The Supreme Court upheld the bankrupt's security transactions
04 feb 2022
From September 2016 to July 2017, Khortytsya LLC entered into seven pledge agreements and two guarantee agreements with Bank Yugra for a total amount of more than 50 billion rubles. All agreements ensured the return of loans taken from the bank by nine construction and oil companies from 2014 to 2017. Since 2006, LLC Khortytsya has been producing petroleum gas, crude oil and providing drilling services, according to Casebook. Until December 2017, it had a license at the Multanovskoye field in the Khanty-Mansiysk Autonomous Okrug - Yugra.
These companies, including more than half of Yugra Bank, were controlled by Alexei Khotin, until recently one of Russia's richest businessmen. Now he is under arrest on charges of embezzlement of 290.5 billion rubles. from Yugra, which went bankrupt in September 2018 (case No. A40-145500/2017). The Deposit Insurance Agency, which became the manager of the bank, revealed signs of a crime under Part 4 of Art. 160 of the Criminal Code of the Russian Federation and expressed in the theft of property belonging to the bank under the guise of issuing loans to legal entities. As reported by the Deposit Insurance Agency in the FSB, loans were provided under dubious collateral, whose liquidity did not guarantee repayment of the debt. The criminal investigation is ongoing.
Harm to creditors
And in March 2019, at the request of the tax authorities, the Moscow Arbitration Court introduced a monitoring procedure in relation to Khortytsia, which had accumulated more than 800 million rubles. tax debts. In August 2020, the court declared the debtor bankrupt (case No. A40-83941/2018).
The Moscow Arbitration Court approved Dmitry Kuznetsov as the bankruptcy trustee of the company. He decided to challenge the pledge and guarantee agreements concluded with the bank on the basis of paragraph 2 of Art. 61.2 of the Bankruptcy Law, since the total amount of contracts exceeds the value of the net assets of the debtor as of 2017. According to Kuznetsov, the transactions were made in order to harm creditors.
On December 7, 2020, the Arbitration Court of the city of Moscow satisfied the requirements of the manager and declared the transactions invalid. The first instance considered that the parties entered into disputed transactions during the period of suspicion and there was no economic expediency for the debtor in them. In addition, the court found that the bank, the debtor and the borrowers belong to the same group of persons and have a single ultimate beneficiary, Khotin. According to ASGM, this proves that the bank was aware of the financial problems of the debtor and the insolvency of some of the borrowers in whose favor the disputed transactions were concluded. Khortytsya LLC assumed obviously unfulfillable obligations, which caused harm to external creditors, as their claims began to give way to the bank's collateral claims, the ASGM decided.
The court also noted that the issue of the bank's good faith had already been discussed in case No. A75-6869/2018. In it, the bank wanted to register three controversial mortgage agreements that it concluded with the debtor in the summer of 2017. First, the Arbitration Court of the Khanty-Mansiysk Autonomous Okrug satisfied the plaintiff's claims, but this decision was canceled by the 8th AAC. According to the appeal, the bank's requirement for state registration of the right of pledge is aimed at violating the rights and legitimate interests of creditors of Khortytsia LLC, which include the Federal Tax Service of Russia No. 43 for the city of Moscow. The behavior of the bank cannot be considered conscientious, it is contrary to the provisions of Art. 10 of the Civil Code of the Russian Federation, the court decided. As a result, the 8th AAC refused to register the disputed contracts.
The appeal and cassation agreed with the recognition of the transactions as invalid, after which the deposit insurance agency appealed to the Supreme Court.
Reasons for bankruptcy
In its cassation appeal, the DIA insisted that at the time the transactions were concluded, the debtor was solvent, was active in business and had significant assets - oil wells and expensive equipment, the manager said.
According to the DIA, the bankruptcy of the debtor arose after the creation of a subsidiary of Multanovskoye LLC, for which Khortytsya LLC re-issued its license to operate an oil field in December 2017. This happened after the conclusion of security transactions, so the bankruptcy of the company is not connected with them, the creditor believes.
This complaint was singled out by the RF Armed Forces and submitted for consideration, which took place on February 3, 2022.
Economic sense
Olga Permyakova, a representative of the DIA, was the first to speak at the meeting. She assured that all the disputed contracts were concluded in the interests of Khortytsia LLC. The bank issued loans to companies that built real estate for the debtor, so these transactions made economic sense for society, the representative believes.
