Bankruptcy law reform is being prepared in Russia | December 31, 2023

Source: Agency “Moscow”

IN State Duma note that legal issues of bankruptcy are extremely relevant due to the huge debt burden of a large number of Russians. Details are in the Izvestia article.

Hello scammers

The Supreme Court determined that the courts, without judicial confirmation of the reality of the debt, do not have the right to initiate, at the initiative of banks, using a simplified procedure, an insolvency case against a borrower who could have become a victim of fraud and disputes the “authenticity” of a loan agreement concluded on his behalf.

This position is based on the story of citizen V.F. According to the case materials, her bankruptcy was initiated last year by Norvik Bank. In 2021, a loan of 3.7 million rubles with a floating rate of 12−24% was issued in the name of a 68-year-old woman. Her apartment in Moscow was mortgaged against this loan with a collateral value of 3.7 million rubles.

The woman indicated that she had become a victim of deception: a criminal case was opened in which she was recognized as a victim. The actual circumstances in the case were not indicated, only the lack of evidence of the transfer of funds to V.F.’s current account was mentioned.

Another innovation from the RF Armed Forces suggests that the spouse (including former spouses) of the person against whom a bankruptcy case is being initiated should automatically receive the status of a participant in the case.

This bill is designed to relieve the courts, Ivan Sukharev, First Deputy Chairman of the State Duma Committee on Property, Land and Property Relations, told Izvestia.

Among the advantages of the bill, the deputy sees the simplification of bankruptcy procedures for certain categories of isolated disputes and the unification of the procedure for appealing rulings made by arbitration courts in cases.

Sukharev believes that the disadvantage is that the authors of the draft law propose to introduce such participants in the process as persons who do not have an objective opportunity to present claims against the debtor, but have justified the likelihood of presenting them in the future.

“Simplification and increased efficiency should not lead to restrictions on the rights of citizens,” notes a committee member Federation Council on constitutional legislation and state building Artem Sheikin. — Information about the property status of the debtor’s spouse, especially if it is protected by secret, must be provided with an appropriate protection regime. In this regard, granting the debtor’s spouse the status of a person participating in the bankruptcy case may not be sufficient.

The proposed wording on the right to obtain information “about the property of a citizen and his spouse,” in his opinion, should be adjusted either by the period of formation of such information or by the range of its sources. Otherwise, Russian society may face a flood of divorces by persons against whom bankruptcy proceedings could potentially be initiated, the senator suggests.

The Ministry of Energy of the Russian Federation did not have time to comment on the position on the bill to Izvestia.

Request information

The most important innovation of the draft law, according to Vladimir Shalaev, partner of Legal Group LLC, is the ability to request information about the debtor’s spouse and the obligation of state bodies to provide information to managers. Until now, unfounded refusals could delay the bankruptcy procedure for years, the lawyer explains.

The head of the apparatus of the Moscow regional branch of the Association of Lawyers of Russia, Roman Gerakov, notes that the unification of the appeal procedure with the establishment of the same monthly period for appealing determinations deserves a positive assessment. Plus, the expert highlights the possibility of appealing the decisions of the courts of appeal through the cassation procedure in almost all categories of disputes, which will increase the predictability of the procedure in bankruptcy cases.

Vyacheslav Golenev, a member of the Commission on Ethics and Standards of the Federal Chamber of Lawyers of the Russian Federation, finds it useful to raise the threshold for filing a bankruptcy petition in court.

“In my practice, I haven’t come across non-standard contracts for a long time that require litigation on legal issues with an amount of less than 2-3 million rubles,” says Vyacheslav Golenev. – Less with a high degree of probability and in the vast majority of cases these are ordinary debts. Therefore, there is no need to overload the court with in-person hearings of such bankruptcy cases. The mechanism of enforcement proceedings is sufficient here.

Golenev also considers the innovation of considering disputes over claims without holding an in-person hearing controversial.

“A “race of creditors” will begin, everyone will try to find contact with the manager in order to find out whose demands came from whom,” the lawyer emphasizes. — There is also a compensatory mechanism in the law: the opportunity to subsequently file an application to exclude claims or to lower the priority. I think that in case of large bankruptcies I will use this right everywhere and in fact the number of disputes will not decrease.

Olga Frik, a member of the Federal Notary Chamber commission on image, interaction with the media and public organizations, notary of the city of Omsk, notes that in fact a gift (within jointly acquired property), including money, is considered the personal property of the spouse who received it. An apartment or car purchased with donated funds can also be considered personal property.

