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As part of the judicial reform, in accordance with the Federal Constitutional Laws "On the Judicial System of the Russian Federation" and "On Arbitration Courts in the Russian Federation", a unified judicial system. It also includes arbitration courts with federal status.
Arbitration courts are specialized courts for resolving property, commercial disputes between enterprises. They also consider the claims of entrepreneurs for the invalidation of acts of state bodies that violate their rights and legitimate interests. These are tax, land and other disputes arising from administrative, financial and other legal relations. Arbitration courts consider disputes involving foreign entrepreneurs.
The debtor was declared insolvent (bankrupt) and bankruptcy proceedings were opened against him. Among other things, the debtor's property includes a "thing" worth 1,000 rubles, which is pledged in favor of one of the creditors. This creditor presented his claims in the bankruptcy case, his claims in the amount of 2,000 rubles are included in the third order of the register of claims of the debtor's creditors as secured by the "thing".
Consistent with paragraph 2 of clause 4 of Article 138 of the Federal Law "On Insolvency (Bankruptcy)" dated October 26, 2002 No. 127-FZ, the procedure and conditions for ensuring the safety of the subject of pledge are determined by the competitive creditor, whose requirements are secured by a pledge of realizable property.
In accordance with paragraph 6 of Article 138 of the Bankruptcy Law, the costs of ensuring the safety of the subject of pledge and its sale at auction are covered from the funds received from the sale of the subject of pledge, until these funds are spent in accordance with paragraphs 1 and 2 of this article.
In the course of bankruptcy proceedings, auctions are held, but still this "thing" cannot find its new owner.
After 10 months, the costs of securing the collateral will be slightly lower than its price at the current stage of the public offer (for example, 100 rubles expenses and 120 rubles current price). Suppose that exactly then, during the public offer, the creditor decided to keep the collateral. At a price of 100 rubles, an application for participation in the auction was ready to be received.
The bankruptcy creditor for obligations secured by a pledge of the debtor's property has the right to retain the subject of pledge during the auction for the sale of the debtor's property through a public offer at any stage of reducing the price of such property in the absence of bids for participation in the auction at the price established for this stage of reducing the price of property . (Clause 4.2. Article 138 of the Bankruptcy Law). At the same time, the creditor, when leaving the collateral, transfers from 5 to 20% (if, for example, obligations under a loan agreement are secured) of the current value of the property left behind to a special bank account of the debtor.
The bankruptcy trustee will be able to repay the expenses for ensuring the safety of the pledged item only from 5% of the value transferred to him by the creditor who retained the pledged item. Based on the cost of the item and the stage of price reduction during the public offer, these 5% in monetary terms can amount to 6 rubles.
Thus, 94 rubles (100 - 6) of expenses for ensuring the safety of the collateral property will remain outstanding from the funds from this collateral property.
I believe that it is wrong to attribute the costs of ensuring the safety of collateral to the total bankruptcy estate, it was to exclude such situations, as I understand it, that paragraph 6 was introduced into the Bankruptcy Law in 2014.
How then to repay the debt to the person who ensured the safety of the collateral?
Appeal to the creditor, who left the subject of pledge behind him, with a claim for the recovery of expenses for ensuring the safety of the subject of pledge? But after all, before leaving behind the subject of pledge, the creditor was not its owner and did not have to bear the burden of maintaining this property. According to paragraph 4 of Article 138 of the Bankruptcy Law, it determines only the procedure and conditions for ensuring the safety of property.
On the other hand, it turns out that if the claim for the security of the subject of pledge against the secured creditor is not subject to satisfaction, then the secured creditor, when leaving the subject of pledge behind him, is in a more advantageous position than if the property was bought at auction. The person who has been ensuring the safety of the pledged item all this time also becomes a "hostage" of the actions of the secured creditor (will keep it or allow it to be sold).
The opinion of respected colleagues on this issue is interesting.
Collateral is the most common method of securing loan obligations. If the debtor has not fulfilled or overdue the terms of payments, the pledged property will become a security that can be collected on account of the debt. A secured creditor in bankruptcy has certain rights and a special status. Let's take a closer look at what they are.
