Challenging the decision of the meeting of creditors within the deadline. AS of Kurgan region

Are you here: Reporting

15.02.2018

Approved

By resolution of the Presidium

Arbitration Court

Magadan region

dated 02/09/2018 No. 3

GENERALIZATION

judicial practice of application of bankruptcy legislation on issues related to the invalidation of decisions of creditors' meetings in bankruptcy proceedings for 2016 - 2017

In accordance with clause 4.1.2 of the Work Plan of the Arbitration Court of the Magadan Region for the 1st half of 2018, a summary of judicial practice on disputes related to the invalidation of decisions of creditors' meetings in bankruptcy proceedings for 2016 - 2017 was carried out.

As part of the generalization, we analyzed the judicial acts issued by judges of the Arbitration Court of the Magadan Region (hereinafter referred to as the Arbitration Court, the court) in 2016 and 2017 in the framework of insolvency (bankruptcy) cases, as well as the decisions of the Sixth Arbitration Court of Appeal (hereinafter referred to as - Sixth AAC) and the Arbitration Court of the Far Eastern District (hereinafter referred to as the Arbitration Court of the Far Eastern District) on separate disputes related to the invalidation of decisions of creditors' meetings.

During the analyzed period, the arbitration court considered 9 applications to challenge decisions of creditors’ meetings in the framework of insolvency (bankruptcy) cases, including:

In 2016, 7 applications were considered in cases No. A37-1372/2014, No. A37-2410/2014 (two applications were considered); No. A37-205/2015 (four applications were considered);

In 2017, 2 applications were considered in cases No. A37-1339/2013, No. A37-811/2016.

Based on the results of consideration of applications, the arbitration court issued judicial acts, which:

Refusal to invalidate the decision of the meeting of creditors in cases No. A37-2410/2014 (refused on two applications), No. A37-205/2015 (refused on three applications), No. A37-811/2016;

The decision of the meeting of creditors was declared invalid (in cases A37-205/2015, A37-1372/2014);

The application was left without consideration in case No. A37-1339/2013.

Judicial acts of the arbitration court, issued following the consideration of applications to invalidate decisions of creditors' meetings in bankruptcy proceedings, were appealed to the appellate instance in cases No. A37-205/2015 (two complaints) and No. A37-811/2016.

Based on the results of consideration of appeals, the Sixth AAC issued judicial acts, which:

The judicial acts of the court of first instance were left unchanged, and the appeal was not satisfied (in case A37-205/2015);

The complaint was returned to the applicant (in case A37-811/2016).

In the cassation instance, the rulings of the court of first instance and the decisions of the appellate court were not appealed.

1. The adoption by a meeting of creditors of a decision to apply to the court with a petition to declare the debtor bankrupt and open bankruptcy proceedings violates the rights and legitimate interests of the debtor, since when making a decision, the only creditor (authorized body) did not fully take into account the documents submitted by the debtor in confirmation of the activities aimed at restoring solvency.

The presence of such a decision presupposes, by virtue of paragraph 1 of Article 75 of the Bankruptcy Law, the mandatory recognition by the court of the debtor as bankrupt and the introduction of bankruptcy proceedings, which violates the debtor’s right to the possibility of restoring his solvency, since due to the peculiarities of bankruptcy proceedings, the conduct of business activities in this procedure is significantly limited (by materials of case No. A37-1372/2014).

The debtor, the business company "DK", applied to the arbitration court to invalidate the decision of the meeting of creditors dated August 12, 2015, which decided to apply to the arbitration court with a petition to declare the debtor bankrupt and open bankruptcy proceedings.

Believing that the decision was made by the sole creditor on the basis of documents containing incomplete and unreliable information, without taking into account the request of a third party to introduce financial rehabilitation, the applicant pointed to the illegal actions of the temporary manager established by the court.

By ruling dated January 19, 2016, the business company’s application was satisfied. In this case, the court proceeded from the following.

The court found that the decision of the meeting of creditors was made within its competence (clause 2 of Article 12, clause 1 of Article 73 of the Federal Law of October 26, 2002 No. 127-FZ “On Insolvency (Bankruptcy)” (hereinafter referred to as the Bankruptcy Law)), i.e. e. By virtue of paragraph 4 of Article 15 of the Bankruptcy Law, a decision may be declared invalid if a violation of the rights and legitimate interests of persons participating in a bankruptcy case, persons participating in arbitration proceedings in a bankruptcy case, or third parties is established.

The only creditor whose claims are included in the register of creditors of the debtor - the Federal Tax Service - with a vote of 100% participated in the meeting of creditors and made the contested decision.

By virtue of the provisions of Articles 2, 53 of the Bankruptcy Law, priority is given to procedures providing for the restoration of the debtor’s solvency, since such procedures, which allow not only to pay off creditors, but also to restore solvency, are aimed at ensuring the interests of both the debtor’s creditors and the debtor himself.

In contrast, the completion of bankruptcy proceedings means the liquidation of the debtor. This procedure is aimed at satisfying the claims of creditors, primarily through the sale of the debtor’s property, and also provides for the mandatory dismissal of the debtor’s employees.

The inclusion of the issue of the next bankruptcy procedure on the agenda of the first meeting of creditors is made after an analysis of the financial condition of the debtor, depends on the results of such analysis and, above all, the conclusion about the possibility or impossibility of restoring the debtor’s solvency.

The agenda of the meeting of the debtor's creditors dated August 10, 2015 included the following issues: 1) Appeal to the arbitration court with a petition to declare the business company insolvent (bankrupt) and open bankruptcy proceedings; 2) Applying to the arbitration court with a petition to introduce a financial recovery procedure in relation to the business company; 3) Applying to the arbitration court with a petition to introduce an external management procedure in relation to the business company; 4) Applying to the arbitration court with a request to conclude a settlement agreement; 5) Approval of a self-regulatory organization of insolvency practitioners to nominate a bankruptcy trustee; 6) Establishing the amount of remuneration for the bankruptcy trustee; 7) On the formation of a committee of creditors; 8) On the election of a representative of the meeting of creditors; 9) On involving the registrar in maintaining the register of creditors’ claims.

In accordance with paragraph 7 of the General Rules for the preparation, organization and holding by the arbitration manager of meetings of creditors and meetings of creditors’ committees, approved by Decree of the Government of the Russian Federation dated 02/06/2004 No. 56, when holding a meeting of creditors, the arbitration manager ensures that the participants in the meeting of creditors review materials that are subject to approval and ( or) approval by the meeting in accordance with the agenda.

Meanwhile, the minutes of the meeting contain information about the discussion of the first issue, on which a representative of the debtor and the tax authority spoke, then a vote on the agenda of the meeting was recorded, that is, without the provision of information to the temporary manager and without discussing issues, including the second and third on the choice of the subsequent procedure and fourth - on the possibility of concluding a settlement agreement.

From the explanations of the tax authority it follows that the decision on the first issue on the agenda was made on the basis of information about the growing current debt of the business company, as well as on the basis of the written opinion of the temporary manager. The position on the agenda of the creditors' meeting was formed in the voting decision dated August 10, 2015, therefore the explanations of the debtor's representative at the creditors' meeting and the additional documents submitted by him were not taken into account.

Thus, when making a decision, the sole creditor (authorized body) did not fully take into account the documents submitted by the debtor in support of activities aimed at restoring solvency. Consequently, the contested decision was made on the basis of incomplete information about the debtor’s economic activities and its financial condition.

In addition, the meeting agenda was formulated without taking into account Articles 2 and 53 of the Bankruptcy Law, which contain provisions on the priority of procedures providing for the restoration of the debtor’s solvency, since a positive vote on the first issue (declaration of bankruptcy) initially made it meaningless to discuss issues of procedures restoring the debtor’s solvency.

At the same time, from the documents submitted by the debtor, issued by the credit institution (bank), it follows that the business company sold precious metals to the bank in the amount of more than 7 million rubles, which made it possible to repay wage arrears, as well as partially repay current payments. Thus, the debtor was actively involved in the extraction of precious metals and took measures to repay the debt.

2. Holding a meeting of creditors at a different address than the location of the debtor, in a place determined by the arbitration manager, does not contradict the current legislation and does not violate the rights and legitimate interests of creditors and the debtor, because all persons entitled to participate in the first meeting of creditors were duly notified of the time and place of the meeting of creditors; creditors with the amount of claims taken into account for the purpose of determining the number of votes at the meeting of creditors, constituting 100% of the total amount, took part in the meeting of creditors claims of bankruptcy creditors and authorized bodies included in the register of claims of the debtor's creditors.

