The Supreme Court: the second bankruptcy can be considered a continuation of the first bankruptcy

The point of the dispute 

In 2012, when the debtor was in the monitoring procedure, a member of the company signed a compensation agreement with him. The interim manager was not informed about this.

According to the agreement, the participant received the main asset of the debtor - the confectionery factory. In exchange, the debtor repaid the debt to the participant on the bill.

The interim manager began to challenge this deal, but the participant of the debtor filed an application for repayment of all claims against the debtor. The participant refunded to the registered creditors, and case on the bankruptcy was closed.

However, after five months, the debtor began to go bankrupt again. The insolvency manager decided to challenge the compensation agreement in the second bankruptcy.

The first and appellate instances decided that the deal had no shortcomings, and the claims against the creditors by the participant were repaid.

The Circuit Court looked at the situation in a different way. It was noted that the consent of the interim manager was required. And with regard to the fulfillment of obligations, the Circuit court gave the following assessment: if all the claims of the creditors were repaid, they would not have opened a second insolvency case within 5 months. 

The position of the Supreme Court

The Supreme Court recognized the correctness of the final conclusion of the Circuit court, but at the same time brought other arguments. 

The main motive for the repayment of claims for the debtor was the desire of the participant to close the first bankruptcy case as soon as possible. So, in late January 2014, the interim manager filed a challenging compensation statement. The court scheduled the trial in mid-March, but already at the beginning of the month, the participant of the debtor intended to pay off all his debts. In the summer, all registered creditors were satisfied, the bankruptcy case was closed. Accordingly, there were no more reasons to challenge the compensation.

However, if all claims were satisfied (there were also current creditors and those who did not manage to be included in the register), they would not have started a second bankruptcy case.

In this regard, the Supreme Court re-qualified the second bankruptcy in the continuation of the first. And therefore, the indemnity deal was declared invalid - on the basis of paragraphs 1 and 2 of Art. 61.3 of the insolvency law.