LexProf lawyers, defending the interests of the creditor in the bankruptcy of a regional airline, identified a debtor's transaction on the alienation of the airport complex in favor of an affiliated person.
In this case, to challenge this transaction on the basis of Art. 61.2, para. 2 of the Federal Law On Insolvency (Bankruptcy) (an unequal transaction) was not possible, since the quantum of the estate was confirmed by a report on the market valuation of the value, and the debtor received a full payment of this value either directly to the settlement account (most of the payments) or by transferring to third party accounts of debt repayment to them.
On this basis, LexProf lawyers determined the strategy for challenging this transaction on the basis of Art. 61.2, para. 2 of the Federal Law On Insolvency (Bankruptcy) (a suspicious transaction) and Art. 10 of the Civil Code of the Russian Federation, since the analysis of the statement on the debtor's settlement account revealed that almost all the money received by the debtor for the alienated estate was recovered to the settlement account of the affiliated person. In the payment reason, it was indicated «the payment for the supply of aviation fuel», which is quite logical taking into account the specifics of the debtor's activities.
However, the debtor, thus transferring an expensive asset (more than 200 million rubles) to his affiliated person, did not take into account that at that time he already had other creditors whose obligations were overdue. The debtor did not take into account the provisions of the law on the order of priority, the timing of the performance of contractual obligations, the need to verify the debt by the judicial acts entered into legal force.
The court listened to the arguments of LexProf lawyers and came to the conclusion that the parties to the questioned contract at the moment of its execution had no intention to create a positive economic result for the debtor by execution of the transaction. The counter performance received from the affiliated person in the form of the payment under the contract was not directed to the development of the economic activity of the debtor, restoration of its solvency, settlements with the existing creditors. On the contrary, these funds were almost completely transferred to the person affiliated with the debtor. The violation of the law is that the money received for the asset was turned over to recover the debtor's debt giving preference in meeting the claims of some counterparties over others, and the preference was more to satisfy the claims of the person affiliated with the debtor, which contained signs of abuse of the law.
The court reached a conclusion that as a result of the concerted actions of the debtor and its affiliated person, funds in the amount of the received performance under the questioned contract was actually withdrawn from the debtor's assets, and the direction of their withdrawal led to the loss of the possibility of the most complete and fair satisfaction of the claims of the debtor’s creditors.
An important conclusion of the court is that although the debtor actually received the entire amount of the value of the sold estate, the damage to creditors was still caused by the fact that they did not really receive their claims at the expense of this estate.
The court declared the transaction null and void on the basis of Art. 61.2, para. 2 of the Federal Law On Insolvency (Bankruptcy) (a suspicious transaction) and Art. 10 of the Civil Code of the Russian Federation.
In addition, the court applied the consequences of the invalidity of the transaction in the form of removing the encumbrance from the sold estate in the form of a pledge that arose immediately after its sale to the affiliated person on the basis of several mortgage contracts. At the same time, the provisions of Art. 354, para. 2 of the Civil Code of the Russian Federation as amended at the time of conclusion of each of the mortgage contracts, which provides that in cases where the estate being the subject of the pledge is withdrawn from the pledgor in accordance with the procedure established by law on the grounds that de facto the owner of this estate is another person (Article 301), the pledge against this estate is terminated. Article 42 of the Federal Law of 16.07.1998 No. 102-FZ On Mortgage (Real Estate Pledge) also includes a similar provision.
It should also be noted that most of the payments made by the affiliated person as payment under the questioned contract for the debtor in favor of third parties were also found invalid by the court on the basis of Art. 61.3 of the Federal Law On Insolvency (Bankruptcy), as transactions made with preference at the expense of the debtor's estate.
As a result of hard work of LexProf lawyers and a major reconciliation of the legal position a large asset was returned to the bankruptcy assets, and the concerted actions of the affiliated persons attempting to withdraw the debtor's estate by playing a typical transaction in the economic activity were disclosed and stopped.
A very cautionary tale for those who hope to act unfairly from fulfilling their obligations to creditors.