The absence of the debtor at the meeting of creditors is not grounds for declaring the first meeting of creditors invalid, because in accordance with paragraph 3 of Article 72 of the Bankruptcy Law, the debtor takes part in the first meeting of creditors without the right to vote (based on materials of case No. A37-2410/2014 (1)).

The debtor, business company "M", applied to the arbitration court to invalidate the decisions of the first meeting of creditors, set out in the minutes of the first meeting of creditors dated September 25, 2015.

Believing that the temporary manager violated the requirements of Article 13 of the Bankruptcy Law in terms of proper notification of the debtor, as a participant in the bankruptcy case, and the representative of the founder (participant) of the debtor, as a person participating by force of law in the first meeting of the debtor’s creditors, the applicant indicated that in At the court hearing held on 10/05/2015, he learned that on 09/16/2015, the temporary manager included in the Unified Federal Register of Bankruptcy Information No. 746137 that a meeting of creditors of the business company would be held on 09/25/2015, and the debtor about holding the said first meeting creditors were not properly notified.

By ruling dated January 22, 2016, the business company’s application was denied. In this case, the court proceeded from the following.

In accordance with paragraph 1 of Article 13 of the Bankruptcy Law, proper notification is the sending to the bankruptcy creditor, to the authorized body, as well as to another person who, in accordance with the Bankruptcy Law, has the right to participate in a meeting of creditors, of a notice of a meeting of creditors by mail no later than fourteen days before the date of the meeting of creditors or in another way that ensures receipt of such a message at least five days before the date of the meeting of creditors.

In accordance with paragraph 2 of Article 13 of the Bankruptcy Law, if it is impossible to identify the information necessary for personal notification of the bankruptcy creditor at the place of his permanent or primary residence or location or other person who has the right to participate in the meeting of creditors in accordance with this Federal Law, or if If there are other circumstances that make such notification of these persons impossible, proper notification of such persons is considered to be the publication of information about the holding of a meeting of creditors in the manner prescribed by Article 28 of the Bankruptcy Law.

The court found that the debtor is not at his legal address, does not receive postal correspondence, the debtor’s director refuses to communicate by phone, and does not receive postal correspondence.

The case materials contain evidence of the publication of information about the time and place of the meeting in the EFRSB on September 19, 2015. Thus, the temporary manager took measures to notify the debtor and its management bodies of the time and place of the first meeting of creditors.

The only creditor, business company "G", whose claims were included in the register of claims of the debtor's creditors, who had 100% of the votes, was present at the first meeting of creditors on September 25, 2015, and voted on the agenda items.

In refusing to satisfy the stated requirements, the court took into account that, in accordance with paragraph 3 of Article 72 of the Bankruptcy Law, the debtor takes part in the first meeting of creditors without the right to vote; his absence at the meeting of creditors is not grounds for declaring the first meeting of creditors invalid.

The court found that correspondence sent by the temporary manager and the court to the legal address of the debtor was returned by the postal service organization with a mark indicating the expiration of the storage period.

The temporary manager's repeated demands for the debtor's manager to transfer primary documentation remained unanswered, which confirms the debtor's absence from his legal address.

By virtue of the provisions of paragraph 4 of Article 14 of the Bankruptcy Law, the location of the meeting of creditors chosen by the arbitration manager did not interfere with its holding, because all persons entitled to participate in the first meeting of creditors were duly notified of the time and place of the meeting of creditors.

Since the meeting of creditors of September 25, 2015 was attended by creditors with the amount of claims taken into account for the purposes of determining the number of votes at the meeting of creditors, amounting to 100% of the total amount of claims of bankruptcy creditors and authorized bodies included in the register of claims of creditors of the debtor, the arbitration court came to conclusion on the competence of the meeting of creditors of the business company.

For similar reasons, the ruling dated 02/03/2016 rejected the debtor’s application to invalidate the decisions of the first meeting of creditors set out in the minutes of the first meeting of creditors dated 06/11/2015 (based on case materials No. A37-2410/2014 (2)).

3. The disagreement of one of the creditors with the opinion of the majority does not indicate the illegality of the decision, since the implementation of managerial functions by creditors in resolving emerging issues in a bankruptcy case is implemented through the formation of a collective will based on the principle of subordination of the minority to the majority (based on the materials of case A37-205/2015 (1) ).

The business company "KP" applied to the arbitration court to invalidate the decision of the meeting of creditors of the business company "O" dated October 16, 2015 under item No. 3 of the agenda.

Believing that the decision was made with a significant violation of the procedure for preparing and notifying the meeting, the applicant indicated that the bankruptcy trustee did not provide the business company "KP" with actual access to the materials of the meeting, the Regulations on the procedure for the sale of the debtor's property were not submitted for review in advance, due to with which the applicant was unable to make proposals for the sale of property worth up to 100 thousand rubles, proposals for compensation and offsets were not considered, the adopted Regulations contradict paragraph 6 of Article 139 of the Bankruptcy Law.

The agenda of the meeting of creditors dated October 16, 2015, held on the initiative of the bankruptcy trustee, included three issues: 1) Approval of the bankruptcy trustee’s report on its activities, the results of the bankruptcy proceedings and the cash flow report; 2) On the extension of bankruptcy proceedings for a period of 3 months; 3) On approval of the initial cost and the Regulations on the procedure for the sale of the debtor’s property.

In accordance with Minutes No. 02 dated October 16, 2015, the meeting adopted the following decisions: 1) Approve the bankruptcy trustee’s report on its activities, the results of the bankruptcy proceedings and the cash flow report with comments; 2) Apply to the court with a request to extend bankruptcy proceedings for a period of three months; 3) Approve the initial cost and the Regulations on the procedure for the sale of the debtor’s property

The court found that, due to the provisions of paragraph 4 of Article 15 of the Bankruptcy Law, during the consideration of the case, the applicant’s argument about the adoption of a decision with a significant violation of the procedure for preparing and notifying the meeting was not confirmed.

The notification of the meeting of creditors of the business company “O” on October 16, 2015 was received by the applicant within the period established by law. This notice contained an indication of the possibility of familiarizing with the materials prepared by the bankruptcy trustee for the meeting, indicating the place, time of familiarization and contact telephone number.

Thus, the applicant was notified in advance, in the manner prescribed by Article 13 of the Bankruptcy Law, of the date, time and place of the meeting of creditors of the business company “O”, as well as of the opportunity to familiarize himself with the materials to be considered at the meeting of creditors.

The applicant’s argument is that he was unable to include in the Regulations on the procedure for the sale of the debtor’s property his proposals for the sale of property worth up to 100 thousand rubles. about compensation (offset), the court rejected it, because in accordance with the Regulations proposed by the bankruptcy trustee, two objects of unfinished construction were put up for auction, which, by virtue of the provisions of Article 130 of the Civil Code of the Russian Federation (hereinafter referred to as the Civil Code of the Russian Federation) and paragraph 3 of Article 111 of the Bankruptcy Law, belong to real estate and are subject to sale at auctions held in electronic form, regardless of cost.

In addition, the applicant indicated that during the meeting of creditors, his expressed intention, in order to terminate the debtor’s obligations, to conclude compensation agreements for the disputed real estate specified in the Regulations on the procedure for sale (clause 8 of Article 142 of the Bankruptcy Law) was not considered.

This argument was rejected by the court, because By virtue of the provisions of paragraph 2 of Article 15 of the Bankruptcy Law, the contested decision “On approval of the Regulations on the procedure for the sale of the debtor’s property” was adopted on October 16, 2015 by a majority of votes (69.78%).

4. The absence of evidence of violation by the contested decision of the meeting of the debtor’s creditors of the rights and legitimate interests of the debtor’s creditors established by the Bankruptcy Law or exceeding the limits of the competence of the meeting of creditors is an absolute basis for refusing to recognize the first meeting of the debtor’s creditors as invalid according to the rules of paragraph 4 of Article 15 of the Law (based on the case materials No. A37-205/2015 (2)).

The business company "KP" applied to the arbitration court to invalidate the decision on item No. 1 of the agenda of the meeting of creditors of the business company "O" dated November 18, 2015.

Believing that the exclusion from the agenda of the first issue: “Approval of the procedure for the sale of property” was made unreasonably, the applicant indicated that the authorized body, in violation of Article 10 of the Civil Code of the Russian Federation, using a majority vote, makes decisions that infringe on the rights of other creditors.

By ruling dated January 15, 2016, the application of the business company “KP” was denied. In this case, the court proceeded from the following.