Information about jointly acquired property is necessary for the arbitration manager in order to include it in the bankruptcy estate. To avoid this, the bankrupt’s spouse must prove that it is his personal property. For example, the bank keeps the money that his parents gave him. After all, property acquired during marriage is joint property and belongs to the husband and wife.

“And a serious problem arises when you need to provide evidence that the property is really personal and not jointly acquired,” says the notary. — This process may delay the bankruptcy procedure itself.

In this case, in her opinion, it could help, for example, a notarial form of a gift agreement or other transaction, as a result of which the property does not become the joint property, but the personal property of one of the spouses. This would make it possible to avoid abuse and protect the rights of conscientious persons, Olga Frik is convinced.

“In practice, there are already cases when parents give money through a notary to their children who are officially married,” says the interlocutor.

Unloading of ships or the right to defense

The introduced bill contains another innovation regarding the requirements of creditors. Now it is proposed to simplify the work of the courts according to this provision: from the moment the bankruptcy procedure is introduced, 30 days are given to file claims and objections to them. If no objections are received, the court will consider the claim on its own and, without any reasoning, will include or refuse to include the claim in the register. If suddenly there is a complaint about inclusion or refusal, then the court prepares a reasoning part for the appeal.

“This is the case when the efficiency and workload of the courts conflict with the right to judicial protection,” says Evgeniy Suvorov, associate professor of the department of civil law at the O. E. Kutafin University (MSAL). — In particular, the draft does not take into account that there may be no objectors during the observation, since creditors have the right to begin participating in the case right up to the last procedure.

Employees whose demands are included by the manager choose a representative much later, just as they will later be able to familiarize themselves with the materials on establishing a specific requirement to prepare a reasoned complaint, the specialist continues. A revision of the ruling based on new or newly discovered circumstances will not be able to fully help, since this institution does not help persons who “could have known about the defects of the judicial act being passed at the time of the dispute,” Suvorov emphasizes.

“In practice, all this can lead to an increase in the volume of unfounded claims in the register, that is, a reduction in the actual repayment of justified claims of creditors,” the expert said.

Forced collection

Another proposed innovation, according to the Supreme Court, will make it possible to “restore the lost logic of legislative regulation” in order to restore economically justified differentiation of the threshold value for various categories of debtors. The fact is that now the amount for judicial bankruptcy of individuals is higher than for companies. In light of this, the Supreme Court proposes to raise the minimum amount of debt at which bankruptcy of a legal entity is possible. Now the threshold is 300 thousand rubles, the Supreme Court wants to increase it to 2 million rubles. And for special entities (agricultural enterprises, strategic enterprises and organizations, natural monopolies), it is proposed to raise the threshold from 500 thousand to 3 million rubles.

However, BFL senior lawyer Anton Kravchenko disputes this approach. The expert considers an increase in the amount of debt sufficient to initiate bankruptcy proceedings to be unjustified.

“In modern conditions, when enforcement proceedings in practice show very low efficiency, the existing mechanism for initiating bankruptcy proceedings encourages unscrupulous debtors to repay their debts on time,” says the interlocutor. “However, an increase in the nominal amount of debt to initiate bankruptcy proceedings without significant changes in the field of enforcement proceedings is unlikely to have a positive effect on the economy.

In November, the provisions of Law N474-FZ came into force, according to which the extrajudicial bankruptcy procedure through multifunctional centers (MFCs) became available to Russians with debts in the amount of 25 thousand to 1 million rubles.

“According to the amendments, it will become available to citizens, even if the enforcement proceedings are not terminated,” notes Tatyana Shkuratova, a lawyer at the corporate well-being platform “I understand.” — First of all, these are pensioners and other citizens whose only income is social payments.

They will be able to initiate an out-of-court personal bankruptcy procedure one year after the start of forced debt collection from them. Everyone else can do it in seven years. To confirm these circumstances, citizens will need to provide certificates.

Previously, pensioners and other recipients of social benefits could not take advantage of the bankruptcy procedure, since the bailiffs did not terminate enforcement proceedings against them.

Another amendment halves the period after which a person has the right to resort to extrajudicial bankruptcy again, from ten to five years.

Over the three years of the existence of the out-of-court bankruptcy procedure – from September 2020 to September 2023 – according to Fedresurs, 21,523 out-of-court bankruptcy procedures were launched for a total debt of 7.39 billion rubles, 15,702 procedures were completed with a total debt of 5. 42 billion rubles.

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