Article 47. The debtor’s response to the application for declaring the debtor bankrupt. 1. The debtor, within ten days from the date of receipt of the determination to accept the creditor’s application or the application of the authorized body

What is a response to a bankruptcy petition - a concept in law

Bankruptcy cases are regulated at the level of Federal legislation, namely the Federal Law “On Insolvency”. This law, as well as the Administrative Procedure Code, clearly defines the necessary terminology and all the nuances of office work.

A response to a bankruptcy petition is a document that can be filed by a debtor in response to a creditor’s claim. The court must consider the submitted paper and, if, after the evidence and explanations provided, there is not enough evidence to prove that the entity is declared bankrupt, then the petition of the lending party is rejected.

When and why is it compiled?

The right to file a response to bankruptcy was transferred to the entity so that he could take part in the dispute and protect his business. The creditor does not always conscientiously use his opportunity to declare the debtor bankrupt.

Sometimes this method is used to get rid of a competitor, because after completing the bankruptcy procedure, a citizen will not be able to engage in entrepreneurial and managerial activities for 5 years.

Who can submit a review

The right to submit a review has the right to an individual, an individual entrepreneur, a manager or representative of a legal entity, as well as a lawyer of any of the above entities, or a legal representative by power of attorney.

Features and deadlines for submission

The legislation gives the debtor 10 days to submit a response to the arbitration court. Along with this paper, all evidence and documents confirming the written facts are handed over to the judge.

The review submission process consists of several stages:

It all starts with a statement from the creditor, which he submits to arbitration.
The court notifies the debtor and allocates time for him to draw up and file an objection.
A review is being written, documents are being collected.
The documents are submitted to arbitration.
The court reviews the received papers within a reasonable time and renders its verdict.

On termination of proceedings on a complaint against the actions of the bankruptcy trustee

FIRST CAPITAL LEGAL CENTER Moscow, Georgievsky lane, 1, building 1, 2nd floor ; (495) 649-11-65

SIXTH ARBITRATION COURT OF APPEALS DECISION dated July 16, 2013 N 06AP-3292/2013

The operative part of the resolution was announced on July 09, 2013. The full text of the resolution was made on July 16, 2013. The Sixth Arbitration Court of Appeal with participation in the meeting: from the Federal Tax Service: A. V. Rodichev, representative by power of attorney dated 02/08/2013 N 27 AA 0464120; from the Office of the Federal Service for State Registration, Cadastre and Cartography for the Khabarovsk Territory: Toropov K. Yu., representative by power of attorney dated 01/09/2013 N 3; from the arbitration manager of the limited liability company "Dalolovo" Andrey Dmitrievich Staroverov: O.N. Panacheva, representative by power of attorney dated October 10, 2011, b/n; having considered at the court hearing the appeal of the Federal Tax Service against the ruling dated May 13, 2013 in case No. A73-4035/2009 of the Arbitration Court of the Khabarovsk Territory, accepted by the judge on the application of the Federal Tax Service for improper performance of duties by the bankruptcy trustee Andrey Dmitrievich Staroverov; on recognizing as illegal and unjustified the expenses incurred by the bankruptcy trustee within the framework of the insolvency (bankruptcy) case of the limited liability company "Dalolovo"

Installed:

The Federal Tax Service (hereinafter referred to as the Federal Tax Service of Russia), in the framework of the case of insolvency (bankruptcy) of the limited liability company "Dalolovo", appealed to the Arbitration Court of the Khabarovsk Territory with a statement in which it requests recognition (taking into account the clarifications adopted by the court in accordance with Article 49 of the Arbitration Procedural Code of the Russian Federation, hereinafter - the Arbitration Procedure Code of the Russian Federation): 1) inappropriate, violating the rights and legitimate interests of the authorized body to obtain information about the costs of bankruptcy proceedings, the actions of the bankruptcy trustee A.D. Staroverov, expressed in the failure to provide and incomplete indication in the reports of the bankruptcy trustee of information on the amount of expenses bankruptcy proceedings, as well as documents supporting them; 2) illegal and unjustified expenses made by the bankruptcy trustee A.D. Staroverov, in the total amount of 1,925,852 rubles. 54 kopecks, of which: - for payment of legal expenses in the amount of 30,000 rubles. (payment order No. 9 dated January 25, 2013); - to the account of ORK OJSC under agreement b/n dated 07/01/2011 to persons involved to ensure the safety of property in the amount of 1,200,000 rubles. (payment order No. 11 dated 02/08/2013); - to pay expenses to the bankruptcy trustee for hiring, under the agreement b/n dated 02/05/2012, a specialist responsible for submitting documents to the state archive in the amount of 30,000 rubles. (payment order No. 9 dated 02/08/2013); - to the account of ORK OJSC for persons working under employment contracts in the amount of 350,000 rubles. (payment order No. 12 dated 02/08/2013); — for services rendered to LLC “Otsenka-Partner” in the amount of 300,000 rubles. (payment order No. 7 dated 02/01/2013); — to pay remuneration to the bankruptcy trustee in the amount of 10,852.54 rubles. 3) illegal and unjustified expenses incurred by the bankruptcy trustee of Daliolovo LLC A.D. Staroverov in excess of the limit for payment to attracted specialists, in the total amount of 1,605,000 rubles. By a ruling dated May 13, 2013, the proceedings at the request of the Federal Tax Service of Russia were terminated due to the entry into the Unified State Register of Legal Entities (hereinafter referred to as the Unified State Register of Legal Entities) of the liquidation of the debtor due to the completion of bankruptcy proceedings.