The agenda of the meeting of creditors dated November 10-18, 2015, held on the initiative of the business company "KP", included three issues: 1) Approval of the procedure for the sale of property; 2) On the obligation of the arbitration manager to apply to the court to invalidate transactions made during the period of economic activity by the business company “O”; 3) On the obligation of the arbitration manager to go to court to bring to subsidiary liability the participants and managers of the business company “O”; 4) On the approval of an application for compensation - part of what property and on what conditions will be credited to the business company “KP” as compensation.

In accordance with Minutes No. 03 dated November 18, 2015, the meeting adopted the following decisions: 1) Remove the first issue “Approval of the procedure for the sale of property” from the agenda; 2) Oblige the arbitration manager to apply to the court to invalidate transactions made during the period of economic activity by the business company “O”; 3) Oblige the arbitration manager to go to court to bring to subsidiary liability the participants and managers of the business company “O”; 4) Do not agree to the compensation application.

The court found that, in accordance with paragraph 2 of Article 15 of the Bankruptcy Law, the contested decision to exclude from the agenda the first item on the agenda of the meeting - “Approval of the procedure for the sale of property” - was adopted by a majority of votes (69.78%).

Since the contested decision by the meeting of creditors was made within its competence (clause 2 of Article 12 of the Bankruptcy Law) and by a majority vote of the total number of votes of bankruptcy creditors whose claims are included in the register of creditors' claims (clause 2 of Article 15 of the Bankruptcy Law), there are grounds to consider it invalid is not available.

In addition, at the meeting of creditors of the business company “O”, held on October 16, 2015 (Minutes No. 02), the bankruptcy trustee’s proposals for the sale of the debtor’s property were approved.

By a court ruling dated January 15, 2016, the business company “KP” was denied recognition of the said decision of the creditors’ meeting as invalid.

As circumstances in connection with which changes are required to the approved Procedure for the sale of the debtor's property, the business company "KP" indicated that the debtor's property arose as a result of its economic activities (construction), therefore a special procedure for sale is subject to application to the property (clause 5 of the article 111, paragraph 6 of Article 139 of the Bankruptcy Law). In addition, the creditor in the said letter expressed his intention to take part of the property as compensation.

Meanwhile, these arguments were assessed by the court when issuing a ruling dated January 15, 2016, by which the business company “KP” was refused to invalidate the decision of the meeting of creditors dated October 16, 2015 on approval of the Regulations on the procedure for the sale of the debtor’s property, and therefore they were revalued are not subject to

In addition, the court found that the applicant proposed for approval by the meeting of creditors the Procedure not for the sale of the debtor’s property, but for the repayment of creditors’ claims at the expense of the property through compensation, which directly contradicts Articles 110, 111, 139 of the Bankruptcy Law.

5. The decision to cancel the auction in the form of an open auction for the sale of property and to re-evaluate the property included in the bankruptcy estate of the debtor and put up for auction shall be declared invalid as taken in excess of the competence of the meeting of creditors and violating the rights and legitimate interests of the persons participating in a bankruptcy case, because prolonged failure to sell the debtor's property, including in connection with the re-valuation of the debtor's property, significantly violates the rights of the debtor's creditors, entails an increase in current costs for the bankruptcy procedure and, accordingly, reduces the possibility for creditors of the most complete satisfaction of their claims included in register of claims of the debtor's creditors (based on case materials No. A37-205/2015 (3)).

The tax authority applied to the arbitration court to invalidate the decisions of the meeting of creditors of the business company dated January 19, 2016 on issues No. 3, 4.

Believing that the decisions taken at the meeting of creditors on January 19, 2016 on issues No. 3, 4 of the agenda of the meeting are not based on the norms of the law, since no justification was provided for the contradictions of the approved Procedure for the sale and valuation of property with the current legislation, the applicant indicated that the valuation of disputed objects of unfinished construction carried out by the appraisal organization has not been disputed to date, no other procedure for the sale of property has been presented to the meeting of creditors, and therefore there is reason to believe that bankruptcy creditors are abusing procedural law, their actions will ultimately lead to an unreasonable delay in the procedure, an increase in the costs of bankruptcy proceedings, which contradicts the goals of bankruptcy proceedings and violates the rights and legitimate interests of creditors.

By ruling dated March 2, 2016, the tax authority’s application was satisfied. In this case, the court proceeded from the following.

On October 16, 2015, the bankruptcy trustee of the debtor initiated a meeting of the debtor’s creditors, the agenda of which included issue No. 3 “On approval of the initial cost and the Regulations on the procedure for the sale of the debtor’s property.”

The bankruptcy trustee presented to the meeting of creditors Proposals on the procedure, cost and conditions for the sale of two unfinished construction projects, and also presented Report No. 307 of the appraisal organization dated 10/12/2015 on the market value of the objects to be sold.

In accordance with the Proposals of the bankruptcy trustee, presented to the meeting of creditors on October 16, 2015, the sale of the debtor’s property is carried out through bidding in the form of an open auction on the electronic trading platform of JSC "SA" in the following sequence: holding the first bidding, holding repeated bidding with a reduction in the starting price by 10%, carrying out the sale of property through a public offering. In this case, the initial value of the debtor’s property is determined in accordance with the market value determined by an independent appraiser; the organizer of the auction is the bankruptcy trustee.

The meeting of the debtor's creditors on October 16, 2015 approved the bankruptcy trustee's proposals on the procedure, terms and conditions for the sale of the debtor's property.

The first auction for the sale of the debtor's property was declared invalid due to the lack of applications. Repeated auctions are scheduled for 02/15/2016.

At the meeting of creditors on January 19, 2016, bankruptcy creditors (KP LLC - 15.76% and KK LLC - 47.86%) unanimously made a decision on two additional issues included in the agenda of the meeting:

1. Cancel the bidding in the form of an open auction for the sale of property owned by the debtor by right of ownership, scheduled for 02/15/2016 (assign the issue serial number “3”).

2. Conduct a re-evaluation of the debtor’s property, which is included in the debtor’s bankruptcy estate and put up for auction scheduled for 02/15/2016. (assign the serial number “4” to the question).

The bankruptcy trustee objected to the adoption of these decisions, since these actions are inappropriate and entail a delay in the bankruptcy procedure and an increase in current costs.

The authorized body did not participate in the meeting of creditors on January 19, 2016 and did not vote on the agenda of the meeting.

The court found that, by virtue of the provisions of paragraph 4 of Article 15 of the Bankruptcy Law, decisions on issues No. 3 and No. 4 of the agenda of the meeting of creditors dated January 19, 2016 were adopted in violation of the limits of the competence of the meeting of creditors, and also violate the rights and legitimate interests of persons participating in bankruptcy case, on the following grounds.

The competence of the meeting of creditors is limited to the range of issues on which it has the right to make decisions. The limits of the competence of the meeting of creditors are established by the provisions of Articles 12 and 15 of the Bankruptcy Law.

By virtue of paragraph 2 of Article 12 of the Bankruptcy Law, the resolution of such issues as the cancellation of scheduled re-tenders of the debtor’s property and the re-valuation of the debtor’s property is not within the competence of the meeting of creditors either by Article 12 of the Bankruptcy Law or other provisions of the said Law. The provisions of the Bankruptcy Law do not give the meeting of creditors the right to make decisions on these issues.

Consequently, the contested decisions were made in excess of the limits of the competence of the meeting of creditors established by the Bankruptcy Law.

From the minutes of the creditors’ meeting dated January 19, 2016 No. 04, it follows that the meeting of the debtor’s creditors considers it impossible to carry out the procedure for selling the debtor’s property until the issue of re-valuing the debtor’s property is resolved.

In addition, while approving the bankruptcy trustee's proposal to sell the debtor's property, on October 16, 2015, the meeting of creditors did not exercise its right to increase the initial sale price of the debtor's property, determined in accordance with the appraiser's report.

Also, the bankruptcy creditors who made the contested decisions did not take advantage of the right provided for in paragraph 6 of Article 130 of the Bankruptcy Law to challenge the Valuation Report.

Thus, taking into account the results of the initial auction for the sale of the debtor’s property, which did not take place due to a lack of applications, re-evaluating the debtor’s property and canceling the appointed re-auction are inappropriate and violate the rights of the persons participating in the case.

6. In accordance with paragraph 2 of Article 139 of the Bankruptcy Law, if circumstances arise during bankruptcy proceedings in connection with which a change in the procedure, terms and (or) conditions for the sale of the debtor’s property is required, the bankruptcy trustee is obliged to present it to the meeting of creditors or to the committee of creditors for approval of relevant proposals regarding such changes. The approval of the Regulations on the procedure, conditions and terms for the sale of the debtor’s property, as well as the introduction of changes to it in cases provided for by law, falls within the competence of the meeting of creditors.