Who is a secured lender
In an insolvency case secured creditor- the one whose claims are “covered” by collateral property owned by the debtor. Bankruptcy, no matter what procedure it takes place and at what stage it is, does not cancel the mortgage relationship. A secured creditor is a bankruptcy creditor with certain rights and restrictions.
In other words, the secured creditor in the bankruptcy case will not lose his status and will definitely get back the money secured by the pledge - this is guaranteed by law.
Privileges of a secured creditor
In a bankruptcy case, the claims of a secured creditor belong to the third priority, but its status also has a number of advantages that are guaranteed to it by the Federal Law of October 26, 2002 No. 127-ФЗ “On Insolvency (Bankruptcy)”:
- He is the only one of all creditors who has the right to get back the borrowed funds by selling the collateral at any time when he so requires. If the bankruptcy procedure has already begun, this requirement can be voiced only through a court decision. Art. 138 of the Bankruptcy Law gives him the right to receive 70% of the proceeds from the sale of the collateral.
- The debtor cannot conclude a settlement agreement if the secured creditor does not give his direct consent to this (clause 2, article 150 of the Bankruptcy Law).
- During bankruptcy proceedings, it is impossible to replace the debtor's assets (clause 2, article 149 of the Federal Law No. 127).
- In some cases, the secured creditor has the right not to sell the subject of the pledge, but to keep it for himself (Article 18 of the Federal Law No. 127). But in this case, he will have to transfer part of the cost (20-30%) to the bank account indicated by the court - as a share of the remuneration of the arbitration manager.
- The lender determines the procedure and conditions for the sale of the collateral (clause 4, article 138 of the Federal Law No. 127).
Secured Lender Restrictions
This status is considered privileged, but in fact it implies quite serious duties and restrictions. Because of them, sometimes a secured creditor may waive his rights in order to receive some recovery from the bankruptcy proceeds.
The main limitation is the ban on voting when making decisions in the meeting of creditors in bankruptcy proceedings. He may vote not on financial matters, but only for the approval or removal of an arbitration manager and for the transition from bankruptcy proceedings to external management. Because of this ban, it may turn out that 70% of the funds due to the creditor from the sale of collateral will become unattainable. To get them, you need to end their "collateral" status and return their "vote" - in whole or only in part.
FOR EXAMPLE. Imagine that the claims of the secured lender exceed those of other borrowers. Then it will be beneficial for him to divide the entire collateral mass - to declare part of it “non-collateral”, this will provide a vote in the meeting of creditors, and to leave a part of the collateral, which will make it possible to receive it with guarantee.
The Court will allow such a change of status if it is made before the closure of the registry.
Thus, a secured creditor can regulate its guarantees by combining the right of lien and control of bankruptcy procedures through participation in voting at meetings of creditors.
Under what circumstances can property be sold?
V normal situations, if bankruptcy proceedings have been initiated, the creditor has the right to initiate the sale of collateral exclusively through the court, as required by paragraph 1 of Art. 18. 1 FZ No. 127. The secured creditor may sue for the recovery of collateral through the sale of collateral at the stage of financial recovery or external management:
- if the creditor is convinced of the risk of loss or damage to the collateral, which may reduce its value upon sale;
- the sale of collateral will not have a fatal effect on the possibility of restoring the debtor's solvency.
In the latter case, the secured creditor will be refused (but will acquire the right to vote). For example, the pledge contains important equipment that is key to the production of the debtor. It is clear that if it is sold to satisfy the requirements of the creditor, then the debtor will never restore his solvency, and he will easily prove this.
Distribution of collateral
If the pledged property is sold for a higher price than the debt, the creditor will receive not 70% of them, as it is written in the law, but only the amount of the debt. In other cases, its share is 70% of the amount of the sale of the pledge.
The remaining funds are distributed as follows:
- 20% goes to repay the claims of creditors of the first and second priority, if the rest of the property was not enough to repay them;
- 10% is intended for various expenses and fees for arbitration managers, as well as for those persons whom they attracted.
