Sacred debt is not due to creditors
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Kommersant analyzed the judicial practice on the fate of payments received by bankrupt citizens in connection with the death of their relatives during military operations in Ukraine. Compensation amounts are 3–6 million rubles. Arbitration courts take an unambiguous position that the creditors of the bankrupt cannot claim this money, that is, the funds are excluded from the bankruptcy estate. Moreover, lawyers note that court decisions are dictated “not by the universal principles of humanity and justice”, but by the current legislation and the position of the Supreme Court of the Russian Federation (SC). However, some debtors themselves want to send compensation to pay off the debt in order to avoid the “brand of bankruptcy”.
“Kommersant” studied the decisions of arbitration courts in the framework of bankruptcy cases of citizens who received social benefits in connection with the death of their relatives during the SVO.
So, on June 28, the Arbitration Court of the Lipetsk Region considered the application of 51-year-old local resident Nika Zaitseva, who asked to exclude from the bankruptcy estate the lump-sum payment that she received in connection with the death of her son. Ms. Zaitseva was declared bankrupt in November 2022 at her own request. The total amount of her debts in the register of creditors’ claims is 557 thousand rubles, of which the main part falls on Sberbank (537 thousand rubles on loans taken in 2020–2021). Another 18 thousand rubles. Nika Zaitseva owes Alfa-Bank under an agreement dated 2022 and about 2 thousand rubles. in the register is taxed.
In May, the debtor’s representative applied to the court for the exclusion of social payments from the bankruptcy estate. It was about 5 million rubles, which Nika Zaitseva, by presidential decree, received for the death of her son Dmitry in the line of military service during the SVO on the territory of Ukraine on November 11, 2022.
The applicant referred to the Law on Enforcement Proceedings, according to which recovery could not be levied on the amounts of one-time material assistance in connection with the death of a family member in the line of duty, which is paid from the budget or extrabudgetary sources. The court granted this request, the decision has not yet been published.
The financial manager of Nika Zaitseva, Antonina Zolotareva, told Kommersant that the case of exclusion from the bankruptcy estate of payments for the death of her son is so far the only one in her practice, numbering about 1 thousand bankruptcy cases of citizens.
However, Ms. Zolotareva clarified, Nika Zaitseva plans to pay off her bank debt from the funds received, “she wants to get out of the procedure so that there is no stigma of bankruptcy.”
Case by Case lawyer Yulia Mikhalchuk found several more examples of exclusion from the bankruptcy estate of cash payments that debtors received in connection with the death of military relatives in the SVO. According to her, the precedents took place in January and February in the Arkhangelsk and Orenburg regions. From court decisions it follows that the amounts of payments in cases amounted to 3.1 million and 6.3 million rubles. with the amount of debts of bankrupt citizens to creditors – 1.2–1.3 million rubles.
The legislation provides immunity for certain types of property of a bankrupt citizen, protecting them from recovery, lawyers explain.
For example, money in the amount of the subsistence minimum for the debtor and his dependents, the only housing, personal belongings, clothing items are excluded from the bankruptcy estate.
In addition, the court expert of the Veta group Alexander Terentyev notes that funds provided under social support measures are subject to exclusion from the bankruptcy estate, which is enshrined in the law on enforcement proceedings and the resolution of the plenum of the Supreme Court No. 48 of December 25, 2018 (.pdf).
“Accordingly, the lump sum payment is not included in the bankruptcy estate, not even based on the universal principles of humanity and justice, but simply because the opposite would be in conflict with the legislation and the position of the Supreme Court,” Alexander Terentyev believes.
But if the arbitration manager has questions about the origin and purpose of the funds, or the amount seems too significant, he can turn to the debtor to resolve a potentially disputable situation, “in case of disagreement, the parties go to court, but, as practice shows, he usually takes the side of the debtor, if the origin of the funds and the validity of receiving the payment are supported by documents,” Mr. Terentyev clarifies.
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