Carrying out and submitting a different assessment of the debtor's property by bankruptcy creditors does not contradict the Bankruptcy Law, because Carrying out a re-assessment at the initiative of the creditor in the event of bearing the costs of its implementation is expressly provided for in paragraph 1 of Article 139 of the Bankruptcy Law (based on the materials of case No. A37-205/2015 (4)).

The tax authority appealed to the arbitration court with an application to invalidate the decisions on issue No. 3 in terms of determining the initial price of property at the repeated auction and on issue No. 4 on establishing the initial price of property at the repeated auction, adopted at the meeting of creditors of the debtor-business company dated 21.04. 2016.

Believing that the decisions of the meeting of creditors dated April 21, 2016, adopted by a majority vote of bankruptcy creditors, on issues No. 3 and No. 4 actually exclude the possibility of selling the debtor’s property and entering the bankruptcy estate of funds, the applicant indicated that the contested decisions artificially create preconditions for placing the applicant in a bankruptcy case is obliged to pay court costs, which are subject to satisfaction primarily to creditors whose claims arose before the application for declaring the debtor bankrupt.

By ruling dated July 1, 2016, the tax authority’s application was rejected. In this case, the court proceeded from the following.

At the meeting of creditors on January 19, 2016, bankruptcy creditors (KP LLC - 15.76% and KK LLC - 47.86%) unanimously made a decision on two additional issues included in the agenda:

1. Cancel the bidding in the form of an open auction for the sale of property owned by the debtor by right of ownership, scheduled for 02/15/201 (assign the serial number “3” to the issue).

2. Conduct a re-evaluation of the debtor’s property, which is included in the debtor’s bankruptcy estate and put up for auction scheduled for 02/15/2016. The costs of paying for the services of the appraiser shall be assigned to LLC "KP" and LLC "KK" in proportion to the amounts of claims included in the register of creditors' claims (assign the serial number "4" to the issue).

By a court ruling dated March 2, 2016, which entered into legal force, decisions on issues No. 3 and No. 4 of the agenda of the meeting of the debtor’s creditors dated January 19, 2016 were declared invalid.

At the meeting of creditors on April 15 - 21, 2016, the authorized body and bankruptcy creditors (KP LLC - 15.76%, KK LLC - 47.86%, Federal Tax Service of Russia - 36.38%) by a majority vote adopted the following decisions on those included in agenda of the meeting additional issues:

1. Amend the bidding regulations approved by the meeting of creditors on October 16, 2015 as amended by KP LLC (issue No. 3),

2. Set the initial price of the property at the repeated auction in accordance with the proposals of KP LLC to amend the auction regulations approved by the meeting of creditors on October 16, 2015, namely: lot No. 1 - 504,900 rubles; Lot No. 2 - 2,610,000 rubles (issue No. 4).

A representative of the tax authority at the meeting voted against the adoption of these decisions.

The court found that the following changes were made to the Bidding Regulations (decision No. 3) at the proposal of KP LLC:

Section 1 of the Regulations is supplemented by paragraph 2, according to which: “The assessment of the market value of the property being sold was carried out by an independent appraiser, PK LLC, on the basis of agreement No. 2103/16-NS dated 03/21/2016.”

In paragraph 3 of section 1, the initial selling price (initial cost) of lots No. 1 is increased - 561,000 rubles and No. 2 - 2,900,000 rubles.

By decision No. 4, the meeting of creditors dated April 21, 2016 established the initial price of property at the repeated auction in accordance with the proposals of KP LLC, reflected in paragraph 2 of section 1 of the Regulations on the procedure for conducting auctions for the sale of the debtor’s property, lot No. 1 - 561,000 rubles, lot No. 2 - 2,900,000 rubles.

The court found that, by virtue of the provisions of paragraph 4 of Article 15 of the Bankruptcy Law, the contested decisions of the meeting of creditors of the debtor dated April 15-21, 2016 No. 3 and No. 4 were adopted by a majority vote, within the competence of the meeting of creditors and do not violate the rights and legitimate interests of persons participating in bankruptcy case and are aimed at achieving the goal of bankruptcy proceedings.

According to the provisions of paragraph 2 of Article 12 of the Bankruptcy Law, approval of the Regulations on the procedure, conditions and terms for the sale of the debtor’s property, as well as amendments to it in cases provided for by law, falls within the competence of the meeting of creditors.

By virtue of the provisions of paragraph 2 of Article 139 of the Bankruptcy Law, the court established the legality of amending the Regulations on the conditions for the sale of the debtor’s property in terms of increasing the initial sale price of the property, since on the date of the meeting, a six-month period had expired from the date of drawing up the Report on the assessment of the property of the debtor LLC and the bankruptcy creditors presented a Report on the assessment of the market value dated 03/25/2016 to the meeting.

In addition, the assessment of the debtor's property is advisory in nature; the meeting of creditors may establish a different initial sale price for the property. At the same time, carrying out a re-assessment at the initiative of the creditor in the event of bearing the costs of its implementation is directly provided for in paragraph 1 of Article 139 of the Bankruptcy Law, therefore, the conduct and submission by bankruptcy creditors of a different assessment of the debtor’s property does not contradict the Bankruptcy Law.

The court found the applicant's argument about the absence of legal grounds for increasing the initial sale price to be unconvincing, since this would lead to the maximum formation of the bankruptcy estate.

By virtue of Article 2 of the Bankruptcy Law, the purpose of bankruptcy proceedings is to proportionately satisfy the claims of creditors included in the register.

The sale of the debtor's property in bankruptcy proceedings is subject to this purpose, while creditors, in accordance with Articles 138, 139 of the Bankruptcy Law, have the right to determine the procedure, terms and conditions for the sale of the debtor's property.

7. The decision of the meeting of creditors on the need to extend the period of bankruptcy proceedings and on the approval of a new bankruptcy trustee does not entail an automatic extension of the period of the specified procedure and the appointment of a candidate for the bankruptcy trustee chosen by the meeting. These issues are resolved exclusively by the court (Articles 45, 124, 127 of the Bankruptcy Law). A positive decision on the specified issues included in the agenda of the meeting does not violate the rights of the applicant - participant of the debtor, and other persons.

Missing the deadline for sending the minutes to the arbitration court does not entail invalidation of the decisions of the creditors' meeting (based on the materials of case No. A37-811/2016).

Citizen K.V. - a participant in a business company declared insolvent (bankrupt) (hereinafter referred to as the applicant), applied to the arbitration court with an application to invalidate the decision of the debtor’s meeting of creditors dated May 22, 2017 and to schedule another meeting of creditors to consider the proposals of the participant in the business company.

The applicant believes that the meeting was held in violation, since the participant in the business company was not properly notified of the meeting of creditors in accordance with paragraph 1 of Article 13 of the Bankruptcy Law; At the meeting of creditors, the applicant’s proposals were not considered and the issue of removing the bankruptcy trustee was not put on the agenda of the meeting, while a new bankruptcy trustee was elected.

In addition, the person demanding the convening of the meeting, bankruptcy creditor A., did not have a third copy of the minutes of the meeting of creditors, and the deadline for sending the meeting materials to the arbitration court was missed.

By ruling dated July 10, 2016, the application of a participant in a business company was denied. In this case, the court proceeded from the following.

The court found that at the request of bankruptcy creditor A., who has 28.15% of the votes in the register, a meeting of the debtor’s creditors was held on May 22, 2017. The agenda of the meeting included two issues: 1) on extending the period of bankruptcy proceedings; 2) on approval of the candidacy of the bankruptcy trustee.

According to the minutes of the meeting of the debtor's creditors dated May 22, 2017, representatives of six bankruptcy creditors were registered at the meeting with a total amount of claims of 7,738,211.72 rubles, which amounted to 85.95% of the total amount of obligations of voting claims included in the register of creditors' claims. The meeting was recognized as competent, the results of registration were approved unanimously.

In accordance with paragraph 2 of the General Rules for the preparation, organization and holding by the arbitration manager of meetings of creditors and meetings of creditors’ committees, approved by Decree of the Government of the Russian Federation dated 02/06/2004 No. 56, the meeting was held without the participation of the bankruptcy trustee by the person who demanded its convocation - bankruptcy creditor A.

Clause 1 of Article 12 of the Bankruptcy Law grants the right to a representative of the founders (participants) of the debtor to participate in the meeting of creditors without the right to vote and speak on issues on the agenda of the meeting of creditors.

