of the main requirements specified in Article 20.2 of Federal Law No. 127. The fact is that any self-regulating company has the right to approve its procedure for selecting the person who will carry out the affairs of the manager.

The citizen selected for this position must know and be guided by the legislation of our country in the field of bankruptcy, as well as:

1. tax;
2. criminal;
3. administrative;
4. civil codes.

It is possible to release or remove a person from his position only in the manner specified in Article 20.5 of the Insolvency Law.

When does the bankruptcy trustee's liability arise?

The manager usually faces administrative punishment for these violations of the rights of other people and organizations:

• causing damage to the property of an insolvent person;
• concealing information about the borrower's property and solvency, as well as providing false information about this;
• provision of knowingly incorrect information regarding financial statements or other documents;
• violation of the established order of priority in fulfilling the requirements of lenders, as a result of which a certain person (or persons) were provided with unjustified advantages;
• improper performance of one’s own duties, which is approved by the insolvency law, etc.

The arbitration manager has the right to be removed from fulfilling his own obligations due to exceeding his powers or failure to comply with the requirements established by law due to the application of the following persons:

1. debtor;
2. creditor.

Even if the court ruling is overturned, this is not a reason to reinstate the former manager in his rights.

After completing the procedure, no later than three days from the entry into force of the court decision regarding the administrator, a notification about this must be sent to the SRO. Then the citizen is expelled from the board, and the relevant information is entered into the EFRS.

The SRO has the right to remove an official from performing his duties when violations related to his professional activities are found. For example, the liability period has expired, the deadline for paying periodic contributions has been missed.

The arbitration manager is required to compensate for the damage caused to the debtor and bankruptcy creditors. If a crime has been committed (economic or civil), criminal liability arises against the manager.

What proves the manager’s actions are illegal?

Based on established practice, it can be seen that quite often there are cases when applications from participants in the insolvency process to remove the manager from work and assign him an appropriate punishment are rejected. The main reason for refusal is usually the lack of evidence of a crime or insufficient evidence collected.

Note!

It is possible to remove an arbitration manager only when a lot of serious evidence has been collected against him.

Before suing the insolvency practitioner, it is necessary to collect significant evidence confirming the illegality of his actions, so that it is possible to present clear arguments to the judge:

• organize the management of the manager’s affairs in such a way that he submits a report on his activities once a month. Thanks to this, the college of creditors has the opportunity to independently verify the actions performed by the official and timely monitor violations;
• form a committee of petitioners to constantly review and guide the work of the manager;
• immediately upon establishing the fact of illegal actions, file an appeal to the arbitration court;
• if deviations from the standard work scheme are insignificant, you can complain to the SRO or Rosreestr. Thanks to claims made in writing, the court will have an overall picture of the performance of the manager’s duties;
• conduct a thorough check of the targeted spending of funds intended for the transfer of remunerations to accredited people attracted by the manager. The fact is that cases in which the manager deliberately inflates their fees occur quite often;
• All bankruptcy creditors are required to monitor the actions of the arbitration manager. After all, it is they who are directly interested in the lawful conduct of the case, and only thanks to the common opinion there will be a result.

When filing a complaint against a manager’s work with the court, it is necessary to do so as quickly as possible. The longer this issue is postponed, the less likely it is that the applicant’s demands will be satisfied. It is better if more creditors participate in the petition.

Compensation in court

Judicial practice shows that the procedure for compensation for damage caused as a result of extra-legal actions of the manager is not regulated by bankruptcy legislation. It is for this reason that the conditions for reimbursement of costs occur on the basis of Art. 15 GK. Moreover, the damage caused cannot be considered as a classification specified in the Code. In fact, this is a combination of certain types of damage:

• real;
• lost benefits;
• violations of citizens' rights.

There are no criteria that influence the deadline for drawing up an appeal for compensation for damage caused as a result of the actions of the manager. The moment of the offense is the day on which it was committed. As a result, damage was caused to the participants in the trial.

In accordance with existing judicial practice, the conclusion suggests itself that compensation for damages from the arbitration manager in favor of the debtor in certain situations may occur during the bankruptcy procedure. And most often - after the bankruptcy proceedings are over.

Note!

