An important place in the implementation of all bankruptcy procedures is given to the work of the meeting of creditors. A legal entity recognizing its insolvency under Federal Law No. 127-RF “On Insolvency” is obliged to notify all interested parties, and above all, potential creditors, of the decision.
By order of the court, a list of creditors is compiled - a register. The persons included in it actively participate in court hearings and have a direct impact on the speed of all bankruptcy procedures.
Meeting of creditors
After the Arbitration has accepted the bankruptcy application of a specific legal entity for consideration, they begin the first bankruptcy procedure - observation. During the observation period, the court does not take any steps aimed at interfering in the affairs of the company.
The main task of this stage is:
- determining the amount of debt, time of delay and financial capabilities of the company;
- formation of a list of creditors whose claims will be entered into the register;
- selection and appointment of an external manager.
The responsibilities of the external manager include compiling a list of creditors and setting a date for convening a meeting that is part of the bankruptcy procedure.
Before the debtor (developer) is declared bankrupt and the court of execution in the case is transferred to the bailiffs, it is the meeting of the creditors that can influence the course of the process (withdraw the claims under the claim, conclude a peace agreement with the organization).
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Regulatory legal acts regulating the meeting of creditors in the event of bankruptcy of a legal entity, description of the process of holding the meeting
The meeting of creditors of a legal entity is held in accordance with the provisions of the Federal Law of the Russian Federation No. 127-FZ “On Insolvency”, judicial practice and articles of the Civil Code of the Russian Federation. After the claim is accepted for consideration, persons who have monetary claims against a person planning to go bankrupt must enter themselves into a special register.
It is compiled by the arbitration manager. The register is formed within 1 month.
After the expiration of the established period, the document cannot be changed, which means that persons who did not have time to declare their claims cannot take part in the process.
The manager decides when the next meeting should take place; he chooses the venue and informs all interested parties.
Notification of participants, their composition, rights, procedure and form of holding the meeting. Possibility of participation by proxy
Participants in the meeting receive written notice of the time and date of the meeting. Lenders receive registered notification letters 2 weeks before the selected day. The deadline for receiving information about the meeting is 5 days before the date of its holding.
Not only lenders participate in the meeting; it can be convened by:
- participants of the legal entity;
- company employees;
- owners of the bankrupt property;
- representatives of control and authorized bodies.
Persons involved in this process are divided into voters and non-voters. The right to vote is given to persons whose claims are secured by a pledge of the debtor’s property (bankruptcy creditors) and authorized bodies.
Each person receives a number of votes equal to the value of his demand. They vote by show of hands or anonymously. The meeting may be in person or in absentia. If a citizen cannot appear, he can be replaced by a representative for whom a power of attorney must be issued.
List of issues under consideration, documentation of results, importance of quorum, is it possible to challenge decisions
At the meeting:
- consider the possibility of making changes to the course of recovery procedures or external management;
- approve documents related to the company’s rehabilitation process or external management;
- select a bankruptcy trustee;
- appoint a person in charge of the register;
- discuss the possibility of concluding a peace agreement;
- form a committee of lenders and determine its competence;
- are developing an appeal to the court demanding recognition of the debtor’s insolvency and the initiation of bankruptcy proceedings.
A protocol must be kept, and the bankrupt and the court are informed of the results of the meeting (5 days are allotted for this). The quorum of the first meeting is 50% of the total votes. Its decision can be challenged in court.
The first and subsequent meetings of creditors, what are the differences, what issues are most often considered
The meetings of creditors subsequent to the first are not much different. The only difference is the number of votes that constitute a quorum. For the second, it is enough to get 30% of the votes on a specific issue. The main condition is proper notification of all participants. In addition, at the first meeting, a permanent arbitration manager is elected, but at the second meeting, this issue is no longer raised.
Lenders consider issues that caused disagreements earlier, make decisions about the quality of the manager’s work, and work in accordance with the planned plan. The number and nature of questions depend on the specific situation.
Important! The requirements for holding a meeting are established by Decree of the Government of the Russian Federation dated February 6, 2004 No. 56.
Participation in bankruptcy proceedings
Advice from lawyers:
1. A) to participate in a bankruptcy case b) for a meeting of creditors.
1.1. The Arbitration Manager has such powers. What is the question, is it unclear?
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2. Who can help draw up a claim to the arbitration court and the Federal Antimonopoly Service to recognize the actions of the Civil Code as unlawful and appeal? It is necessary to challenge the determination of the winning bidder through a public offer. Bankruptcy case number: A 33-7027/2016 Link to the auction: https://RUS-on.ru/node/155524 It is necessary to challenge the decision of the Civil Code to recognize the winner of the participant who submitted the maximum bid and recognize the winner of the participant who submitted the first application for participation in the auction , as indicated on the ATP.
