24 Dec 2007
24 Dec 2007
Debts were cleared through a vehicle
An interesting topic worthy of separate discussion in my opinion...
Since the ZoB requires the presentation of a writ of execution to the PSP and a copy to the debtor in order to submit an application for a PDB, an arbitration court (TC) can help speed up its receipt.
In addition, given that the rights to the real estate of a bankrupt debtor are usually not formalized, these rights have to be established in court, and here the TS also helped speed up the process in the absence of a dispute over the objects.
How else can you use a vehicle in bankruptcy?
24 Dec 2007
How did you register real estate through a vehicle during bankruptcy? There, two guards must sign the arbitration agreement? Who signed, besides the debtor? The buyer?
I would like an example of the technology. In theory, we are preparing such a feature, but I have not seen it in practice.
I, quite by chance, am the chairman of the arbitration court
Here, look: http://inform-ust.ru/rewinia/svid1.htm convincing?
Here is the text of the decision: http://inform-ust.ru/rewinia/tr5.htm
Here's more: http://inform-ust.ru/rewinia/resh_tr_sud1.htm
But it’s not a fact that it will pass. It didn’t work everywhere for us. And now I have explained to YOU that it is impossible. But, for example, at this particular moment, we have just one such case under consideration. We'll try, but that's next year.
24 Dec 2007
But it’s not a fact that it will pass. It didn’t work everywhere for us. And now I have explained to YOU that it is impossible. But, for example, at this particular moment, we have just one such case under consideration. We'll try, but that's next year.
Oh damn, I wrote the same thing as Denis above:wub:
Denis What cases does your TC consider? It would be interesting to know the structure of cases, how many cases were considered. And how has it changed over the past 3-4 years...
24 Dec 2007
29 Jan 2008
Well, read it if you have the patience: smile
Part 1:
ARBITRATION COURT
at the Closed Joint Stock Company "Inform-yust"
600000, Vladimir, st. Knyagininskaya 7, 4th floor.
SOLUTION
City of Vladimir Case No. 02-11/2007
Arbitration Court at the Closed Joint Stock Company "Inform-yust" consisting of:
Arbitrator: Lobanenko Denis Borisovich,
acting on the basis of Order No. 02/11-07 dated November 26, 2007 in accordance with paragraph 1 of Article 3.3 of the Regulations “On the Permanent Arbitration Court at CJSC Inform-Yust”, having considered jointly in one court session
Claim of individual entrepreneur Roman Nikolaevich Morgunov (passport of a citizen of the Russian Federation, series 17 02 No. 751750, issued on September 10, 2002 by the Department of Internal Affairs of the Vyazniki district of the Vladimir region, place of birth: Izhevsk, date of birth: 05.25.1978, address: 601421, Vladimir region, Vyaznikovsky district, village. Luknovo, st. Fabrichnaya, 27, apt. 5, registration certificate series 33 No. 000771508, issued by the Interdistrict Inspectorate of the Ministry of the Russian Federation for Taxes and Duties No. 8 for the Vladimir Region on September 08, 2004) to the Limited Liability Company Trading House "VlaMos" (OGRN 1033301805481, address: Vladimir , Tumskaya Liniya St., 3 km.) on forcing the defendant to transfer real estate (gas station) and its accessories to the plaintiff and perform all actions related to the state registration of property rights of the individual entrepreneur R.N. Morgunov. in the Office of the Federal Registration Service of the Russian Federation for the Vladimir Region for this real estate under the Real Estate Purchase and Sale Agreement dated October 25, 2006,
And the counterclaim of the Limited Liability Company Trading House "VlaMos" (OGRN 1033301805481, address: Vladimir, Tumskaya Line St., 3 km.) to the individual entrepreneur Roman Nikolaevich Morgunov (passport of the citizen of the Russian Federation series 17 02 No. 751750, issued 10.09 .2002 Department of Internal Affairs of the Vyazniki district of the Vladimir region, place of birth: Izhevsk, date of birth: 05/25/1978, address: 601421, Vladimir region, Vyaznikovsky district, Luknovo village, Fabrichnaya st., 27, apt. 5, registration certificate series 33 No. 000771508, issued by the Interdistrict Inspectorate of the Ministry of the Russian Federation for Taxes and Duties No. 8 for the Vladimir Region on September 8, 2004) on invalidating the real estate purchase and sale agreement dated October 25, 2006.
