“The bankrupt creditor is included in the register. When courts subordinate such a requirement” — article by Arltan Tserenov for “Arbitration Practice for Lawyers”
The article deals with the practice of subordination of claims of creditors affiliated with the debtor, who themselves are at the stage of bankruptcy. Courts resolve such disputes in different ways, and if there is a Deposit Insurance Agency in the case, they refuse to lower the requirements.
In the review on subordination of claims, the Supreme Court did not resolve the question of what to do with the claims of affiliated persons who are claimed by their bankruptcy managers (Review of judicial practice in resolving disputes related to the establishment of claims of controlling debtor and affiliated persons in bankruptcy proceedings, approved by the By the Presidium of the Supreme Court on 29.01.2020; hereinafter — the Review of subordination). Below is an analysis of judicial practice on this issue.
The practice of lowering the claims of affiliated bankrupt creditors
Some courts lower the claims of affiliated insolvent creditors, despite the fact that the claimant is a bankruptcy trustee who wants to protect independent creditors and replenish the bankruptcy estate.
Courts justify decisions with such arguments.
1. The subsequent change in the composition of the persons controlling the creditor and its bankruptcy do not affect the assessment of the presence (absence) of signs of affiliation of the debtor and the creditor at the date of the transaction in order to determine the order of satisfaction of the latter's claims [1].
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1 resolutions
AS of 20.12.2021 in case no. A56-119853/2018,
AS MO of 03.06.2021 in case no. A41-108811/2017