COMMENTARY BY VLADISLAV SHATROV IN THE PROBANKROTSTVO
The bankruptcy trustee filed a claim with the court to invalidate equipment lease agreements, apply the consequences of invalidity of transactions, and collect interest in the bankruptcy case of "UNR-17" LLC.
The courts of first and appellate instances considered the disputed relations to be real, did not see the purpose of causing harm to creditors and refused to satisfy the claim. The cassation court overturned the judicial acts of the lower courts and sent the dispute for a new trial to assess the arguments for compensatory financing (see the definition of the Supreme Court of the Russian Federation dated June 26, 2024 No. 302-ES23-30101 (1,2)).
According to Vladislav Shatrov, Senior Lawyer in the Bankruptcy Practice at Infralex, the cassation court made several conclusions of interest to practice:
- the correctness of the bankruptcy trustee's argument was confirmed: the transfer of property (fixed assets) by an affiliated person for lease to the debtor with a significant payment deferral (de facto for free use) can also be recognized as compensatory financing;
- the erroneous conclusion of the lower courts on placing the burden of proof of the affiliated parties' awareness of the transaction's purpose of causing harm to independent creditors on the applicant was corrected.
Vladislav explained, "... The fact that the debtor's manager is aware of the transaction for the purpose of causing harm to the property rights of creditors is not subject to investigation, since it is obvious based on the powers granted to the manager and is presumed by virtue of the direct indication of Part 2 of Article 61.2 of the Bankruptcy Law."
- a higher standard of proof is applied due to the affiliation of the parties to the transaction, i.e. there is no need to establish the fact of the existence of independent creditors' claims, confirmed by a court decision, directly on the date of payment - the very fact of the existence of creditors on the date of the transaction is sufficient, which follows from the sign of a property crisis).
The lawyer noticed, "The situation in the case under consideration is quite specific, since the disputed payments for the return of rent were made with a significant delay, including after the expiration of the limitation period (which indicates abuse by the parties to the transaction)."
However, Vladislav also clarified that the courts often refuse to satisfy applications to challenge payments in favor of even affiliated persons in the presence of reasonable return periods (within the schedule under the contract).