When participating in an arbitration court meeting:
Morgunov Roman Nikolaevich, passport of a citizen of the Russian Federation series 17 02 No. 751750, issued on September 10, 2002 by the Department of Internal Affairs of the Vyazniki district of the Vladimir region;
representative of the Limited Liability Company Trading House "VlaMos" Zolin Vladislav Yurievich, passport of a citizen of the Russian Federation series 17 05 No. 625957, issued 10/17/2005. Department of Internal Affairs of the Oktyabrsky district of Vladimir, power of attorney No. 1 dated August 12, 2007, valid until December 31, 2008.
Individual entrepreneur Morgunov Roman Nikolaevich (hereinafter in the text of the decision - IP Morgunov) filed a claim with the permanent arbitration court at the Closed Joint Stock Company "Inform-Yust" against the Limited Liability Company Trading House "VlaMos" (hereinafter in the text of the decision - LLC TD VlaMos ) to compel the defendant to transfer real estate (gas station) and its accessories to the plaintiff and perform all necessary actions related to the state registration of ownership rights of IP Morgunov in the Office of the Federal Registration Service of the Russian Federation for the Vladimir Region for this real estate on the basis of a real estate purchase and sale agreement property dated 10/25/2006. At the arbitration court hearing, IP Morgunov supported the claim and explained that TD VlaMos LLC is groundlessly evading the transfer of property under the real estate purchase and sale agreement dated 10/25/2006 and state registration of the transfer of ownership of it, TD VlaMos LLC asked to refuse the counterclaim.
LLC TD VlaMos filed a counterclaim against IP Morgunov to declare the Real Estate Purchase and Sale Agreement dated October 25, 2006 invalid, since encumbrances and restrictions were imposed on the real estate; currently, a monitoring procedure and transfer of ownership have been introduced in relation to LLC TD VlaMos to a gas station must be accompanied by the written consent of the temporary manager, and also since the disputed agreement is a major transaction for LLC TD VlaMos, which has not received the approval of the company’s participants. The representative of TD VlaMos LLC V.Yu. Zolin at the arbitration court meeting asked to satisfy the counterclaim, and to refuse the claim of IP Morgunov.
Clause 7.1. The real estate purchase and sale agreement dated October 25, 2006 contains an arbitration clause on the transfer of all disputes and disagreements arising from the agreement to the permanent arbitration court at Inform-Yust CJSC. The dispute is referred to the sole consideration of an arbitrator appointed to consider the dispute at the discretion of the chairman of the arbitration tribunal. According to the arbitration clause, the parties are familiar with the rules of the permanent arbitration court at Inform-Yust CJSC. The decision of the arbitration tribunal, by agreement of the parties, is final and cannot be appealed.
In connection with the above circumstances, as well as in accordance with Articles 1, 5, 17 Federal Law“On arbitration courts in the Russian Federation”, the arbitration court is competent to consider the dispute between the parties in the present case on the merits.
The arbitration court found:
As follows from the case materials, in accordance with the Real Estate Purchase and Sale Agreement dated October 25, 2006, Individual Entrepreneur Morgunov acquired a gas station (gas station) from TD VlaMos LLC; purpose: service; area 55 sq.m., inventory number: 06, letter: A; cadastral (conditional) number: 33:12:120101:06, located at the address: Vladimir region, Sobinsky district, 147 km on the left. Volga-1 highway (including accessories: on-site wastewater network, canopy, toilet (2 pcs.), tanks, metal fences, tank for fuels and lubricants 25 cubic meters, information board "TNK", power line 10 kV ., security and fire alarm system, TRK-nara-27 M1EN, gas station control cabinet, fireman's panel).
At the time of the conclusion of the Real Estate Purchase and Sale Agreement dated October 25, 2006 in relation to the disputed property in accordance with clause 1.5. agreement, a mortgage agreement was registered in favor of OJSC CB Kredittrust. Since according to clause 1.5. of the purchase and sale agreement, the mortgage obligation is terminated at the time of conclusion of the agreement, the seller guarantees that the registration entry regarding the specified restriction will be removed within one year from the date of conclusion of this agreement (i.e. until October 26, 2007). Clause 2.1.2. The real estate purchase and sale agreement dated October 25, 2006 also provides for the obligation of the seller - LLC TD VlaMos - to take all necessary measures to remove the restriction (encumbrance) on the right of ownership of real estate within one year from the date of conclusion of the agreement.