The court found that the notice of convening the meeting was published in the EFRSB on 05/05/2017. Representative K.V. the convening of the meeting of creditors became known from this publication; his participation in the meeting is confirmed by the minutes of the meeting dated May 22, 2017 No. 4.

The issues included in the agenda of the meeting correspond to the issues referred by the Bankruptcy Law to the competence of the meeting of creditors; the presence of bankruptcy creditors at it with 85.95% of the votes of the total amount of liabilities of voting claims made it possible to recognize it as competent (Article 12 of the Bankruptcy Law).

The court found that a positive decision on the issues included in the agenda of the meeting does not violate the rights of the applicant and other persons. The decision of the meeting of creditors on the need to extend the period of bankruptcy proceedings and on the approval of a new bankruptcy manager does not entail an automatic extension of the period of this procedure and the appointment of a candidate for a bankruptcy manager chosen by the meeting. These issues are resolved exclusively by the court (Articles 45, 124, 127 of the Bankruptcy Law).

Conclusion: Based on the results of the generalization of judicial practice related to the application of the provisions of the Bankruptcy Law governing the procedure for considering applications to challenge decisions of meetings of creditors, no controversial issues were identified.

An analysis of judicial acts allows us to conclude that the practice of considering applications of this category by the Arbitration Court of the Magadan Region complies with bankruptcy legislation. When considering applications to challenge decisions of creditors' meetings, the relevant provisions of the Bankruptcy Law are applied correctly, and the established judicial practice is uniform.

Judicial acts of the Arbitration Court of the Magadan Region based on the results of consideration of cases related to challenging decisions of creditors' meetings by higher courts in the period under review were not changed or canceled.

A systematic interpretation of the provisions of Article 15 of the Bankruptcy Law and an analysis of judicial acts issued based on the results of consideration of applications to challenge decisions of creditors’ meetings allow us to conclude that when an arbitration court considers these applications, it is necessary to pay special attention not only to the facts of non-compliance of decisions of creditors’ meetings with the law on bankruptcy - a violation of the limits of competence of the meeting of creditors established by the Bankruptcy Law, but also on the violation by these decisions of the rights and legitimate interests of persons participating in the bankruptcy case, persons participating in the arbitration process in the bankruptcy case, and third parties.

When considering applications to challenge decisions of meetings of creditors related to the emergence of circumstances during bankruptcy proceedings that require a change in the procedure, terms, conditions for the sale of property included in the bankruptcy estate, incl. in the event of a change in the initial sale price of the property, it is necessary to establish whether the bankruptcy creditors took measures to resolve disagreements with the bankruptcy trustee regarding the procedure for selling the debtor’s property.

Based on the application with the facts defining the violation, records are opened. An application to regard the minutes of a meeting as illegal is in most cases filed by creditors whose rights and interests have been violated. But not only creditors can refute the results of the meeting; in some cases, an application can be filed by the arbitration manager if he has made public the fact that the adopted results do not comply with the legislative provisions. This especially happens if disputes and conflicts arise during the process of financial insolvency of an enterprise. In what situations are decisions challenged? In order for the meeting procedure to be considered valid, important conditions must be met that do not contradict legislative norms.

Article 15. Procedure for making decisions at the meeting of creditors

Federal Law of December 30, 2008 N 296-FZ) (see text in the previous edition) on applying to the arbitration court with a petition to declare the debtor bankrupt and to open bankruptcy proceedings; on the selection of an arbitration manager or a self-regulatory organization, from whose members the arbitration court approves the arbitration manager; (as amended by Federal Law No. 296-FZ of December 30, 2008) (see the text in the previous edition) on filing a petition with the arbitration court to remove the arbitration manager; on the inclusion of additional issues in the agenda of the meeting of creditors and decisions taken on them; on concluding a settlement agreement in the manner and under the conditions established by paragraph 2 of Article 150 of this Federal Law. 3. Lost power. — Federal Law of December 30, 2008 N 296-FZ.

(see text in the previous edition) 4.

Invalidation of decisions of the meeting of creditors

Attention

address of the meeting;
overestimation of competence at the meeting;
no email notifications.

Despite these circumstances, the court in a number of cases may regard them as insignificant, which gives grounds to consider the decisions made as legitimate. Any errors or ignorance of legal norms may affect the outcome of the financial insolvency proceedings. Often, creditors, when dealing with professional managers, turn to experienced lawyers with a request to protect their interests in this matter and ensure the safety of their financial stability.

But every creditor should still be familiar with the action plan if his rights are violated. Rules for holding a meeting of creditors by an arbitration manager Who submits the application? The decision to declare illegal the making of decisions at a meeting of creditors is made by the arbitration court.

Appealing a decision of a meeting of creditors

AAS dated April 21, 2010 in case No. A46-9713/2009, Resolution 11 of the AAS dated March 30, 2010. in case No. A55-694/2009). 1.2. All other persons, except those expressly specified in clause 4 of Art. 15 Federal Law “On Bankruptcy”, in particular: - a person whose claims are being considered by an arbitration court and have not yet been included in the register (Resolution 14 of the AAS in case No. A05-7330/2007), - the founder (participant) of the debtor (FAS Resolution ZSO dated 01.09.2008 N F04-5287/2008), - a person engaged by an arbitration manager to exercise his powers (Resolution of the Federal Antimonopoly Service dated 11.04.2007 N F09-2609/07-S4), 1.3. The Federal Law “On Bankruptcy” does not provide the possibility of appealing: - the minutes of the meeting of creditors (Resolution 14 of the AAS in case No. A66-5749/2005), - the actions of the authorized person to convene and hold a meeting of creditors (Resolution of the Federal Antimonopoly Service of the Federal Antimonopoly Service of March 25, 2008.

Cancellation by the meeting of creditors of its own decision and Art. 140 fzob

An application to recognize the decision of a meeting of creditors as invalid may be filed by a person duly notified of the meeting of creditors that adopted such a decision within twenty days from the date of adoption of such a decision. An application to recognize the decision of a meeting of creditors as invalid may be filed by a person who was not properly notified of the meeting of creditors that adopted such a decision, within twenty days from the date when such person learned or should have learned about the decisions adopted by this meeting of creditors, but not later than within six months from the date of the decision made by the meeting of creditors. (as amended by Federal Law No. 296-FZ of December 30, 2008) (see text in the previous edition) 5.

An error occurred.

Info

ArtDeco" and "Dorf") were not made to the new creditor (the Kalinina company). The replacement in the material legal relationship itself did not give the new creditor the right to participate in the meeting and did not limit the right of the previous ones until the arbitration court issued a judicial act on their replacement in the register of claims of the debtor’s creditors with a successor to the previously included claims. Based on the principle of good faith (Article 1 of the Civil Code of the Russian Federation), before a procedural replacement is carried out, a person included in the register of creditors' claims is obliged to issue the acquirer of the claim a power of attorney to vote or vote at a general meeting in accordance with the instructions of the acquirer (clause 1 of Article 6 of the Civil Code of the Russian Federation , paragraph 2 of Article 57 of the Federal Law of December 26, 1995 N 208-FZ “On Joint Stock Companies”).

This is a process that differs from challenging the decision of a meeting of company shareholders or the usual challenging of minutes. As judicial practice shows, there are some nuances in this issue that do not allow a decision to be made on the illegality of the meeting and the decision made. First of all, it is necessary to clarify that the meeting of participants itself cannot be considered illegal, but only some decisions made during discussion and voting.

Several factors and circumstances also influence the assessment of invalidity.
Violations committed are grounds for declaring the decision of the meeting of creditors invalid (Resolution 2 of the AAS dated January 23, 2008 in case No. A29-3739/2006). 6. Competition of decisions adopted at meetings of creditors 6.1. Situation: at successive meetings of creditors, conflicting decisions can be made (competition of decisions). For example, at the first meeting, creditors decide to complete bankruptcy proceedings, and at a subsequent meeting - a decision to apply to the court with a request to extend bankruptcy proceedings. Questions arise: - whether the decision of the second meeting of creditors violates the rights of the creditor who voted for the completion of bankruptcy proceedings, - which of the decisions of the meetings of creditors has legal force.

Cancellation of the meeting of creditors grounds

Arbitration courts come to the conclusion that in the cases under consideration the rights of such a participant are not violated (Resolution 9 of the Arbitration Court of October 12, 2007 No. 09AP-13318/2007-GK). The inaction of the arbitration manager who did not notify the participant is only grounds for bringing him to administrative responsibility. The basis for liability is the failure of the manager to fulfill the duties established by bankruptcy legislation (Resolution of the Federal Antimonopoly Service dated 09.09.2008 in case No. A12-4730/08-C30).