REFERENCE! Funds for the organization of auctions and the preservation of the collateral are also included in the last 10%, that is, they are taken from the amount of the sale of collateral.
Claims of a secured creditor
In order for a secured creditor to be able to exercise the privileges of his status, care must be taken to include them in the registry. For this, a certain period is provided. If a term is omitted, refund rights are not forfeited, but revert to normal status. The only advantage for the secured lender will then be that among other "latecomers" he will be in priority.
Before including property in the register as collateral, the court must make sure that it is present in kind. The obligation to prove the existence of collateral lies with the pledgee. But sometimes the court may offer to prove the presence or absence of collateral to the arbitration manager or other creditors who protest against the inclusion of this requirement in the register.
Realization of collateral
The sale of collateral property is carried out at a specially organized auction. The procedure and terms are determined by the secured creditor. The law does not establish strict requirements regarding the terms, appealing to "reasonableness". The bankruptcy commissioner in an appeal to the creditor asks him to fix the conditions of the auction in advance. If the secured creditor does not want to do this, the arbitral tribunal will fulfill these obligations.
IMPORTANT! No other participant in the bankruptcy case can influence the sale of pledged property - only the pledge creditor or the arbitration court.
After the auction, they can be recognized as valid or invalid. The auction did not take place if the pledge could not be sold twice. At repeated auctions, the value of the collateral sold is reduced by one tenth.
After the failed auction, the pledge will simply be transferred to the creditor within a month - after all, in fact, now it is his property, which he has the right to dispose of at his own discretion. The creditor must notify the bankruptcy trustee in advance of the intention to keep the pledge for himself.
If the secured lender is not going to take ownership of the unrealized collateral, it will be sold through a public offering.
If bankruptcy creditors, whose claims are secured by a pledge of the debtor’s property, do not refuse to sell the subject of pledge, or if the arbitration court does not issue a ruling to refuse to satisfy the application for the sale of the subject of pledge, then this category of creditors will not be able to accept in the course of financial rehabilitation and external management at the meeting of creditors of the decision, except for:paragraph 1 of Art. 12 ZoB in the new edition sounds like this (extract):
"Bankruptcy creditors, whose claims are secured by a pledge of the debtor's property, have the right to vote at meetings of creditors
during the observation;
in the course of financial recovery and external management in the event of refusal to sell the subject of pledge or the arbitration court issues a ruling to refuse to satisfy the application for the sale of the subject of pledge in the course of the relevant procedure applied in a bankruptcy case.Competitive creditors, in respect of claims that are secured by a pledge of the debtor's property and for which they do not have the right to vote at meetings of creditors, have the right to participate in the meeting of creditors without the right to vote, including speaking on the agenda of the meeting of creditors.
1. inclusion in the external management plan as a measure to restore the debtor's solvency of the replacement of assets. Such a decision in accordance with Article 115 of the Federal Law "On Insolvency (Bankruptcy)" can be made provided that all creditors whose obligations are secured by a pledge of the debtor's property voted for such a decision.
2. In accordance with Article 150 of the Federal Law “On Insolvency (Bankruptcy)”, the decision of the meeting of creditors in the course of financial recovery and external management to conclude a settlement agreement is made by a majority vote of the total number of votes of bankruptcy creditors and authorized bodies in accordance with the register of creditors’ claims and is considered adopted provided that all creditors on obligations secured by the pledge of the debtor's property voted for it.
Bankruptcy creditors, whose claims are secured by a pledge of the debtor's property, do not vote at creditors' meetings during bankruptcy proceedings, except in the following cases:
1. In accordance with Article 141 of the Federal Law “On Insolvency (Bankruptcy)”, based on the decision of the meeting of creditors during bankruptcy proceedings, the debtor’s assets may be replaced, provided that all creditors whose obligations are secured by a pledge of the debtor’s property voted for such a decision;
2. In accordance with Article 150 of the Federal Law "On Insolvency (Bankruptcy)", the decision of the meeting of creditors to conclude a settlement agreement is made by a majority vote of the total number of votes of bankruptcy creditors and authorized bodies in accordance with the register of creditors' claims and is considered adopted provided that it is voted for all creditors for obligations secured by a pledge of the debtor's property.