Only the court can decide whether it is necessary to recover damages from the insolvency administrator.

This practice was established as a consequence of the general requirement of the legislation of our country regarding compliance with the order of fulfillment of existing creditor claims. In other words, until the end of the bankruptcy procedure it is impossible to assess whether the claims have been fully satisfied and what the extent of the damage is.

The procedure for collecting existing losses from the bankruptcy trustee in a bankruptcy case is established by Resolution of the Plenum of the Supreme Arbitration Court No. 91. Compensation for damage that was caused to citizens participating in the proceedings is made on the basis of a court decision from the money of the SRO compensation fund. Claims for payment of compensation may be presented to the manager himself, or may also be made by transferring funds allocated for insurance.

When the manager does not agree to comply with the requirements and does not take any action to resolve this issue within 30 days, the applicant has the opportunity to appeal to the SRO. To do this, it is necessary to prepare documentation confirming the unlawful actions of the manager. The amount of compensation in this case will be limited to five million rubles in the context of each situation of damage.

Why can a court make a negative decision on damages?

Appeals from lenders regarding the collection of compensation transfers for damage resulting from the management of an official may be rejected by the arbitration court. It is worth highlighting the main reasons that usually serve as a refusal to satisfy lenders’ demands:

1. full compliance with competitive requirements;
2. there is no corpus delicti, because no violations were identified;
3. the addressee does not match the information specified in the application. For example, there is no manager in this SRO;
4. there is no court decision on such a violation;
5. a set of documents, on the basis of which certain conclusions arise, was not transmitted in full, etc.

State duty

To consider the application, as a result of which a decision is made to recover damages from the manager or this procedure is refused, a state fee is charged. Its value is determined depending on the norms of the tax code of our country.

Conclusion

Bankruptcy is a complex proceeding in which the interests of all parties are considered. It is impossible to recover damages from the manager outside the framework of the bankruptcy case. In order for the claims of creditors to be satisfied in full, they are obliged to control all the actions of the manager, and also speak in a timely manner about bringing the person to justice. The required result can be achieved solely on the basis of the presented reliable evidence.

A claim against the bankruptcy trustee is possible. Implementing bankruptcy proceedings is a last resort measure to relieve a company’s debts. When it is carried out, the management of a company or property by an individual (including read about it at the link) is carried out by a specially appointed person - a bankruptcy trustee or an arbitration manager. This person evaluates all transactions of the debtor company, has the right to cancel transactions on accounts if he considers them unprofitable, etc.

And granting these rights to a manager is not a simple temptation, and in practice many succumb to this temptation. Therefore, the law provides for penalties for the manager. When asked how to recover damages from an arbitration manager, our lawyer will give you an answer, carry it out, and help debtors.

What are the grounds for filing a claim against the bankruptcy trustee:

• negligent attitude towards the safety of property;
• non-targeted material payments and expenses;
• payment for sales services;
• expenses at the expense of the debtor company are unreasonable;
• if the receivables are not submitted for consideration.

But it should be remembered that in the question of how to recover losses from the bankruptcy trustee, you need to prove and have very good reasons for this.

If everything is done correctly, then the claim for damages from the insolvency administrator will be satisfied. You can be one hundred percent sure of this. The main thing is to take the issue extremely seriously. You must have collected the evidence base and correctly completed all the necessary documents. Then no problems will definitely arise. There is no time to delay in this matter. Everything needs to be done correctly and at the highest level.

We also note that in some cases a claim against the bankruptcy trustee may be brought even before the completion of the bankruptcy procedure. Within the framework we will define the grounds and position.

Recovery of damages from an arbitration manager with jurisdiction is rarely carried out, but such a procedure does occur. Here, too, you need to fill out all the documents correctly and be one hundred percent sure that you are right.

Useful: watch the video with advice from a bankruptcy lawyer, write your problem in the comments of the video on the channel and we will definitely find a solution to the situation

For a criminal resolution of the issue, the unlawful activity of the manager must be on a particularly large scale.

You can also present:

• claim to the bankruptcy for registration of property rights. In the case when he actually owns the property, but does not have a certificate for this property.
• claim to the bankruptcy court for termination of the contract.