Please note: In addition to the fact that the arbitration manager describes the violations committed, he must set out his demands: the decision of the meeting of creditors must be annulled or the issue must be reconsidered in compliance with the law. Alternatively, the applicant may request reimbursement of expenses for paying the state fee from the debtor's funds when filing a claim. In each specific situation, a detailed consideration of all the nuances of the complaint for their compliance with the law is necessary in order to invalidate the decision of the creditors’ meeting. The arbitration court has the right to refuse to declare the protocol void to the plaintiff due to the unfoundedness of the claims or insufficient evidence. Application to recognize a meeting of creditors as void In a bankruptcy case, participants in the process must periodically go to court to challenge the actions of the manager, creditors or borrower.

Article 15. Procedure for making decisions at the meeting of creditors

Bankruptcy Law, Art. 223 of the Arbitration Procedure Code of the Russian Federation, cases of insolvency and bankruptcy are considered by the court according to the rules of the Arbitration Procedure Code of the Russian Federation with the features provided for by the special Law on Bankruptcy. Article 113 of the Arbitration Procedure Code of the Russian Federation establishes the calculation of procedural deadlines in calendar days. This means that when considering bankruptcy cases, the deadlines provided for by the Arbitration Procedure Code of the Russian Federation are subject to application, unless a different procedure for calculating deadlines is established by the Bankruptcy Law.

The list of cases for which the Bankruptcy Law establishes the passage of time in calendar days is limited to the 5 cases indicated above (clause 9 of article 20.6, clause 6 of article 25.1, clause 1 of article 71, clause 2 of article 71, Clause 1 of Article 183.26 of the Law). There are no other such cases in the Bankruptcy Law, and, therefore, the general rule under the Arbitration Procedure Code of the Russian Federation is applied - Art. 113 of the Arbitration Procedure Code of the Russian Federation - the flow of daily periods in working days.

Invalidation of decisions of the meeting of creditors

Based on the application with the facts defining the violation, records are opened. An application to regard the minutes of a meeting as illegal is in most cases filed by creditors whose rights and interests have been violated. But not only creditors can refute the results of the meeting; in some cases, an application can be filed by the arbitration manager if he has made public the fact that the adopted results do not comply with the legislative provisions.
This especially happens if disputes and conflicts arise during the process of financial insolvency of an enterprise. In what situations are decisions challenged? In order for the meeting procedure to be considered valid, important conditions must be met that do not contradict legislative norms.

An error occurred.

Often at meetings decisions are made to sell the debtor's real estate at a reduced cost, which is not beneficial to creditors. Appeal period According to the law, you can appeal the decision of the meeting of creditors within 20 days after the results of the meeting of creditors were officially announced. In some cases, the time to file a complaint is extended to six months.
A similar situation may arise in cases where the applicant is not aware of the decision and needs to be informed. If the court recognizes the illegality of the meeting’s decision, then its verdict must immediately enter into force. The decision taken by the court can also be appealed within 14 days.

Restoring the deadline for appealing the meeting of creditors

If the decision made falls within the area of responsibility of the arbitration manager (even if he himself put it on the agenda) or the committee, then this will be a good reason for annulment. Judicial practice already contains precedents for canceling decisions of creditors' meetings. For example, at one of them a resolution was adopted on the acquisition of certain property to continue the debtor’s production activities at the stage of bankruptcy proceedings.

The court considered it unlawful, since such issues are not resolved by a vote of creditors, the bankruptcy estate was reduced and the rights of some creditors were infringed. At another meeting, a resolution was adopted on the donation of property from the bankruptcy estate without bidding. As a result of such charity, part of the funds fell outside the bankruptcy estate.

Appealing a decision of a meeting of creditors

From the meaning of these articles of the Civil Code of the Russian Federation it follows that the period in days is calculated in calendar days. The fact that the 20-day period for appealing the decision of the meeting of creditors is a shortened statute of limitations and contains only calendar days calculated in accordance with the Civil Code of the Russian Federation is confirmed by paragraph 1 of the Information Letter of the Presidium of the Supreme Arbitration Court of the Russian Federation No. 93 dated July 26, 2005. Uniformity practice in relation to the specified period, the Supreme Arbitration Court of the Russian Federation confirms the explanation contained in paragraph 8 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation No. 60 dated July 23, 2009, indicating that the twenty-day period, which is a shortened limitation period, can be restored by the court within the mentioned six-month period by the rules of Article 205 of the Civil Code of the Russian Federation (hereinafter referred to as the Civil Code of the Russian Federation), including if the application is submitted by a legal entity.

address of the meeting;
overestimation of competence at the meeting;
no email notifications.

Challenging the decision of the meeting of creditors

name of the court;
name of the debtor;
Full name of the bankruptcy trustee;
details of the bankruptcy case (number/date of initiation);
Full name of the applicant;
applicant's contact details: email, telephone;
list of bankruptcy creditors and their addresses;
when and where the meeting took place;
details of the protocol drawn up based on its results;
what decisions have been made and which of them need to be reversed;
what specific rights of the applicant were violated;
grounds: failure to notify, going beyond the limits of competence, etc.
evidence of the stated circumstances;
date of filing and signature.

The application must be accompanied by a copy of the passport, a certificate of registration of the applicant as an individual entrepreneur or a legal entity, an extract from the Unified State Register of Individual Entrepreneurs or the Unified State Register of Legal Entities, a copy of the protocol, and a notice of conduct (if any).

Time limit for appealing the decision of the meeting of creditors

Attention

First of all, it is necessary to draw up and correctly execute a statement of claim in order for the court to accept the case of the invalidity of the meeting of creditors for consideration. The claim is similar to statements of this kind in format, but certain requirements are imposed on the content:

Cap: the official name of the arbitration court to which the claim is addressed. Contact details of the applicant, lenders and debtor: Full name

managers, if it is a legal entity, their addresses, contact numbers.

Title of the document: “Application to invalidate the resolution of the meeting of creditors.”

Contents of the claim.

Info

An application for the invalidity of accepted verdicts can only be filed within the established time limits. This is 20 days from the date of official adoption of such a decision for persons who were duly notified of its implementation. If there are valid reasons, this time frame can be extended to six months.

If the applicant was not notified by the manager, then the period for appeal can be up to six months. The six-month period is already a pretrial period and cannot be restored. When the court has already adopted a resolution declaring the voting results illegal, it must immediately enter into force.

How to appeal a court decision on bankruptcy Bankruptcy Law, Art. 223 of the Arbitration Procedure Code of the Russian Federation, cases of insolvency and bankruptcy are considered by the court according to the rules of the Arbitration Procedure Code of the Russian Federation with the features provided for by the special Law on Bankruptcy. Article 113 of the Arbitration Procedure Code of the Russian Federation establishes the calculation of procedural deadlines in calendar days. This means that when considering bankruptcy cases, the deadlines provided for by the Arbitration Procedure Code of the Russian Federation are subject to application, unless a different procedure for calculating deadlines is established by the Bankruptcy Law. The list of cases for which the Bankruptcy Law establishes the passage of time in calendar days is limited to the 5 cases indicated above (clause 9 of article 20.6, clause 6 of article 25.1, clause 1 of article 71, clause 2 of article 71, Clause 1 of Article 183.26 of the Law). There are no other such cases in the Bankruptcy Law, and, therefore, the general rule under the Arbitration Procedure Code of the Russian Federation is applied - Art. 113 of the Arbitration Procedure Code of the Russian Federation - the flow of daily periods in working days.

4.3. Inadequate notification of a meeting of a participant in a bankruptcy case who has the right to vote at a meeting of creditors may be grounds for canceling the decision of the meeting of creditors. Arbitration practice on this issue is not uniform.

Article 15. Procedure for making decisions at the meeting of creditors

Options for the development of events:

Reconvening a meeting of creditors to make a resolution. It will be valid if all representatives included in the meeting are present.
Creditors have the opportunity to challenge the court's verdict on the invalidity of the minutes of their meeting in a higher authority.

The actions of the arbitration court, the resolution of the meeting of creditors, the court ruling declaring it invalid and other information about the progress of the process are published in the EFRSB.

Info

Attention The latest edition of Federal Law-127 of 2002 corrected this legislative gap.

