Press review for July 1-15, 2020

First series of free bankruptcy conferences

The Dolg.RF portal informs that today there is a unique opportunity to learn everything about debt recovery and subsidiary liability in the post-quarantine world. “Anyone can take part in a monthly intensive from July 6-27 for businessmen and top managers of enterprises,” – the publication notes. The organizers of the intensive were MCBA “Bureau of Lawyers “De jure”, which is included in the TOP-10 companies in the ligation market according to Pravo.ru and in bankruptcy according to the Kommersant Publishing House rating, the Rykov Group – one of the leaders in Russia in the field of disputes on subsidiary liability of persons controlling the debtor and the Dolg.RF portal.

The conference series will cover the following topics:

July 6 – Features of bankruptcy litigation after the pandemic, which it is better to know about in advance. Who will be affected by the bankruptcy moratorium? What are the subtleties of challenging transactions of moratorium debtors?

July 13 – Trends in individual bankruptcy that will change your view of bankruptcy. Why it became possible to sell a single home. What are the prospects for out-of-court bankruptcy?

July 20 – Challenging questionable transactions; which transactions are now at risk? Secrets of the proof of deals with the preference: features of vindication and restorative lawsuits.

July 27 – Subsidiary and criminal liability: what kind of leaders the prison awaits. In what cases is exemption from liability possible? How the beneficial owner is determined.

The first step is not always troublesome.

Dolg.RF informs that a series of online conferences for bankruptcy business in post-quarantine Russia started on July 6. The topic of the broadcast was “The impact of the pandemic on bankruptcy; realities and forecasts for business”. “Speakers and invited experts discussed the principles of interaction between debtors and creditors during a pandemic, the result of the introduction of a moratorium on bankruptcy, the consequences of bringing a large volume of company assets to the market,”- the newspaper notes.

In particular, Roman Volkomorov (senior lawyer in the bankruptcy practice of the Tyumen branch of MCBA “Bureau of Lawyers “De jure”) analyzed the moratorium on bankruptcy for persons in bankruptcy proceedings. According to him, debtors should use moratorium advantages when drawing up a plan for overcoming the crisis and if the debtor is objectively bankrupt, then it is worth thinking how to abandon the moratorium and allow creditors to initiate bankruptcy proceedings.

Vadim Makarichev (attorney, head of the bankruptcy practice of the Moscow branch of MCBA “Bureau of Lawyers “De jure”) predicted the likelihood that in the near future some of the companies caught in a crisis in order to cover urgent current liabilities will dump their assets urgently and at attractive prices. In this case, it is necessary to carefully “calculate” the possibility of a “reversal” of the transaction in the event of the subsequent bankruptcy of the company.

The moderator of the broadcast, Nikita Filippov (Head of MCBA “Bureau of Lawyers “De jure”, honorary lawyer of Russia, member of the working group on improving the Federal Law “On Insolvency (Bankruptcy) under the State Duma Committee) noted that an incorrect assessment of the situation could lead to the recognition of transactions as invalid, as well as bringing controlling debtors to subsidiary and criminal liability. It is within the framework of such an intensive process that it is possible to consider the problem of bankruptcy on the part of all participants, to develop a policy of interaction in the difficult conditions of a pandemic together.

A heated discussion around out-of-court bankruptcy of citizens

Dolg.RF also covers in detail the next conference on bankruptcy, organized by MCBA “Bureau of Lawyers “De jure” together with Rykov Group and the portal Dolg.RF.

The draft law on out-of-court bankruptcy of citizens was at the center of the discussion of the expert community. Nikolai Nikolaev, Chairman of the State Duma Committee on Natural Resources, Property and Land Relations, and the initiator of the bill was the special guest of the online conference. “We have simplified the procedure for filing an application for out-of-court bankruptcy in multifunctional centers (MFC) as much as possible. However, in case of difficulties, the specialists of the center will come to help citizens,”- the Deputy said.

