The head of the bankrupt company and the AV will answer for inaction together
The Supreme Court of the Russian Federation (BC) explained that the director of a bankrupt enterprise and the arbitration manager (AU) are in jointly responsible for losses due to dislikes of receivables. The former leader demanded that the manager be held accountable, and the arbitration courts agreed with him. However, if the director and AU had the opportunity to present a writ of execution and the receipt, but both of them missed the deadline, then they must answer together, the Economic College of the Armed Forces decided. According to lawyers, bankrupt creditors win the most position from this position.
The history of the dispute, in which the Supreme Economic Court of the Armed Forces set in December 2021, when the Arbitration Court of the Moscow Region recognized Mashstroy LLC, approved the bankruptcy trustee of Viktor Altunin.
Claims to work AU arose the owner and former director of Mashstroy Valery Pozdnyakov. He accused the manager of inaction, namely, the failure to renovate measures to recover the already dried accounts with JSC PEMZ, which has expired for the debtor of the writ of execution for 193.4 million rubles. In addition, AU made errors when filing an appeal in the dispute about the inclusion of another 17.4 million rubles. Requirements to the register of PEMZ creditors, which led to the refusal of appeal to consider it. In this regard, Valery Pozdnyakov demanded to recover losses in the amount of 210.8 million rubles from AU. – the competitive mass of Mashstroy could theoretically be replenished for this amount.
2.26 billion rubles
As losses, it was recovered from the arbitration managers in 2024, according to EFRSB
The arbitration courts considered that the debtor had a sufficient number of assets to repay debts, and recovered the required amount from the AU in favor of the competitive mass as a reimbursement of losses from its inaction. However, the Eurosib SRO, in which Viktor Altunin consists, filed a complaint with the Armed Forces, insisting that the former director of Mashstroy himself could present the writ of execution to the debtor, since the debt was dried long before the bankruptcy of the enterprise. The case was referred to the economy of the Armed Forces (See “Kommersant” from February 18) who canceled all judicial acts.
Two did not recover – both are to blame
In his decision, the Armed Forces confirmed that the possibility of presenting a writ of execution for 193.4 million rubles. It arose during the period when the company was headed by Valery Pozdnyakov, who was supposed to demand the debt, for which he had about two years. At the same time, the circle of obligated persons is not limited to the former director of bankrupt, recognized the economy. With the opening of bankruptcy proceedings in relation to Mashstroy in December 2021, the obligation to make funds from the debtor transferred to the AU and “objectively existed” until the expiration of the term for the presentation of the writ of execution in June 2022. Consequently, “both are obliged to be responsible for the harm caused to this society,” and in solidarity as the components of harm, the collegium established.
Thus, the lower courts should have found out whether there are the fault of the ex-director of non-fulfillment of the obligation to recover receivables “for a long period of time”, which affects the presence of the right to sue the AU, the economy college emphasized. The fact is that the joint debtor cannot file a lawsuit against another joint debtor, until “he himself does not compensate the victim in full,” the Armed Forces. The appeal of the owner or head of the bankrupt company demanding an AU was made by the Board, “it can be caused by the protection of their own interests” in order to avoid responsibility for a similar offense (inaction) in the claim of creditors. Moreover, according to the Armed Forces, bankrupt creditors can support only those claims that are presented by a representative or participant in the payable community, to which the ex-head of the company does not belong. As a result, the dispute is aimed at a new consideration to the first instance, which should take into account these explanations.
Injurities and creditors
Lawyers surveyed by Kommersant support the conclusions of the Armed Forces about joint liability, believing that bankrupt creditors will only benefit from this. The Executive Director of the Criminal Code of the Criminal Code Anna Larina notes that the components of the harm have the right to file a lawsuit to each other « only in the part that exceeds the amount of personal responsibility, and only after the damage is compensated. » Moreover, this position of the Armed Forces may apply to other obligations that are transferring from the director of the bankrupt to the bankruptcy trustee, including the appeal of judicial acts and the rejection of the contract, the Akhmetov’s legal executive adviser to Orchards.
Meanwhile, not all experts agree to the inadmissibility of joining creditors to the requirements of the ex-head of the company. Despite the fact that the founder of the bankrupt “pursued his own goals, such a statement can be considered filed in the interests of creditors, too,” said AU Sergey Domnin. However, according to the president of the Union of AU NCRB Valeria Gerasimenko, the ex-director, rather, acted “not in the interests of the competitive mass, but in defense of his own interests”, that is, “he was primarily interested in the maximum satisfaction of the claims of creditors, but so that the damage was not entrusted with him.” At the same time, the conclusions of the Armed Forces do not deprive creditors of the right to recover damage from the contemplations of harm, because “the question is not who the lawsuit is stated, but in whose interests the applicant acts,” Ms. Gerasimenko points out. Such an approach, in the opinion of Sergei Domnin, « is designed to stimulate creditors to independent active actions to protect his rights. »
“In bankrupt and corporate disputes, both sides often commit a violation, which then begin to blame each other of abuses, competing of the speed of the claim,” Azat Akhmetov notes. According to him, « the verification of the right to lawsuit, not only by formal signs, but also by the essential ones – a very correct position, for the inconsistent and abusing person cannot act as the prosecutor of his own accomplice. » At the same time, Mr. Akhmetov would like to see in the positions of the Armed Forces and the criteria of conscientiousness, exempting from the liability of the manager, from which information about the presence of debt, or ex-director, was hidden, if he in advance reported the presence of receivables and demanded that the specific actions to recover.
