The Supreme Court will decide who will get the money of the liquidated company abandoned in the bank

The Supreme Court will decide who will get the money of the liquidated company abandoned in the bank



The Supreme Court of the Russian Federation (SC) will decide the fate of the money remaining in the bank after the company’s account is closed. This happens if the organization did not indicate an account in another bank for transferring balances or if the tax authorities excluded it from the Unified State Register of Legal Entities as “abandoned”. In this case, the organization excluded from the register had a creditor who, using a writ of execution, tried to take the money, but the bank refused. The arbitration courts also found that the funds could not be recovered after the client’s account was closed. Now the Supreme Court will consider the dispute. Lawyers believe that the creditor must be allowed to foreclose, otherwise, after the statute of limitations expires, the funds will become the bank's income.

The Supreme Court will consider a dispute over whether a creditor of a liquidated company can claim its money remaining in the bank after the account is closed. ChemIndustriya LLC sued Lapis LLC for 2.5 million rubles. for the delivered goods and received a writ of execution for the forced collection of this debt. The creditor twice - in May and June 2022 - sent the sheet to Alfa Bank, where the Lapisa account was opened. But both times the document was returned with a note that “the debtor is not serviced by the bank.”

It later turned out that the bank closed the Lapisa current account unilaterally on January 10, 2022, and transferred the remaining funds to the “internal bank account for unclaimed amounts.”

With reference to Art. 77 of the Law “On Enforcement Proceedings”, “ChemIndustry” filed a petition with the court to foreclose on this money as “the property of the debtor held by third parties.” In addition, according to the creditor, the bank illegally and “arbitrarily closed” the debtor’s current account. Alfa Bank explained in court that the Lapisa current account was closed on the basis of clause 6.6.2 of the agreement on cash settlement services. This paragraph refers to the termination of the contract and the closure of the account due to the liquidation or termination of the activities of the legal entity.

As a result, the arbitration courts rejected the creditor’s claim, recognizing the bank’s refusal to transfer the money as legal. The issue of the legality of the bank’s actions to close the account is not relevant to the petition, the courts explained.

The decision of the first instance notes that Art. 77 of the law on enforcement proceedings actually allows for foreclosure on the debtor’s property held by third parties on the basis of a judicial act. But according to clause 1, part 4 of the same article, the norm “does not apply in the event of foreclosure on funds held in accounts, deposits or deposits in banks.” The appeal added that the law does not provide for the seizure of the debtor’s money in an account with a third party. Thus, since the Lapis money is now in the bank account, the courts decided that the creditor could not collect it. The Cassation Court agreed with this decision.

"ChemIndustry" appealed to the Supreme Court, believing that the courts incorrectly applied legal norms "due to the substitution of the concept of client accounts with accounting and analytical accounts of credit institutions themselves."

The latter “are not accounts by their legal nature,” the complaint says; an intrabank account is “a personal account for analytical accounting that does not take into account transactions with the funds of bank clients” and is not subject to the prohibition rules. The law protects bank clients from unjustified write-offs, the violation of whose rights is not discussed here. Based on these arguments, the case was transferred to the Economic College of the Supreme Court, the meeting was scheduled for April 3.

The Supreme Court will have to decide who owns the unclaimed funds in the account and whether the creditor of the bank’s former client can claim it, says Vyacheslav Kosakov, managing partner of NOVATOR Legal Group.

“The presence of money not claimed by a bank client after closing an account is not a very common situation, but possible,” clarifies Ivan Stasiuk, advisor to the RKT consulting group. Sometimes the company itself does not indicate an account in another bank for transferring the balance of funds, the lawyer clarifies, but since in this case the account is closed at the initiative of the bank, the debtor is probably an “abandoned company” excluded from the state register.

At the initiative of the tax authorities, hundreds of thousands of Russian organizations are administratively liquidated every year; they are popularly called “abandoned companies.” According to the Federal Tax Service of the Russian Federation, in 2023, tax authorities excluded 33.5 thousand legal entities from the Unified State Register of Legal Entities as inactive (they had not filed reports for more than a year) and another 173 thousand for unreliable data in the state register. In 2022, the number of such organizations was 55.9 thousand and 175.2 thousand, respectively.

The transfer of unclaimed money to a bank account is regulated by Art. 859 of the Civil Code of the Russian Federation, letter of the Central Bank dated July 17, 2014 No. 31-2-11/3653, instruction of the Central Bank dated December 6, 2019 No. 5345-U and clarifications of the Bank of Russia on the application of Law 115-FZ. As follows from legal acts, the fate of the funds depends on the basis for terminating the contract with the bank and the passage of time, notes Boris Glushenkov, a lawyer in the arbitration practice of Stonebridge Legal. Thus, the lawyer explains, money can be transferred to an intrabank account of a credit institution or to a special account with the Central Bank.

A bank client or the owners of a liquidated company (members of an LLC) “can claim from the bank the money remaining in the account within three years,” clarifies Vyacheslav Kosakov. After the statute of limitations expires, the bank can consider the funds as its income, adds Mr. Glushenkov.

Mr. Stasiuk believes that since the client himself has the right to demand a refund of funds after closing the account, the creditor can also claim them. According to the lawyer, here you can act similarly to the rules for foreclosure on receivables, that is, “the bailiff could send a demand to the bank to transfer this money.” “The creditor can recover unclaimed amounts from the debtor’s money in an intrabank account; a different approach would provide banks with ample opportunity for abuse,” believes Boris Glushenkov. Mr. Kosakov agrees with this.

If the Supreme Court supports such a right of creditors, Mr. Glushenkov notes, “this will give them additional protection when collecting debts from the debtor’s bank accounts and may protect them from formal refusals” by credit institutions.

Anna Zanina



Source link