2.1. These services are paid.
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3. The situation is as follows - the organization in which I worked went bankrupt! At the moment, a criminal case has been opened for deliberate bankruptcy and loss of property! I was summoned for questioning as a witness, I went, but I’ll catch you now there will be a trial! Can I refuse to appear in court on the basis of a petition to consider the case without my participation, saying that I have answered all the questions, please consider the case without me in the future?
3.1. Good afternoon If the court summons you as a witness, you do not have the right to refuse, because Your testimony may influence the course of the case. If you fail to appear in court on a summons more than twice, the court may impose a fine on you and subject you to forced arrest (Article 168 of the Code of Civil Procedure of the Russian Federation)
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4. Is my claim subject to inclusion in the register of claims for the transfer of residential premises if the agreement for participation in shared construction was concluded after the initiation of bankruptcy proceedings against the debtor?
4.1. Hello. Your claim for transfer of residential premises is not eligible for inclusion. The only financial claims against the bankrupt are the money contributed.
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5. I do not have time to submit to the arbitration court by the deadline a response to the statement of claim for bringing to subsidiary liability, within the framework of the LLC bankruptcy case, because all the documentation was handed over to the competition agent six months ago, and he is located in another city. Is it possible to send a petition to the AC to postpone the consideration of the case without my participation?
5.1. Hello. Documents can be submitted to the arbitration court electronically. Well, you also have the right to file a petition. All the best. Thank you for choosing our site.
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6. We need advice on a case of challenging an equity participation agreement in terms of recognizing the transaction as suspicious within the framework of a developer’s bankruptcy case. City of Kaliningrad, ready to meet.
6.1. Search the website for lawyers in your city.
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6.2. There are lawyers from Kaliningrad on the site, find them through the search.
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6.3. Write and we'll meet.
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6.4. Contact us.
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6.5. It is said... seek and you will find, knock and the door will be opened to you. Contact us, we will always help.
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7. I purchased an apartment from ZAO SK RosStroy, which is a subsidiary of ZAO GK SU-155, the delivery date was supposed to be December 2020, I did not receive the apartment. I purchased the apartment under an equity participation agreement under Federal Law No. 214. You probably know from the media that the Su-155 is on the verge of bankruptcy. On March 15, a trial in the bankruptcy case of SU-155 will take place. I think there is no point in returning the money through the courts; I would like to get my legal living space. Question: What are my first actions until SU-155 is declared bankrupt?
7.1. 1. You did not purchase the apartment. You have entered into a share participation agreement. 2. SU-155 has nothing to do with it. You have entered into an agreement with another organization and your actions depend on the situation with it. Arbitration/financial manager Vitaly Snytko.
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8. A citizen submitted an application to participate in bidding for the sale of the property of a bankrupt debtor (as part of a bankruptcy case), the application was rejected. Is it legal for a citizen to appeal to a court of general jurisdiction with demands: to be recognized as a bidder, to be recognized as a bid winner, to be obliged to conclude a purchase and sale agreement. My opinion is that the arbitration court has jurisdiction, but I cannot find clear justifications.
8.1. If the citizen is an individual, then this is the jurisdiction of a court of general jurisdiction.
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9. You need a power of attorney to participate in a meeting of creditors (SPK bankruptcy case). Can it be collective - several people trust one? You need to go to a meeting in another city, we can’t ensure a quorum, because people don’t want to spend extra money on this futile business...
9.1. Hello, Elena! Yes, a power of attorney can be issued jointly by several persons
(Part 6 of Article 185 of the Civil Code of the Russian Federation).
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10. Who bears the costs of notifying the bankruptcy trustee of the organization’s bankruptcy of persons newly included in the register who entered into the case or were involved in the case later than 30 calendar days from the date of publication of the bankruptcy decision. What law (Article No.?) establishes the procedure and amount of payment? What is the correct name for a document sent to the court guaranteeing payment of these expenses of the manager?
10.1. The bankruptcy trustee of the post office sends to the legal entity a notice of repayment of the amount of postal expenses indicating the details for transferring the money. A representative of the legal entity attaches a copy of the payment receipt (the original for review by the court) to the case materials when the court considers the request for inclusion in the register of creditors.
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11. Who bears the costs of notifying the bankruptcy trustee of the organization’s bankruptcy of persons newly included in the register who entered into the case or were involved in the case later than 30 calendar days from the date of publication of the bankruptcy decision.
11.1. The costs are borne by the person who requests inclusion in the register.
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11.2. Competition manager. Subsequently, postage costs are collected from the legal entity that will be included in the register.