The status of secured creditors in bankruptcy cases is often referred to as privileged. But in addition to "privileges", it also implies a number of serious restrictions compared to the status of ordinary bankruptcy creditors. So serious that sometimes the creditor has to give up privileges in order to return the money.
“Privileges” should be understood as special rights guaranteed to the secured creditor by law (paragraph 1 federal law dated October 26, 2002 No. 127-FZ "On Insolvency (Bankruptcy)", hereinafter - ZB), the main of which is the right to receive 70% of the proceeds from the sale of the collateral.
Let us briefly list other rights of a secured creditor that distinguish it from others. This status implies the impossibility of replacing the debtor's assets in the course of bankruptcy proceedings (paragraph 2 of article 141 BA) and the conclusion of a settlement agreement without the will of the secured creditor (paragraph 2 of article 150 BA). The secured creditor has the right to retain the pledged property in the cases provided for by the Bankruptcy Law (clause 5 of article 18.1 of the BA), as well as the right to determine the procedure and conditions for the sale of the pledged property (clause 4 of article 138 of the BA).
But among the restrictions, the main one for secured creditors is the ban on voting. It is valid when decisions are made by the meeting of creditors in the bankruptcy proceedings (paragraph 1 of article 12 of the BA), with the exception of cases expressly mentioned in the law
This prohibition often leads to the fact that the right of the secured creditor to receive 70% of the proceeds from the sale of the subject of the pledge, in fact, becomes unrealizable. And he is forced to ask to be included in the register as non-collateral (voting). If the creditor's claims were previously included in the register as pledges, the creditor is forced to request that the pledge status be terminated in respect of all or part of the claims.
What were the consequences of this? The possibility of establishing the claims of a creditor secured by a pledge as non-collateral caused serious difficulties for the courts, which formed conflicting judicial practice on this issue (see Ruling of the Arbitration Court of the North Caucasus District dated April 27, 2015 No. F08-2008/2015 in case No. A32-18644 /2014). In an attempt to correct such inconsistency judicial practice The Supreme Arbitration Court of the Russian Federation in paragraph 3 of Resolution of the Plenum dated July 23, 2009 No. 58 “On Certain Issues Related to Satisfying the Claims of a Pledgor in the Event of the Pledgor’s Bankruptcy” (hereinafter referred to as Resolution No. 58) clarified that if the creditor did not refer to the existence of collateral relations when establishing the requirements , as a result of which the court established these claims as not secured by a pledge, then subsequently the creditor has the right to apply for recognition of the status of a secured creditor in the case. At the same time, such an application can be satisfied by the court only on the condition that the creditor filed an application no later than the deadline for closing the registry (paragraph 1 of article 142 of the BA; paragraph 4 of resolution No. 58)
Another serious problem for the courts was the issue of the admissibility of terminating the pledge status of claims (part of them) included in the register. The courts have resisted the idea that a claim established as a security deposit cannot become fully or partially unsecured, including by assigning a part of such a claim with the condition that such a part is assigned without security (see Ruling of the Eighth Arbitration Court of Appeal dated 29.06. 2011 in case No. A46-13479/2009). In turn, the Supreme Arbitration Court of the Russian Federation pointed out the admissibility of recognizing a pledge claim as non-collateral in Resolution of the Presidium No. 14021/11 dated April 17, 2012 in case No. A46-13479 / 2009 (later this approach was confirmed by the Determination Supreme Court RF dated 01.08.2016 No. 308 ES15-6280(3) in case No. А32-29459/2012), from which it follows that the Bankruptcy Law does not prohibit a secured creditor from relinquishing all or part of its security rights.
Confession judicial practice, including the Supreme Arbitration Court of the Russian Federation and the Supreme Court of the Russian Federation, the admissibility of a secured creditor's refusal to exercise security rights is an important guarantee for such a creditor, which is often more profitable to control the course of bankruptcy proceedings by voting at meetings of creditors to the detriment of its security rights.
Bagaev Yan Yakovlevich, lawyer at Infralex LLC