According to clause 2.1.1. Of the agreement, the seller is obliged to transfer the property to the buyer within 5 (five) days after the registration of the mortgage is removed, in accordance with clause 2.1.3. Agreements – to ensure state registration of the transfer of ownership of real estate.
Sailors have questions
29 Jan 2008
Part 2:
In accordance with clause 1.6. To the agreement, the parties agreed that in the event of any new restrictions (encumbrances) being established, or any previously identified established restrictions(encumbrances) for the execution of this agreement (for registration of the transfer of ownership of real estate to the Buyer), the transaction is considered completed under a suspensive condition. The emergence of the rights and obligations of the parties under the contract depends on the lifting of these restrictions (encumbrances).
The case materials at the time of the arbitration proceedings include a certificate from the Federal Registration Service dated December 11, 2007, according to which, as of that date, no restrictions (encumbrances) were registered in relation to the object of sale. The parties did not submit evidence of other restrictions or encumbrances in the case. According to the above certificate and explanations of the representative of TD VlaMos LLC, the disputed property was not transferred to any third parties, and is in the ownership and possession of TD VlaMos LLC. In addition, the mortgagee in whose favor the rights to the disputed property are encumbered - OJSC CB Kredittrust, according to the extract from the Unified State Register of Legal Entities dated November 15, 2007 submitted to the case, was liquidated by a court decision on January 30, 2007.
In accordance with Article 309 of the Civil Code of the Russian Federation, obligations must be fulfilled properly in accordance with the terms of the obligation and the requirements of the law, other legal acts, and in the absence of such conditions and requirements - in accordance with business customs or other usually imposed requirements. By virtue of Article 310 of the Civil Code of the Russian Federation, unilateral refusal to fulfill an obligation and unilateral change of its conditions are not allowed, except in cases provided for by law.
In accordance with paragraph 1 of Article 456 of the Civil Code of the Russian Federation, the seller is obliged to transfer to the buyer the goods provided for in the sales contract. By virtue of paragraph 1 of Article 457 of the Civil Code of the Russian Federation, the period for fulfillment by the seller of the obligation to transfer the goods to the buyer is determined by the sales contract, and if the contract does not allow this period to be determined, in accordance with the rules provided for in Article 314 of this Code.
In accordance with paragraph 1 of Article 556 of the Civil Code of the Russian Federation, the transfer of real estate by the seller and its acceptance by the buyer are carried out according to a transfer deed or other transfer document signed by the parties. Unless otherwise provided by law or contract, the seller’s obligation to transfer real estate to the buyer is considered fulfilled after the delivery of this property to the buyer and the signing of the relevant transfer document by the parties. Failure of one of the parties to sign a document on the transfer of real estate on the terms stipulated by the contract is considered a refusal, respectively, of the seller of the obligation to transfer the property, and of the buyer - of the obligation to accept the property.
Based on the provisions of paragraph 2 of Article 463 of the Civil Code of the Russian Federation, if the seller refuses to transfer an individually defined item, the buyer has the right to present to the seller the requirements provided for in Article 398 of this Code. According to the provisions of Article 398 of the Civil Code of the Russian Federation, in the event of failure to fulfill the obligation to transfer an individually defined thing into ownership, economic management, operational management or paid use to the creditor, the latter has the right to demand that this thing be taken away from the debtor and transferred to the creditor on the terms stipulated by the obligation.
Individual Entrepreneur Morgunov, in letters dated 07/03/2007 and 10/29/2007, addressed TD VlaMos LLC with a request to deliver the property under the Real Estate Purchase and Sale Agreement dated 10/25/2006 and to proceed with state registration of the transfer of ownership of it. TD VlaMos LLC did not respond to the letters and did not fulfill the requirements voluntarily.
According to paragraph 1 of Article 551 of the Civil Code of the Russian Federation, the transfer of ownership of real estate under a real estate purchase and sale agreement to the buyer is subject to state registration. Paragraph 3 of this article establishes that if one of the parties evades state registration of the transfer of ownership of real estate, the court has the right, at the request of the other party, to make a decision on state registration of the transfer of ownership.