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11.3. The answers are incorrect. Expenses are carried out at the expense of the debtor or the administrator; subsequent attribution to the debtor (when funds appear in the bankruptcy estate) or to the applicant. Arbitration manager Vitaly Snytko.
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12. In September 2014, I entered into an agreement on shared participation in construction. Now I learn from the media that the developer is at the stage of observing bankruptcy. Construction of the house continues. How can I find out from the developer about the real state of affairs? What to do if the developer goes bankrupt? Thank you. Natalya, Perm region.
12.1. You need to submit an application to the arbitration court to include the requirements in the register of requirements for the transfer of residential premises. For all information, see the Arbitration Court database and the FSB website. Arbitration manager Vitaly Snytko.
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13. Is it necessary to indicate in the power of attorney the representative’s authority to participate in bankruptcy cases when filing an application for inclusion in the register of creditors’ claims through a representative?
13.1. Yes. This is a legal requirement. Article 36. Representation in a bankruptcy case 1. Representatives of citizens, including individual entrepreneurs, and organizations that are persons participating in a bankruptcy case, or persons participating in the arbitration process in a bankruptcy case, can be any legally capable citizens who have duly formalized powers to conduct bankruptcy proceedings.
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14. What kind of power of attorney is needed to conduct bankruptcy cases? On the creditor's side. I read that everything needs to be written down there, inclusion in the register, participation in the meeting, and voting,
14.1. Yes, you understood correctly. It is necessary to indicate the authority to participate in the bankruptcy case of the debtor with the rights of a creditor, including... and in the course of what the creditor wants to entrust to the representative.
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15. Where and how to find an SRO, Financial Manager. In a bankruptcy case. If there are several banks and loans totaling two million, can they be combined into one production? And is it possible to act now, because some of them have already been tried. If the trials took place without my participation, are there certain deadlines for appealing? And in general, if I decide to declare myself bankrupt, is it worth appealing the court decisions?
15.1. Hello. The law has not yet entered into force.
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16. Is it possible to consider a bankruptcy case of an enterprise without the participation of a representative of the creditor?
16.1. Hello! Maybe.
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16.2. Hello. In principle, this is possible.
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16.3. Of course available.
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17. Does the bankruptcy trustee of the company (1) have the right to issue a power of attorney to the former director of the company to participate in a meeting of creditors in the bankruptcy case of another company (2) in which the company (1) is included in the register of creditors.
17.1. A power of attorney can be issued (Article 185 of the Civil Code of the Russian Federation)
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18. In a general power of attorney, is it necessary to highlight participation in a bankruptcy case as a separate clause, or is participation in Arbitration Courts sufficient?
18.1. It needs to be highlighted as a separate item. Article 36. Representation in a bankruptcy case (Federal Law “On Insolvency (Bankruptcy)”) ... 4. The powers of other representatives to conduct a bankruptcy case in an arbitration court must be expressed in a power of attorney issued and executed in accordance with the federal “law”, and in cases provided for by an international treaty of the Russian Federation or federal law, in another document.
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19. My application for participation in a public auction was rejected with unreasonable wording. I want to appeal this decision to the Arbitration Court leading this bankruptcy case, since I should have been recognized as the winner.
19.1. Claims cannot be filed in court via the Internet. Only through expedition or by mail!
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19.2. Go to the website of the Supreme Arbitration Court in the Electronic Justice section (https://my.arbitr.ru/#index), then in the Applications and Complaints section. And fill out the electronic form.
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19.3. That's right S.E. commented. Go through registration and scan and forward each document that needs to be submitted to the court. It’s a tedious matter, that is, if a lot of time is spent, but you quickly send it to court.
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20. An application was filed with the court regarding illegal deduction from wages. The defendant, a federal state unitary enterprise, does not appear at the preliminary meeting; bankruptcy administration was introduced in connection with the bankruptcy of the enterprise. How is it possible to consider a case in which there are salary calculations for two years without the participation of the defendant?
20.1. The court will issue a judgment in absentia if the defendant fails to appear in court.
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Cases when creditors' meetings may be invalidated
The meeting is declared invalid:
- in case of violation of the rights and legitimate interests of its participants;
- if the requirements of the law regarding its composition and implementation process are not observed (participants are not notified, the issue under consideration is beyond the jurisdiction of those present).
As a result, only a court can declare a meeting and the decisions made at it invalid upon the application of an interested person. This cannot be a creditor who is not included in the register, but a representative of the authorized bodies or an arbitration manager has the right to insist on invalidity. The reason stated in the complaint must be serious. The court's decision to declare the meeting invalid can be appealed within 2 weeks.