Nikita Filippov, Head of MCBA “Bureau of Lawyers “De jure”, moderator of the online conference, is confident that due to the coronavirus pandemic and the economic problems provoked by it in the country, the number of bankrupt citizens will increase many times. And this is despite the fact that in 2019 the number of applications for insolvency from individuals reached almost 100 thousand. “Such a bill is certainly necessary to cope with the wave of bankruptcies that is coming to us. Even all 10,000 arbitration managers will not be able to cope with it. There are simply not enough specialists to conduct bankruptcy cases for citizens,” – Nikita Filippov sums up.

Vadim Makarichev, lawyer of “De jure”, told about the features of the sale of the debtor’s only home. The lawyer believes that the Supreme Court (SC) of the Russian Federation should allow the sale of luxury real estate of debtors, even if they are their only housing, provided that the bankrupt will be moved to a more modest house / apartment.

Conflict within the company: what if the “bomb” explodes?

Portal Executive.ru addresses the topic of legal disputes between the heads of one company. In a comment for the publication, Nikita Filippov, Head of MCBA “Bureau of Lawyers “De jure”, noted that “information about conflicts related to the company rapidly spreads and negatively affects both the company’s image and its business ties.” According to the lawyer, any investor, creditor, shareholder tries to obtain maximum information about the counterparty before the transaction. “Imagine that he finds out about a conflict between the owners. What will he do? I think that in most cases, information about an internal judicial conflict will hinder transactions. After all, legal proceedings in the company’s management carry significant risks: challenging transactions and management decisions, freezing assets, including bankruptcy, subsidiary and criminal liability,” – Filippov shares his experience.

According to him, in the practice of “De jure” there are such cases and they end in different ways. “In one case, the dispute between the co-owners of a large shopping complex could not be settled peacefully. Events followed the most negative scenario, including the suspension of operating activities. Today, a bankruptcy case is underway. With a high probability, profitable real estate will be sold at a significant discount, and the co-owners will receive, in addition to losses, also bringing to subsidiary liability. There is another “conditionally positive” example. The conflict between the bank’s shareholders almost led to bankruptcy. The owners changed their minds in time and lowered the degree of tension, paid off their obligations to creditors and began a legitimate procedure for Bank liquidation. And, although, the disputes between them continue, the likelihood of being brought to subsidiary or criminal liability has been eliminated,” – the lawyer sums up.

Who gets what share?

“Komsomolskaya Pravda” explains the subtleties of selling a share in an apartment. Answering the question whether it is possible to prevent a neighbor from selling his share Nikita Filippov, Head of MCBA “Bureau of Lawyers “De jure”, noted that in fact the only way could be the right of pre-emptive purchase. “Of course, the neighbors can “put a spoke in wheel”. If the share being sold is insignificant, then there is a risk of refusal to move in and register in the residential premises at the place of residence, but there are no legal ways to prohibit the sale of a share from neighbors,” – the lawyer says.

When selling, you should take into account the debts on the utility payments. “First of all, it is necessary to determine their size at least at the time of the transaction and fix it in the contract,” – Filippov advises. – If there is no agreement between the owners on the procedure for paying for housing and communal services, then housing and communal services are usually distributed according to the size of the share of each owner. As a general rule, debt repayment for housing and communal services must be carried out by the seller of the share at the time of signing the deed of transfer. Once signed, all costs are borne by the buyer. If the seller is unable to pay off the debt, then it is quite acceptable to include the amount of this debt in the cost of the share itself. “

You can also donate your share. In this case, the preemptive right of redemption by other co-owners will not be applied. “Therefore, this method is sometimes used in order not to provide other co-owners with a preemptive right to purchase,” – Head of “De jure” says. However, he warns against masking the sale of the apartment in this way. “This is risky, because it is not legally stipulated anywhere that the buyer is obliged to pay the seller some money. In addition, the owners of other shares may try to challenge the donation transaction in court,”- Filippov says.

My home is my fortress?

Experts of MCBA “Bureau of Lawyers “De jure” answered readers’ questions at the request of the Domofond.ru portal.

Apartment of the author of the question was privatized before marriage. His wife received a socially rented apartment and privatized it during the marriage. Will his apartment be considered the only residence during the bankruptcy of the author of the question? And can the wife’s apartment get into the bankruptcy estate?

