The Supreme Court restricted the sale of assets of the bankrupt’s spouse – Kommersant

The Supreme Court of the Russian Federation (SC) spoke about the possibility of selling jointly acquired property in the event of bankruptcy of the spouses. As part of the bankruptcy of IP Lemira Aramisova, the financial manager challenged the sale transaction for 600 thousand rubles. building and two land plots owned by Audit Security LLC. The co-owner of this company was the debtor’s spouse, against whom a bankruptcy case was also initiated.

In October 2022, the Moscow Arbitration Court satisfied the claim of the manager and declared the sale invalid. But the appeal and cassation canceled the decision of the court of first instance, leaving the deal in force. The courts considered that the contract “is not a transaction made by Lemira Aramisova or other persons at her expense”, therefore “cannot be challenged in the framework of an insolvency case”.

The manager complained to the Supreme Court: in his opinion, there are no obstacles to challenging such a transaction. The case was referred to the Economic Collegium of the Armed Forces, which recognized it as possible to cancel the transaction, even if the bankrupt citizen himself is not a party to it.

The Supreme Court recalled that in case of bankruptcy of a citizen, it is possible to sell not only his personal assets, but also property belonging to him on the right of joint ownership with his spouse. The consequence of the alienation of Audit Security’s property was “a decrease in the value of its assets”, which also entailed “a decrease in the value of the share of the debtor’s spouse in the authorized capital of this company,” the decision says.

And since the share in the LLC is jointly owned by the spouses, the disputed transaction affects the formation and size of the bankruptcy estate of the debtor, that is, the satisfaction of the claims of her creditors, the Supreme Court emphasized. As a result, the board sent the dispute for a new consideration on appeal.

According to Tatyana Makarenko, a leading lawyer at the Gurichev, Malinin and Partners law firm, it is important that the Supreme Court took into account the circumstances of the dispute, which “indicate the unfair behavior of the spouses and the withdrawal of assets.”

Thus, the Supreme Court has expanded the list of cases that fall under the concept of “transactions made not by the debtor, but by other persons at the expense of the debtor”, which is “a positive development in practice and increases the means of protecting the rights of creditors,” notes Anton Krasnikov, partner at Sotheby law firm.

Ekaterina Volkova