The Supreme Court explained who finances the bankruptcy – Kommersant
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The Supreme Court of the Russian Federation (SC) distributed the responsibilities for financing the bankruptcy of the company. In November 2018, Baza SM LLC was declared bankrupt on the initiative of RusBusinessAktiv-Kuban LLC. Since the debtor did not have the funds for the insolvency procedure, the creditor-applicant must bear these costs by law. Meanwhile, in March 2022, RusBusinessAktiv – Kuban for 10 thousand rubles. ceded his rights of claim to Baza SM in favor of Forward LLC and applied to the court with a request for succession.
Arbitration courts replaced RusBusinessAktiv-Kuban’s creditor with Forward, noting that the latter also received the obligation to bear all expenses within the framework of bankruptcy, including payment for the services of an arbitration manager and the specialists involved by him (more see “Kommersant” of July 27). The manager applied to the Supreme Court, considering the behavior of the first creditor an abuse of the right, since he transferred the obligation to pay court costs to a financially insolvent person. The case was referred to the Economic Collegium of the Armed Forces, which provided important clarifications for practice.
The Supreme Court agreed that along with the rights of the creditor in the bankruptcy case, Forward also received the obligation to pay the costs of the bankruptcy procedure. However, according to the Civil Code, the assignment of one’s debt to another person is allowed only with the consent of the creditor, the decision says. But the case file does not say that the manager gave his consent to the transfer of obligations to finance the procedure from the applicant to his successor. Consequently, “the original and new creditors are jointly and severally liable to the arbitration manager for the counter performance of the applicant’s obligations in the bankruptcy case that arose before the replacement of the creditor,” concluded the Supreme Court. Thus, the costs of the procedure can be recovered from both companies jointly or from either of them in full.
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