By the ruling of the Arbitration Court of the Vladimir Region dated September 10, 2007, insolvency (bankruptcy) proceedings were initiated for TD VlaMos LLC, a monitoring procedure was introduced in relation to the debtor, S.P. Zhumaev was appointed temporary manager (case No. A11-4304/2007-K1 -11B). According to paragraph 1 of Article 63 of the Federal Law “On Insolvency (Bankruptcy)”, from the date of the arbitration court’s ruling on the introduction of surveillance, arrests on the debtor’s property and other restrictions regarding the disposal of the debtor’s property are lifted. Consequently, the arguments of TD VlaMos LLC about the presence of encumbrances and restrictions in relation to the disputed real estate cannot be accepted by the arbitration court. Moreover, the case file contains the decision of the Arbitration Court in case No. A40-4286/06-78-13 dated 05/03/2006, which confirms the repayment of claims on the basis of which encumbrances (restrictions) were established or could be established in relation to the gas station.
In the counterclaim, TD VlaMos LLC points out the inconsistency of the transfer of real estate to IP Morgunov with the current legislation as violating the requirements of Article 64 of the Federal Law “On Insolvency (Bankruptcy)”, since the transfer and application for registration of the transfer of ownership of a gas station after the introduction of a monitoring procedure in relation to LLC TD VlaMos must be accompanied by the written consent of the temporary manager. The temporary manager did not express his consent either in writing or in any other form.
In accordance with paragraph 2 of Article 64 of the Federal Law “On Insolvency (Bankruptcy)”, the management bodies of the debtor can carry out transactions or several interrelated transactions exclusively with the consent of the temporary manager, expressed in writing, except for the cases expressly provided for by this Federal Law. related to the acquisition, alienation or possibility of alienation, directly or indirectly, of the debtor’s property, the book value of which is more than five percent of the book value of the debtor’s assets as of the date of introduction of supervision.
The arbitration court on the basis of paragraph 1 of Article 2 of the Federal Law “On State Registration”, taking into account paragraph 14 of the resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation “On some issues of the practice of resolving disputes related to the protection of property rights and other property rights” No. 8 of 02.25.1998 found untenable the arguments of TD VlaMos LLC regarding violation of Article 64 of the Federal Law “On Insolvency (Bankruptcy)”, since the transaction on the basis of which Individual Entrepreneur Morgunov filed a claim was completed more than six months before the initiation of the insolvency (bankruptcy) case of LLC by the Arbitration Court of the Vladimir Region TD VlaMos.
The arbitration court agreed with the conclusions of IP Morgunov that, according to Articles 550, 551 of the Civil Code of the Russian Federation, a real estate purchase and sale agreement is considered concluded from the moment it is signed by the parties and in in this case The application of the seller and buyer to the registration authority to register the transfer of ownership is not a continuation of the transaction for the alienation of property, but is the fulfillment of the obligations established by law for the state registration of the transfer of ownership of real estate that arose in connection with the execution of the purchase and sale transaction itself as such .
Paragraph 2 of Article 64 of the Federal Law “On Insolvency (Bankruptcy)” establishes the procedure for making transactions with the debtor’s property for the debtor’s management bodies during the observation period, during which, without the written consent of the temporary manager, the debtor’s management bodies do not have the right to carry out transactions for the alienation of property. The purchase and sale transaction, which serves as the basis for state registration of the transfer of ownership of the gas station from LLC TD VlaMos to IP Morgunov, was completed before the initiation of insolvency (bankruptcy) proceedings of LLC TD VlaMos. The validity of the transaction was not disputed by anyone, and no relevant evidence was presented to the court. The current legislation does not provide for the written consent of the temporary manager for state registration of the transfer of ownership of real estate under a transaction completed before the initiation of insolvency (bankruptcy) proceedings of the debtor.
Based on Art. 46 of the Federal Law “On Limited Liability Companies”, a major transaction is one related to the alienation or the possibility of alienation by the company, directly or indirectly, of property, the value of which is more than twenty-five percent of the value of the company’s property, determined on the basis of financial statements for the last reporting period preceding the day making a decision to carry out such transactions, unless the company's charter provides for a larger size of a major transaction. In this case, the value of the property alienated by the company as a result of a major transaction is determined on the basis of its accounting data, and the value of the property acquired by the company is determined on the basis of the offer price.
