The debtor’s transaction is not invalidated.

Category: News Posted on: 10.02.2017

Vasily Kalinin defended the interests of RemTechService LLC (Pyt-Yakh) and RegionTechStroy LLC (Ufa) as part of a statement by the bankruptcy trustee of STK Master LLC on recognition of the cession agreement invalid.
In the decision of the Arbitration Court of the Yamalo-Nenets Autonomous Okrug on refusal to satisfy the application for declaring the debtor’s transaction null and void, the arguments of attorney Vasily Kalinin regarding the inconsistency of the bankruptcy trustee’s arguments were confirmed.

Thus, in the opinion of the bankruptcy trustee, the disputed transaction was made in case of unequal performance of obligations by the other party to the transaction.
In turn, when proceeding in the court of first instance, it is established that the terms of the cession agreements imply that the value of the rights assigned by the debtor is equal to their face value.
In this case, the applicant contested the cession agreement, under the terms of which the debtor gave the interested party the right to demand payment of the debt for the provision of organizational work supervision services to the counterparty. In exchange, the debtor’s indebtedness to the interested party for services rendered under the equipment rental agreement (with the crew) was terminated.

Thus, the parties to the contested transaction received an equal reciprocal execution.
The position of LLC RegionTechStroy that is not reflected in the final judicial act that it is impossible to identify the insolvency with the non-payment of a specific debt to individual creditors.
According to par. 5 p. 12 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation No. 63 of December 23, 2010 “On Certain Issues Related to the Application of Chapter III.1 of the Federal Law“ On Insolvency (Bankruptcy) ”the creditor’s receipt of payment during enforcement proceedings or with a significant delay or a third party for the debtor, or after the filing of an application for declaring the debtor bankrupt by this or another creditor does not in itself mean that the creditor should have been aware of the insolvency of the debtor.

When deciding whether the creditor should have known about the sign of insolvency or insufficiency of property or about the circumstances that allow to conclude about the sign of insolvency or insufficiency of property, it is taken into account how much he could, acting reasonably and showing what was required of him turnover prudence, establish the existence of these circumstances.
Thus, the counterparty of the transaction is not obligated in all cases, concluding the transaction, to check the solvency of the counterparty and the presence of his creditors. The reverse would mean the real difficulty of normal business turnover.

“Under the terms of turnover” in this case means that the transaction requires such verification in the interests of the counterparty itself.
Thus, the transaction under the terms of turnover did not require verification of the counterparty, since the obligations of a reciprocal nature had already arisen and this transaction only ceased.

The interested person in the transaction could not know about the purpose of the debtor to harm the creditor’s property rights, signs of insolvency or insufficiency of the debtor’s property, because the debtor was a valid legal entity at the time of the transaction, information about the start of the liquidation procedure, the introduction of bankruptcy procedures in the register of legal entities there was.

The bankruptcy trustee did not prove that RegionTechStroy LLC knew or should have known that the consequences of the completed transaction are the preference for one of the creditors, therefore, a change in the priority of the creditors’ claims.

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