Taisiya Radchenko, lawyer of MCBA “Bureau of Lawyers “De jure”, recalls that, as a general rule, property acquired by spouses during marriage is joint property of the spouses. “However, if the property is received by one of the spouses under a gratuitous transaction (in this case – privatization), it is not common and belongs to this spouse by right of ownership. Thus, the wife’s privatized apartment is not jointly acquired property and will not be included in the bankruptcy estate of a bankrupt spouse,” – the lawyer believes.

But the question of whether the debtor’s apartment will be considered the only housing depends on his actual place of residence. “In accordance with the Housing Code, the owner’s family members include the spouse who lives with him in the dwelling. By law, he has the right to use the premises on an equal basis with its owner. If a citizen has such a right, then it is possible to foreclose on another apartment of the citizen. That is, if the debtor lives on his wife’s living space, then his apartment will not have immunity. The mere fact of registration in your apartment is not enough to recognize it as the only home,”- Radchenko sums up.

Why do we pay for heating in summer?

Ramzan Mezhidov, lawyer of MCBA “Bureau of Lawyers “De jure”, explains that the tariff for thermal energy is often quite complex and includes not only payment directly “for heat in the house”, but also for other costs. These include, in particular, the cost of energy, taxes, depreciation, payment of wages, payment for service of communications, their current repair and modernization. Plus, you need to pay for some of the energy that was spent on general household needs, i.e. heating staircases, elevator halls, etc. “The final price is divided into a calendar year, not a “heating season” consisting of nine months. Hence the need to pay for heating services during the summer months,” – Mezhidov explains.

The seller provided an extract from the house book about those registered for 2012. Should we believe such data in 2020?

Ramzan Mezhidov, lawyer of MCBA “Bureau of Lawyers “De jure”, reminds that an extract from the house book itself as a document is not mandatory for registration of rights from the point of view of the law. However, it contains information about persons registered in the house who may not have been mentioned in the contract of sale. “Therefore, if this circumstance becomes clear during the registration of the transaction during legal expertise, the registration of rights will be refused.

There persons who not only have the right to use residential real estate regardless of registration, but also retain an indefinite right to use it after its sale. If you do not specify them in the contract of sale, such a contract will be considered as not concluded, since, according to paragraph 1 of Article 558 of the Civil Code of the Russian Federation, the specified information is an essential condition of the contract of sale of residential real estate,” – the lawyer says. And he advises you to get an up-to-date extract from the house book.

The judicial system of the Russian Federation: everything an ordinary citizen needs to know

The portal “Banks today” publishes an author’s article by lawyer of “De jure ” Maria Popolitova explaining exactly how the system of legal proceedings in Russia is organized and how courts at different levels differ from each other.

“The court in Russia has a horizontal and vertical structure,”- Popolitova writes. – What do I mean?” Depending on who goes to court or defends himself – an individual or a legal entity – it is necessary at first to determine which court – arbitration or General jurisdiction – is responsible for a particular dispute. Arbitration courts mainly consider cases between entrepreneurs and legal entities, including administrative disputes, courts of general jurisdiction – cases related to disputes between individuals, between citizens and organizations, as well as administrative and criminal cases”.

Talking about the “vertical of justice”, the lawyer of “De Jure” reminds that the consideration of the dispute begins in the court of the first instance. “The appellate instance, considering the dispute, already has a fully formed case on its hands with all the thoughts laid down by the parties to the trial at the initial stage. Additional evidence is accepted by the court of second instance only in exceptional cases, if the party of the process justifies why it could not present the said evidence to the court of the first instance. Hence, we conclude that the most important and often predetermining the outcome of any case is the initial stage of legal proceedings,” – the author notes. After the ruling of the court of appeal, the decisions come into force immediately. If the losing party still decides to go to the end, then within two/three months from the date of entry of the decision into legal force (the period depends on whether it was an arbitration court or a court of General jurisdiction), he will be able to file a complaint to the special cassation courts.

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