The meeting of creditors does not have the right to make decisions on issues within the competence of the arbitration manager, even if such issues are included in the agenda of the meeting by the manager himself (Resolution 17 of the AAC (Resolution 3 of the AAC dated April 3, 2009 N A33-7977/2008k2-03AP-957/ 2009). The arbitration court does not have the right to make a decision on an issue referred by the Federal Law “On Bankruptcy” to the competence of the meeting of creditors or the arbitration manager (Resolution 1 of the Arbitration Court of October 30, 2009 in case No. A79-759/2009). List of issues that constitute the exclusive competence of the meeting creditors, is contained in clause 2 of Article 12 of the Federal Law “On Bankruptcy”. The resolution of these issues cannot be transferred to the creditors’ committee (Resolution 7 of the AAS dated 05.11.2008 N 07AP-3106/08(3).

Invalidation of decisions of the meeting of creditors

However, the list of issues that the meeting of creditors may consider is not exhaustive.
Federal Law of December 30, 2008 N 296-FZ) (see text in the previous edition) on applying to the arbitration court with a petition to declare the debtor bankrupt and to open bankruptcy proceedings; on the selection of an arbitration manager or a self-regulatory organization, from whose members the arbitration court approves the arbitration manager; (as amended by Federal Law No. 296-FZ of December 30, 2008) (see the text in the previous edition) on filing a petition with the arbitration court to remove the arbitration manager; on the inclusion of additional issues in the agenda of the meeting of creditors and decisions taken on them; on concluding a settlement agreement in the manner and under the conditions established by paragraph 2 of Article 150 of this Federal Law. 3. Lost power. — Federal Law of December 30, 2008 N 296-FZ.

(see text in the previous edition) 4.

Appealing a decision of a meeting of creditors
Invalidation of decisions of the meeting of creditors
Challenging the decision of the meeting of creditors
Is it possible to challenge a decision of a meeting of creditors?

Grounds and procedure for challenging the decision of the meeting of creditors

Here we are talking, for example, about the fact that not all members of the meeting were informed about the date of its holding, therefore there was no quorum, the decision was made in the presence of an insufficient number of participants. When proving the existence of this basis in court, the plaintiff must provide evidence that it had a significant impact on the final conclusions of the meeting.

Appeal against a meeting of creditors

In case of violation of the interests and rights of entities directly involved in the paperwork, entities participating in the arbitration process, as well as third parties.
The decision at the meeting does not correspond to the issue on the agenda, that is, it was made spontaneously.
In case of violation of the competence of the meeting of creditors, approved by Federal Law No. 127.

Those subjects who do not agree with the court ruling recognizing the invalidity of the decisions taken at the meeting have the right to challenge it by appealing to the court of appeal. This is stated in Articles 15 and 61 of Federal Law No. 127. Recognizing decisions of a meeting of creditors as invalid Features of the procedure If you want to challenge the results of a meeting of creditors, you should pay attention to some features of this procedure.

Challenging decisions of creditors' meetings

Features of the procedure If you want to challenge the results of a collection of creditors, you should pay attention to some features of this procedure. Thus, you cannot appeal the meeting of creditors itself, but only the decisions made. It is not allowed to file complaints against the protocol based on the results as a whole.
An application for the invalidity of accepted verdicts can only be filed within the established time limits. This is 20 days from the date of official adoption of such a decision for persons who were duly notified of its implementation. If there are valid reasons, this time frame can be extended to six months.

Attention

Procedure for appealing a decision of a meeting of creditors

An obligatory stage of the procedure is the creation of a register of creditors and holding a meeting. It is during the discussion that the main problems are solved and appropriate solutions are found. Challenging the minutes of a meeting of creditors is a specific legal matter, which is often entrusted to the relevant companies. This is a process that differs from challenging the decision of a meeting of company shareholders or the usual challenging of minutes. As judicial practice shows, there are some nuances in this issue that do not allow a decision to be made on the illegality of the meeting and the decision made. First of all, it is necessary to clarify that the meeting of participants itself cannot be considered illegal, but only some decisions made during discussion and voting.

Several factors and circumstances also influence the assessment of invalidity.
Bankruptcy Law, art. 223 of the Arbitration Procedure Code of the Russian Federation, cases of insolvency and bankruptcy are considered by the court according to the rules of the Arbitration Procedure Code of the Russian Federation with the features provided for by the special Law on Bankruptcy. Article 113 of the Arbitration Procedure Code of the Russian Federation establishes the calculation of procedural deadlines in calendar days. This means that when considering bankruptcy cases, the deadlines provided for by the Arbitration Procedure Code of the Russian Federation are subject to application, unless a different procedure for calculating deadlines is established by the Bankruptcy Law.
The list of cases for which the Bankruptcy Law establishes the passage of time in calendar days is limited to the 5 cases indicated above (clause 9 of article 20.6, clause 6 of article 25.1, clause 1 of article 71, clause 2 of article 71, Clause 1 of Article 183.26 of the Law). There are no other such cases in the Bankruptcy Law, and, therefore, the general rule under the Arbitration Procedure Code of the Russian Federation is applied - Art. 113 of the Arbitration Procedure Code of the Russian Federation - the flow of daily periods in working days.

1. General conditions for invalidating a decision of a meeting of creditors

1.1. A decision of a meeting of creditors may be declared invalid if it:
1.1.1. violates rights and legitimate interests
- persons participating in a bankruptcy case,
- persons participating in the arbitration process in a bankruptcy case,
- third parties involved in bankruptcy proceedings or
1.1.2. adopted in violation of the limits of competence of the meeting of creditors established by the Federal Law of October 26, 2002. No. 127-FZ “On Insolvency (Bankruptcy)” as amended by Federal Law No. 374-FZ dated December 27, 2009 (hereinafter referred to as the Federal Law “On Bankruptcy”).

The Federal Law “On Bankruptcy” does not directly provide for the possibility of invalidating a decision of a meeting of creditors by an arbitration court on its own initiative (Article 15 of the Federal Law “On Bankruptcy”, Resolution of the Federal Antimonopoly Service of Moscow dated November 24, 2004 N KG-A41/10842-04).
However, current arbitration practice does not exclude this (Resolution 8 of the AAC dated April 21, 2010 in case No. A46-9713/2009, Resolution 11 of the AAC dated March 30, 2010 in case No. A55-694/2009).

1.2. All other persons, except those expressly specified in clause 4 of Art. 15 Federal Law “On Bankruptcy”, in particular:
- a person whose claims are being considered by the arbitration court and have not yet been included in the register (Regulation 14 of the AAC in case No. A05-7330/2007),
- founder (participant) of the debtor (Resolution of the Federal Antimonopoly Service ZSO dated 01.09.2008 N F04-5287/2008),
- a person engaged by the arbitration manager to exercise his powers (Resolution of the Federal Antimonopoly Service of Ukraine dated April 11, 2007 N F09-2609/07-C4),

1.3.The Federal Law “On Bankruptcy” does not provide for the possibility of appealing:
- minutes of the meeting of creditors (Regulation 14 of the AAS in case No. A66-5749/2005),
- actions of an authorized person to convene and hold a meeting of creditors (Resolution of the Federal Antimonopoly Service of March 25, 2008 No. F03-A73/08-1/541),
- meetings of creditors (and not decisions of the meeting of creditors) (Definition of the AS RO in case No. A53-11016/2005-C2-36).

1.4. An application to recognize the decision of a meeting of creditors as invalid can be filed by a person notified of the meeting of creditors within 20 days from the date of such decision (clause 4 of article 15 of the Federal Law “On Bankruptcy”, Resolution 14 of the AAS in case No. A05- 10222/2006-21) .
If a person was not notified of the holding of a meeting of creditors, he may submit a corresponding application within 20 days from the moment when he learned or should have learned about the decisions taken by this meeting of creditors, but no later than 6 months from the date the decision was made by the meeting of creditors.
The specified six-month period for appealing the decision of the meeting of creditors is preemptive and cannot be restored.
The specified twenty-day period can be restored by the court if there are good reasons within a six-month period (Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated July 23, 2009 N 60).

1.5. The decision of the court of 1st instance on the dispute over declaring illegal the decision of the meeting of creditors is subject to immediate execution.
Such a decision may be appealed within 14 days from the date of adoption.
Based on the results of consideration of the complaint, the appellate court makes a decision, which is final and is not subject to further appeal to the cassation and supervisory authorities (clause 3 of Article 61 of the Federal Law “On Bankruptcy”).

2. Appeal against a decision of a meeting of creditors that violates the rights of the applicant

Violation of legal requirements when convening and holding a meeting of creditors is not a separate basis for invalidating the decision of the meeting.