According to Permyakova, the first instance made a conclusion about insolvency only on the basis of a negative balance sheet and did not investigate the causes of the debt. The court also had no reason to recognize the actions of the bank in bad faith, since the courts refused to register mortgage agreements not because of abuse, the representative says. “We asked to register the contracts, as Khortytsya evaded registration. But the courts considered that there was no evasion, so we were denied satisfaction of the claim, ”Permyakova explained.
She was opposed by the lawyer of Khortytsya LLC Vasily Pichuzhkin. According to him, it was the controversial transactions that led the debtor to bankruptcy. “The amount of claims exceeded the debtor's assets by 200%. This is objective bankruptcy. The company needed 10 years to recover,” the spokesman said.
What was the term of the loans? asked Judge Ivan Razumov.
- Each contract was different. For most of them, it was downloaded until 2023. There has already been a delay in terms of the agreements,” Pichushkin answered.
Interests of depositors
The next speaker was Dmitry Stekolnikov, representative of the bankruptcy creditor OOO NBK-Surgut. He drew the attention of the court to the fact that due to controversial security transactions, the debtor cannot fulfill his obligations to independent creditors. If Khortytsya LLC had not pledged all its property, it would not have been able to pay off debts, the representative is sure. “It is not clear why independent creditors and the budget are now suffering because of the actions of the bank,” Stekolnikov said.
Why should bank depositors suffer? Why do you think that your interest should be a priority? Judge Razumov asked a question.
- When we entered into an agreement with LLC "Khortytsya", we did not know that it was headed by the bank "Ugra". Moreover, we could not know that he would go bankrupt. The deposits were insured. They got at least something, and we got nothing,” the representative replied.
“But the depositors also didn’t know that their money would go to the construction of wells, and then their bank would go bankrupt.
After listening to the parties, the court changed the judicial acts in terms of declaring the transactions invalid, in this part the application of the bankruptcy trustee of the debtor of the Armed Forces of the Russian Federation was left without consideration. Thus, the Economic Collegium of the Supreme Court upheld the pledge and surety agreements concluded between Khortytsya LLC and Yugra Bank.
The Supreme Court upheld the bankrupt's security transactions
From September 2016 to July 2017, Khortytsya LLC entered into seven pledge agreements and two guarantee agreements with Bank Yugra for a total amount of more than 50 billion rubles. All agreements ensured the return of loans taken from the bank by nine construction and oil companies from 2014 to 2017. Since 2006, LLC Khortytsya has been producing petroleum gas, crude oil and providing drilling services, according to Casebook. Until December 2017, it had a license at the Multanovskoye field in the Khanty-Mansiysk Autonomous Okrug - Yugra.
These companies, including more than half of Yugra Bank, were controlled by Alexei Khotin, until recently one of Russia's richest businessmen. Now he is under arrest on charges of embezzlement of 290.5 billion rubles. from Yugra, which went bankrupt in September 2018 (case No. A40-145500/2017). The Deposit Insurance Agency, which became the manager of the bank, revealed signs of a crime under Part 4 of Art. 160 of the Criminal Code of the Russian Federation and expressed in the theft of property belonging to the bank under the guise of issuing loans to legal entities. As reported by the Deposit Insurance Agency in the FSB, loans were provided under dubious collateral, whose liquidity did not guarantee repayment of the debt. The criminal investigation is ongoing.
Harm to creditors
And in March 2019, at the request of the tax authorities, the Moscow Arbitration Court introduced a monitoring procedure in relation to Khortytsia, which had accumulated more than 800 million rubles. tax debts. In August 2020, the court declared the debtor bankrupt (case No. A40-83941/2018).
The Moscow Arbitration Court approved Dmitry Kuznetsov as the bankruptcy trustee of the company. He decided to challenge the pledge and guarantee agreements concluded with the bank on the basis of paragraph 2 of Art. 61.2 of the Bankruptcy Law, since the total amount of contracts exceeds the value of the net assets of the debtor as of 2017. According to Kuznetsov, the transactions were made in order to harm creditors.
