Managers got hooked on a percentage – Kommersant

The Supreme Court recognized that the transfer of apartments to shareholders of a bankrupt developer is the repayment of creditors’ claims, for which the arbitration manager (AU) is entitled to receive a percentage fee. The completion of the construction of the house and the receipt of housing by citizens took place thanks to the actions of the manager, the board noted, approving the payment of 48 million rubles to him. percent. The SC has previously advocated capping AU percentages, especially when it comes to large amounts. According to experts, the new decision can be explained by the acute social orientation of developers’ bankruptcy cases and the creation of motivation for managers to seek the completion of residential buildings instead of selling unfinished objects.

The Supreme Court clarified what payments the AC can expect in the bankruptcy of developers (.pdf). Following the results of the bankruptcy proceedings of FB Sestroretsk LLC, the manager Konstantin Korobov asked the court to set him a percentage fee in the amount of 48.9 million rubles, since he achieved the transfer of 150 premises to equity holders in the amount of 698 million rubles, which extinguished the register of creditors for 78, 5%.

According to Art. 20.6 of the bankruptcy law, the bankruptcy trustee is entitled to interest (3–7%) for paying off the bankrupt’s debts.

According to the manager, the high result was achieved due to the fact that he negotiated with the Fund for the Protection of the Rights of Shareholders, found an investor and a new developer to complete the construction of the house (commissioned in December 2020).

The Arbitration Court of St. Petersburg and the Leningrad Region satisfied the application of the AU, the appeal agreed with this. But the cassation canceled the payment of interest, deciding that the satisfaction of the claims of equity holders “does not imply the establishment of interest on the remuneration of the AU in the event of their repayment in non-cash form” (see para. “Kommersant” dated April 20). Konstantin Korobov appealed this to the Supreme Court, stating that there are no such restrictions in the law, and the transfer of apartments is “the most effective way to satisfy the requirements of equity holders” and is provided for by Art. 201.11 of the bankruptcy law. The case was referred to the Economic Collegium, which upheld the decision of the first instance, approving the payment of interest to the AC.

The Supreme Court clarified that the register of shareholders’ claims “is part of the register of creditors’ claims.” Unlike “ordinary insolvency cases”, the repayment of claims in the bankruptcy of the developer is possible “not only through cash payments”, but also by transferring housing to equity holders. These “social-oriented rules” are explained by the need for “priority protection of citizens-shareholders as non-professional investors,” the decision says.

The Supreme Court emphasized that such a non-monetary form of repayment of the bankrupt’s debts “does not detract from the very fact of satisfaction of the creditor’s claims” and should “be taken into account when calculating interest.”

The conclusion about the impossibility of accruing interest for the transfer of housing to equity holders “could provoke abuse”, stimulating the AC to “economically inexpedient actions”, for example, the sale of unfinished buildings, the board pointed out. Here, the manager chose the most “optimal procedure for satisfying the requirements of individuals” and the amount of interest “is not excessive,” concluded the Supreme Court.

Diana Vardanyan, senior lawyer at the RCT consulting group, says that the position of the board “will definitely affect the law enforcement practice, which was previously formed not in favor of property developers,” and will contribute to “changing its vector, opening up new opportunities for managers to receive remuneration.” AU Sergei Domnin considers the decision “reasonable and fair”, and “a different approach seems out of touch with reality.” If the Supreme Court supported the cassation’s refusal to pay interest, it could “become a disaster,” Pavel Zamalaev adds, since “developer bankruptcies are one of the most time-consuming and lengthy procedures,” but the fixed remuneration of the AC is only 30 thousand rubles. per month.

According to lawyers, interest on non-monetary repayment of creditors’ claims is applicable only in the bankruptcy of developers.

Sergey Domnin hopes that the approval of the Supreme Court of a large amount of interest (almost 49 million rubles) to the manager will be perceived by the courts “as a guideline in general.” It should be noted that earlier the Supreme Court has repeatedly advocated limiting the right of AC to receive interest. So, in May, the economic board in the case of the Volga Terminal recognized interest as a bonus, which is paid only for a large personal contribution of the manager to repay debts, where the AC asked for 518 million rubles. for payment to the creditor at the expense of the proceeds from the sale of the collateral (.pdf). And in June 2022, the Supreme Court, in the TPGC-Finance case, decided that when paying off debts at the expense of compensation, the manager is not entitled to any interest at all.

According to Sergey Domnin, the new position of the SC can be explained by the desire to smooth out the previously expressed tough stance towards the AU. Diana Vardanyan notes that “the social significance of the bankruptcy of developers in general” also played a role. There is a concrete result here, Alexander Spiridonov, lawyer for KA Delcredere, sums up: “The object is completed, and the equity holders received their apartments, so there is no reason to doubt the effectiveness of the work of the AC and the need to find out if he did everything possible.”

Anna Zanina, Ekaterina Volkova