A participant challenging the decision of the meeting must prove that his rights were violated as a result of violations of the law (Resolution 9 of the AAS dated October 12, 2007 No. 09AP-13318/2007-GK).

The following decisions at a meeting of creditors are not considered a violation of the rights and legitimate interests of persons participating in a bankruptcy case:

2.2. on organizational issues, in particular,
- termination of powers of the creditors committee,
- establishing the frequency of reporting and obtaining information,
- re-election of a representative of the meeting of creditors (Resolution 18 of the AAS dated February 27, 2009 N 18AP-820/2009)

3. Invalidation of a decision of a meeting of creditors made in violation of its competence

3.1.The Federal Law “On Bankruptcy” divides the powers and, accordingly, the responsibilities of the persons participating in the bankruptcy case.

The arbitration court, meeting of creditors, arbitration manager and other bodies and persons within the framework of a bankruptcy case do not have the right to interfere with the competence of others. The meeting of creditors does not have the right to make decisions on issues within the competence of the arbitration manager, even if such issues are included in the agenda of the meeting by the manager himself (Resolution 17 of the AAC (Resolution 3 of the AAC dated April 3, 2009 N A33-7977/2008k2-03AP-957/ 2009).

The arbitration court does not have the right to make a decision on an issue referred by the Federal Law “On Bankruptcy” to the competence of a meeting of creditors or an arbitration manager (Resolution 1 of the Arbitration Court of October 30, 2009 in case No. A79-759/2009).
The list of issues that constitute the exclusive competence of the meeting of creditors is contained in paragraph 2 of Art. 12 Federal Law “On Bankruptcy”.

The resolution of these issues cannot be transferred to the creditors’ committee (Resolution 7 of the AAS dated 05.11.2008 N 07AP-3106/08(3).

However, the list of issues that the meeting of creditors may consider is not exhaustive.

The meeting of creditors can consider any issue within the framework of a bankruptcy case, if its decision is not attributed by the Federal Law “On Bankruptcy” to the competence of other persons (Resolution 3 of the AAS dated April 3, 2009 N A33-7977/2008k2-03AP-957/2009).

4. Consequences of improper notification of a meeting of creditors

4.1. Inadequate notification of individual creditors about a meeting is not in itself a basis for declaring the decision of such a meeting invalid (Clause 4, Article 15 of the Federal Law “On Bankruptcy”).

The unnotified creditor must prove that his rights are thereby violated (Resolution 18 AAS dated February 27, 2009 N 18AP-820/2009).

4.2. Inadequate notification of the meeting to a participant in the bankruptcy case who does not have the right to vote at the meeting of creditors is not a basis for invalidating the decision of the meeting of creditors.

The inaction of the arbitration manager who did not notify the participant is only grounds for bringing him to administrative responsibility. The basis for liability is the failure of the manager to fulfill the duties established by bankruptcy legislation (Resolution of the Federal Antimonopoly Service dated 09.09.2008 in case No. A12-4730/08-C30).

Arbitration practice on this issue is not uniform. Previously, arbitration courts granted the claim of an unknown creditor if he:
- at the time of the meeting had an insignificant number of votes and
- taking into account the circumstances of the case, could not influence the results of the meeting
(Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated September 27, 2005 N 7496/05 in case No. K/E-8/03).
Currently, the courts recognize the fact of failure to notify the creditor as an unconditional violation of his rights, regardless of the creditor’s ability to influence the results of the meeting (Resolution 5 of the AAC dated May 21, 2009 No. 05AP-1067/2009, Resolution 10 of the AAC dated December 28, 2009 in case No. A41 -K2-5485/02).

5. Impossibility of applying by analogy the norms of corporate law to bankruptcy legal relations

The procedure for convening and holding meetings of creditors is provided for:
- Federal Law “On Bankruptcy” and
- Decree of the Government of the Russian Federation No. 56 of 02/06/2004 “On the general rules for preparing, organizing and holding meetings of creditors and meetings of creditors’ committees by the arbitration manager” (hereinafter referred to as the “procedure for holding meetings”).

Question: is it possible to apply the norms of the Federal Law “On Joint-Stock Companies” to the procedure for convening, holding and documenting the results of a meeting of creditors by analogy?
Answer: no!
This conclusion is confirmed by consistent and consistent arbitration practice.
In particular, the Federal Law “On Bankruptcy” and the procedure for holding meetings do not provide for the possibility of:
- holding absentee voting at creditors’ meetings (Resolution 17 AAS dated December 17, 2009 No. 17AP-11717/2009-GK),
- application of a simplified procedure for holding a meeting with the participation of a single creditor (with the absence of a registration log, minutes) (Resolution 13 of the AAC dated December 8, 2008 in case No. A56-22537/2008, Resolution 10 of the AAC dated December 28, 2009 in case No. A41 -K2-5485/02).
- voting by show of hands (instead of using ballot papers) (Resolution 11 of the AAC dated March 30, 2010 in case No. A55-694/2009). Violations committed are grounds for declaring the decision of the meeting of creditors invalid (Resolution 2 of the AAS dated January 23, 2008 in case No. A29-3739/2006).

6.Competition of decisions made at meetings of creditors

6.1. Situation: at consecutive meetings of creditors, conflicting decisions may be made (competition of decisions).
For example, at the first meeting, creditors make a decision to complete bankruptcy proceedings, and at a subsequent meeting, a decision to apply to the court with a petition to extend bankruptcy proceedings.

Questions arise:
- whether the decision of the second meeting of creditors violates the rights of the creditor who voted for the completion of bankruptcy proceedings,
- which of the decisions of creditors' meetings has legal force.

6.2.The Federal Law “On Bankruptcy” does not provide a direct answer to these questions.
From the general principles of law it follows that a later law cancels an earlier one (Lex posterior derogat priori).

It follows from the general principles of corporate law that the body that made the decision has the right to subsequently change or cancel it (with reservations, see paragraph 5 of this bulletin).

Judicial practice on the issue of competition of decisions of creditors' meetings is contradictory.

Example 1
The arbitration court indicated that: “in the event of competition between initial decisions and decisions made on the same issues later, the decisions adopted by the first meeting of creditors, that is, those adopted earlier, will be valid” (Resolution 8 of the AAC dated April 21, 2010 in case No. A46-9713 /2009).
In doing so, the court proceeded from the following:
- a decision of a meeting of creditors can be declared invalid only in court,
- the cancellation of such a decision by a repeated meeting of creditors has no legal force.

Example 2
The arbitration court concluded that the contrary decision of the repeated meeting of creditors does not in itself violate the applicant’s rights.
Such a decision can be appealed according to the general rules of the Federal Law “On Bankruptcy” (Resolution 17 of the AAS dated April 26, 2010 in case No. A71-17718/2005).

Editor's Choice

The main layers in the solar atmosphere What is the visible layer of the solar atmosphere called?

Structure of the Sun 1 – core, 2 – zone of radiative equilibrium, 3 – convective zone, 4 – photosphere, 5 – chromosphere, 6 – corona, 7 – spots,...

Sanitary treatment of the patient 1 sanitary treatment of the patient

1. Every infectious diseases hospital or infectious diseases department, or multidisciplinary hospitals must have an emergency department where it is necessary...

Modern dictionary of the Russian language stress pronunciation orthoepic

ORTHOEPIC DICTIONARIES (see orthoepy) are dictionaries in which the vocabulary of the modern Russian literary language is presented with...

The magic of numbers. Why do you dream about the Face? Dream Interpretation dirty face in the mirror

A mirror is a mysterious object that has always inspired a certain fear in people. There are many books, fairy tales and stories in which people...

Personal eastern horoscope

1980 is the year of which animal? This question is especially of concern to those who were born in the indicated year and are passionate about horoscopes. Due...

The great mantra of Shiva - Om Namah Shivaya Shivaya namah nama om meaning

Most of you have already heard about the great Mahamantra Mahamrityunjaya Mantra. It is widely known and widespread. No less famous is...

Dream Interpretation: why you dream of walking through a cemetery, interpretation of the meaning of sleep for men and women

Why do you dream if you are not lucky enough to walk through a cemetery? The dream book is sure: you are afraid of death, or you crave rest and peace. Try...

Lego Secret Figure Minifigures Series 17

In May 2017, LEGO introduces its new series of minifigures, Season 17 (LEGO Minifigures Season 17). The new series was shown for the first time...

Real benefits and mythical harm of dates for the human body

Hello, friends! I remember that as a child we really loved to eat delicious sweet dates. But they were not in our diet so often and did not become...

New

Popular