October 18 Main results of the day

The Ninth Arbitration Court of Appeal recognized the arguments of the lawyers of the Bureau of Lawyers “De jure” as justified and overturned the unlawful decision of the court of first instance. As part of this bankruptcy dispute, the only creditor applied to the arbitration court with an application to bring the Principal to subsidiary liability for the debtor’s obligations. Realizing the opportunity to influence the creditor’s composition and believing that the creditor’s claim was unfounded, the Bureau’s lawyers filed an application to exclude the claim from the register. However, the court of first instance left this application without consideration due to the fact that the person against whom the application for subsidiary liability was filed did not have the right to apply to the court with such an application. In the appeal, we pointed out that the court of first instance violated the norms of law due to the restriction of the Principal’s right to judicial protection of his rights in terms of the ability to prove the unfoundedness of the requirement included in the register. As a result, the appellate court overturned the ruling of the first instance court to leave the Principal’s application without consideration. The interests of the Principal were represented by Daria Ivanova, senior lawyer of the bankruptcy dispute resolution practice of the Bureau of Lawyers “De jure”.

The Ninth Arbitration Court of Appeal accepted the Plaintiff’s refusal of the application to invalidate a number of payments of the Principal. Earlier, the Plaintiff, who is a company that repaid the claims of creditors of a bankrupt bank, lost to us in the arbitration court of the first instance.The Plaintiff disputed payments made by the Principal on accounts opened in the troubled bank within six months before the license was revoked. But lawyers from the Bureau of Lawyers “De jure” proved the solvency of the bank at the time of making the disputed payments and denied the Principal’s awareness of the deterioration of the financial indicators of the credit institution. As a result, the Bureau of Lawyers “De jure” managed to prevent negative property consequences for the Principal for a total amount of more than 12.1 million rubles. The interests of the Principal were represented by Roman Volkomorov, lawyer of the Tyumen branch of the Bureau of Lawyers “De jure”.

The Arbitration Court of the Moscow Region refused to include claims in the amount of 5 million rubles of a creditor competing with the Principal. The Bureau’s lawyers proved the affiliation between the debtor and the creditor, and also convinced the court that the applicant had missed the statute of limitations. As a result of preventing the establishment of unreasonable demands, the percentage of satisfaction of the Principal’s claims has been increased. His interests were represented by Ksenia Stikhina, senior lawyer of the Bureau of Lawyers “De jure”.

The Ninth Arbitration Court of Appeal overturned the decision of the lower court and refused to satisfy the opponent’s claims in full. We are talking about a case in which the opponent sought to recover from the Principal the cost of additional work performed. These demands of the opponent were satisfied by the court of first instance in full. However, in the court of appeal, it was possible to sow the seed of doubt about the correctness of the lower court’s decision. The Court of Appeal listened to the arguments of the Bureau of Lawyers “De jure” that these additional works are not subject to payment, since their cost has not been agreed upon and was not indicated in the estimate. In addition, there is no additional agreement for the performance of such works, and the opponent was obliged to inform the Principal about the discovery of works not taken into account in the technical documentation during construction, and in this regard about the need for additional work and an increase in the estimated cost of construction. However, the opponent could not provide such evidence. Thus, the Court of Appeal concluded that the recovery of 2.5 million rubles from the Principal does not comply with the law. His interests were represented by Irina Novikova, senior lawyer of the Bureau of Lawyers “De jure”.

The Arbitration Court of the Moscow District upheld the complaint of the Principal (who is the collateral creditor in the bankruptcy case) regarding disagreement with the decision of the bankruptcy trustee to impose on him the costs of paying income tax and rent while retaining the pledged property for himself, canceled the judicial acts of lower courts in this part and sent the separate dispute for new consideration. At the same time, the district court was guided by the latest clarifications set out by the Constitutional Court of the Russian Federation in Resolution No. 28-P dated May 31, 2023, according to which requirements for payment of corporate income tax upon the sale of property constituting the bankruptcy estate in a bankruptcy case must be satisfied as part of the third stage of creditors’ claims included in the register. At the same time, the circumstances of this isolated dispute differed from the cases, considered earlier taking into account the law enforcement practice that developed after the Constitutional Court of the Russian Federation adopted the above-mentioned Resolution. In this case, the pledged property was not sold at auction to third parties, but was retained by the pledge creditor. However, the District court agreed with the Bureau’s position that, in its civil nature and within the meaning of clause 4.1 of Article 138 of the Bankruptcy Law, the retention of the pledged property is a form of sale of the pledged property along with its sale from auction, and the agreement on the retention of the pledged property is an analogue of a purchase and sale contract. The interests of the Principal were represented by Viktor Pokormyak, lawyer of the Bureau of Lawyers “De jure”.