If you have any questions, you should contact our specialists, who have proven themselves to be the best. Then everything will be fine. Just clearly state the essence of the problem and we will help you solve the problem as quickly as possible.

I found this:

When considering the issue of invalidity of a transaction, it is necessary to compare the consequences that occurred as a result of the transaction with what the creditor had the right to count on when presenting a claim during bankruptcy proceedings. (Determination of the SCES of the RF Armed Forces dated March 10, 2015 in case No. A40-74090/2012)
In this case, it was established that the bank provided a loan to the borrower - an individual, as security for which the borrower mortgaged an apartment to the bank. Subsequently, funds were transferred from the account of the bank's client company to the borrower's account with reference to the provision of a loan by this company. On the same day, using funds received from the company, the borrower repaid his loan to the bank under the loan agreement, which was the basis for termination of the pledge. After 1 month, the Bank of Russia revoked the bank’s license. As part of the bank bankruptcy case, the bankruptcy trustee applied to the arbitration court to invalidate the banking operations as aimed at preferentially satisfying the claims of the company and the borrower, who were successively the bank's creditors under bank account agreements, including: transfers by the company from the account with the debtor bank to the borrower of funds under the loan agreement; the subsequent transfer by the borrower to the bank of funds received under a loan agreement from the company to fulfill its obligations under the loan agreement. By the ruling of the court of first instance, left unchanged by the ruling of the appellate court, the application was granted, the contested transactions were declared invalid, and the consequences of their invalidity were applied. The cassation court overturned the above judicial acts, refused to satisfy the bankruptcy trustee's application, considering that the content of the disputed banking transactions corresponded to the normal business activities of the debtor and recognized the fact that each of the payments exceeded the threshold value of 1 percent established by clause 2 of Art. 61.4 of the Bankruptcy Law. The cassation court also referred to the fact that the unexecuted payment orders available in the case materials, references to which were contained in the judicial acts of the first and second instances, were transferred to the bank by its clients after the day the disputed transactions were carried out. The Judicial Collegium for Economic Disputes of the RF Supreme Court overturned the Resolution of the Court of Cassation, leaving in force the judicial acts of the courts of first and appellate instances, and noted the following.
Each of the disputed payments exceeded the threshold of 1 percent of the value of the debtor's assets, determined on the basis of the financial statements for the last reporting period preceding the payments. As of the date of the disputed transactions, the company was a creditor of the bank under a bank account agreement. The borrower, after receiving funds from the company under the loan agreement, also became a creditor of the bank under the bank account agreement. The advantage obtained as a result of the controversial transactions was expressed in the fact that the said claim against the bank was terminated outside the framework of the bankruptcy case by terminating the bank’s counterclaim to the borrower for the repayment of debt under the loan agreement. During the disputed period, the debtor had other creditors whose claims were not satisfied in anticipation of the revocation of the license and were then included in the register of creditors' claims. In addition, the controversial operations were interrelated. The Board also noted that, within the meaning of paragraph. 5 p. 1 art. 61.3 of the Bankruptcy Law, when considering the issue of invalidity of a transaction, it is necessary to compare the consequences of this transaction with what the creditor had the right to count on during bankruptcy proceedings. As a result of the above operations, the balance of funds in the third party’s account with the credit institution decreased significantly and the borrower’s obligations to the credit institution under the loan agreement ceased, which, in turn, was the material basis for the termination of the pledge. Thus, the payments disputed by the bankruptcy trustee led to property losses on the part of the debtor’s bankruptcy estate, because The liquid claim of the debtor bank to the borrower, secured by a mortgage, has disappeared from the bankruptcy estate. In the case under consideration, when making settlements in the manner prescribed by bankruptcy legislation, the claim transferred from a third party to the borrower, arising from a bank account agreement, was subject to inclusion in the register of creditors' claims along with the claims of other clients that were not repaid on the eve of bankruptcy, and the secured mortgage, the debtor's requirement to the borrower is to be included in the bankruptcy estate by virtue of Art. 131 of the Bankruptcy Law. It is recommended to take into account the legal approach formed in the present case when assessing the risks of transactions and forming a position when challenging them, analyzing the entire set of interrelated transactions of the debtor and the consequences of their completion from the point of view of the interests of other creditors.