29 Jan 2008
part 3:
Thus, taking into account clause 3 of the Information Letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated March 13, 2001 N 62, from the provisions of the above norms it follows that when determining the size of a transaction for the alienation of property, the book value of the alienated property is compared with the book value of the company’s assets.
Having examined the balance sheet of LLC TD VlaMos presented in the case materials for the last reporting period preceding the day the decision was made to carry out the disputed transaction, the arbitration court found that the value of the company’s property, defined as the sum of the company’s assets (non-current and current assets), amounted to more than 50,000,000 rub., thus, the transaction for the alienation of a gas station to IP Morgunov is less than 5% of the value of the defendant’s property and is not large. Accordingly, in accordance with the charter of TD VlaMos LLC and the Federal Law “On Limited Liability Companies,” the general meeting of participants of TD VlaMos LLC was not required to make or approve this transaction.
Thus, the counterclaim of TD VlaMos LLC against IP Morgunov for invalidation of the Sale and Purchase Agreement cannot be recognized by the arbitration court as justified. At the same time, the case materials confirm the unjustified evasion of TD VlaMos LLC from fulfilling the obligations stipulated by the Real Estate Purchase and Sale Agreement dated October 25, 2006.
Based on the foregoing, having examined the case materials, having listened to the arguments of the parties, the permanent arbitration court at Inform-Yust CJSC finds grounds for satisfying the claim of IP Morgunov and grounds for refusing to satisfy the counterclaim.
In accordance with clause 5.1. Regulations on arbitration fees and expenses of the parties in the arbitration court at ZAO Inform-Yust dated November 21, 2005, the arbitration fees are borne by the defendant.
Guided by Articles 11, 12, 166, 309, 310, 314, 398, 456, 457, 463, 550, 551, 556 of the Civil Code of the Russian Federation, Articles 63, 64 of the Federal Law “On Bankruptcy (Insolvency)”, Article 46 of the Federal Law “On Limited Liability Companies”, Articles 5, 6, 15, 16, 31-33 of the Federal Law “On Arbitration Courts in Russian Federation", Articles 1.3, 1.4, 1.5, 2.1, 3.3, 4.1, 6.2, 6.3 of the Regulations "On the Permanent Arbitration Court at ZAO Inform-Yust", clause 5.1. Regulations on arbitration fees and expenses of the parties in the arbitration court at ZAO Inform-Yust, arbitration court
1. Oblige the limited liability company Trading House “VlaMos” to transfer the gas station (gas station) to the individual entrepreneur Roman Nikolaevich Morgunov within five days from the date of the arbitration court’s decision; purpose: service; area 55 sq.m., inventory number: 06, letter: A; cadastral (conditional) number: 33:12:120101:06, located at the address: Vladimir region, Sobinsky district, 147 km on the left. highway "Volga-1" (including accessories: on-site wastewater network, canopy, toilet (2 pcs.), tanks, metal fences, tank for fuels and lubricants 25 cubic meters, information board "TNK", power line 10 sq.m. , security and fire alarm system, TRK-nara-27 M1EN, gas station control cabinet, fireman's panel).
2. Oblige the limited liability company Trading House “VlaMos” to carry out all necessary actions for state registration of the transfer of ownership of the gas station (gas station) within five days from the date of the arbitration tribunal’s decision; purpose: service; area 55 sq.m., inventory number: 06, letter: A; cadastral (conditional) number: 33:12:120101:06, located at the address: Vladimir region, Sobinsky district, 147 km on the left. highway "Volga-1" to individual entrepreneur Roman Nikolaevich Morgunov under the Real Estate Purchase and Sale Agreement dated October 25, 2006.
3. Refuse to satisfy the claim of the Limited Liability Company Trading House "VlaMos" for recognition of the Real Estate Purchase and Sale Agreement dated October 25, 2006. But you won’t believe it, but not at all. Even the arbitration fee, the payment of which was deferred, was delayed ...
It was just nice to do this business, having an opinion inside like... “But no one has ever done this in Russia! This is my opinion!, This is according to the law! Who will prove that I’m wrong!!!”... Like this I'm euphoric... damn... Let's see what happens next
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- list of arbitration court decisions;
- a list of cases in whose materials a match was found for the entered query.
Additionally:
For a more convenient search, the section has a filter based on the date of registration of the case, which allows you to specify the search results.