On December 7, 2020, the Arbitration Court of the city of Moscow satisfied the requirements of the manager and declared the transactions invalid. The first instance considered that the parties entered into disputed transactions during the period of suspicion and there was no economic expediency for the debtor in them. In addition, the court found that the bank, the debtor and the borrowers belong to the same group of persons and have a single ultimate beneficiary, Khotin. According to ASGM, this proves that the bank was aware of the financial problems of the debtor and the insolvency of some of the borrowers in whose favor the disputed transactions were concluded. Khortytsya LLC assumed obviously unfulfillable obligations, which caused harm to external creditors, as their claims began to give way to the bank's collateral claims, the ASGM decided.
The court also noted that the issue of the bank's good faith had already been discussed in case No. A75-6869/2018. In it, the bank wanted to register three controversial mortgage agreements that it concluded with the debtor in the summer of 2017. First, the Arbitration Court of the Khanty-Mansiysk Autonomous Okrug satisfied the plaintiff's claims, but this decision was canceled by the 8th AAC. According to the appeal, the bank's requirement for state registration of the right of pledge is aimed at violating the rights and legitimate interests of creditors of Khortytsia LLC, which include the Federal Tax Service of Russia No. 43 for the city of Moscow. The behavior of the bank cannot be considered conscientious, it is contrary to the provisions of Art. 10 of the Civil Code of the Russian Federation, the court decided. As a result, the 8th AAC refused to register the disputed contracts.
The appeal and cassation agreed with the recognition of the transactions as invalid, after which the deposit insurance agency appealed to the Supreme Court.
Reasons for bankruptcy
In its cassation appeal, the DIA insisted that at the time the transactions were concluded, the debtor was solvent, was active in business and had significant assets - oil wells and expensive equipment, the manager said.
According to the DIA, the bankruptcy of the debtor arose after the creation of a subsidiary of Multanovskoye LLC, for which Khortytsya LLC re-issued its license to operate an oil field in December 2017. This happened after the conclusion of security transactions, so the bankruptcy of the company is not connected with them, the creditor believes.
This complaint was singled out by the RF Armed Forces and submitted for consideration, which took place on February 3, 2022.
Economic sense
Olga Permyakova, a representative of the DIA, was the first to speak at the meeting. She assured that all the disputed contracts were concluded in the interests of Khortytsia LLC. The bank issued loans to companies that built real estate for the debtor, so these transactions made economic sense for society, the representative believes.
According to Permyakova, the first instance made a conclusion about insolvency only on the basis of a negative balance sheet and did not investigate the causes of the debt. The court also had no reason to recognize the actions of the bank in bad faith, since the courts refused to register mortgage agreements not because of abuse, the representative says. “We asked to register the contracts, as Khortytsya evaded registration. But the courts considered that there was no evasion, so we were denied satisfaction of the claim, ”Permyakova explained.
She was opposed by the lawyer of Khortytsya LLC Vasily Pichuzhkin. According to him, it was the controversial transactions that led the debtor to bankruptcy. “The amount of claims exceeded the debtor's assets by 200%. This is objective bankruptcy. The company needed 10 years to recover,” the spokesman said.
What was the term of the loans? asked Judge Ivan Razumov.
- Each contract was different. For most of them, it was downloaded until 2023. There has already been a delay in terms of the agreements,” Pichushkin answered.
Interests of depositors
The next speaker was Dmitry Stekolnikov, representative of the bankruptcy creditor OOO NBK-Surgut. He drew the attention of the court to the fact that due to controversial security transactions, the debtor cannot fulfill his obligations to independent creditors. If Khortytsya LLC had not pledged all its property, it would not have been able to pay off debts, the representative is sure. “It is not clear why independent creditors and the budget are now suffering because of the actions of the bank,” Stekolnikov said.
Why should bank depositors suffer? Why do you think that your interest should be a priority? Judge Razumov asked a question.
- When we entered into an agreement with LLC "Khortytsya", we did not know that it was headed by the bank "Ugra". Moreover, we could not know that he would go bankrupt. The deposits were insured. They got at least something, and we got nothing,” the representative replied.
“But the depositors also didn’t know that their money would go to the construction of wells, and then their bank would go bankrupt.
After listening to the parties, the court changed the judicial acts in terms of declaring the transactions invalid, in this part the application of the bankruptcy trustee of the debtor of the Armed Forces of the Russian Federation was left without consideration. Thus, the Economic Collegium of the Supreme Court upheld the pledge and surety agreements concluded between Khortytsya LLC and Yugra Bank.
Link: https://pravo.ru/story/238724/