Having disagreed with the judicial act adopted in the case, the Federal Tax Service of Russia appealed to the appellate court with a complaint, in which it asks to cancel it and consider the application on the merits, satisfying the stated requirements. According to the applicant, the court incorrectly applied the rules of substantive and procedural law.

The representative of the authorized body at the court hearing insisted on the arguments of the presented complaint and asked to cancel the contested ruling. The representative of the arbitration manager objected to the arguments of the complaint, asked to dismiss the complaint, and leave the court's ruling unchanged, as legal and justified. A representative of the Rosreestr Office for the Khabarovsk Territory expressed the position that the dispute should be resolved at the discretion of the court. Other persons participating in the debtor's bankruptcy case, duly notified of the time and place of the trial, did not take part in it. Having heard representatives of the persons participating in the case and examined the case materials, the arbitration court of appeal established the following circumstances. The Federal Tax Service of Russia appealed to the Arbitration Court of the Khabarovsk Territory with an application to declare the limited liability company Daliolovo (hereinafter referred to as Daliolovo LLC, debtor) insolvent (bankrupt). By decision of January 11, 2012, Daliolovo LLC was declared insolvent (bankrupt), and bankruptcy proceedings were opened against the debtor. Andrey Dmitrievich Staroverov was appointed acting bankruptcy trustee.

By determination dated April 24, 2012, Andrey Dmitrievich Staroverov was approved as the bankruptcy manager of Dalolovo LLC. On February 25, 2013, the Federal Tax Service of Russia, in accordance with Article 60 of the Federal Law of October 26, 2002 N 127-FZ “On Insolvency (Bankruptcy)” (hereinafter referred to as the Bankruptcy Law), appealed to the arbitration court with a statement about the improper performance by A. D. Staroverov of the duties of a bankruptcy trustee , and recognition of expenses incurred by the bankruptcy trustee as part of the bankruptcy procedure as illegal and unreasonable. By a court ruling dated 03/06/2013, the application of the authorized body was accepted for proceedings, the case was scheduled for consideration on 04/08/2013. By a court ruling dated April 8, 2013, the trial was postponed until April 25, 2013. Also, a break was announced in the court hearing until 05/07/2013. Meanwhile, by a ruling dated February 28, 2013, bankruptcy proceedings against the debtor were completed. On 04/15/2013, on this basis, an entry was made about the liquidation of Daliolovo LLC in the Unified State Register of Legal Entities (certificate series 27 N 002194903 dated 04/15/2013), in connection with which, the representative of the arbitration manager A.D. Staroverov filed a petition at the court hearing on 05/07/2013 on the termination of the bankruptcy proceedings of the debtor, which was satisfied by the court. By ruling dated May 13, 2013, the proceedings at the request of the Federal Tax Service of Russia were terminated.

Having reconsidered the case based on the evidence available in it, the Sixth Arbitration Court of Appeal did not see any grounds for canceling the court’s ruling and satisfying the appeal due to the following. Paragraph 3 of Article 149 of the Bankruptcy Law provides that the ruling of the arbitration court on the completion of bankruptcy proceedings is the basis for making an entry in the Unified State Register of Legal Entities about the liquidation of the debtor. By virtue of paragraph 8 of Article 63 of the Civil Code of the Russian Federation (hereinafter referred to as the Civil Code of the Russian Federation), the liquidation of a legal entity is considered completed, and the legal entity is considered to have ceased to exist after making an entry to this effect in the Unified State Register of Legal Entities. Civil legislation does not provide for the possibility of restoring liquidated legal entities. In accordance with paragraph 1 of Article 61 of the Civil Code of the Russian Federation, the liquidation of a legal entity entails its termination without the transfer of rights and obligations by way of succession to other persons. At the moment of completion of the liquidation of a legal entity, its legal capacity is terminated (clause 3 of Article 49 of the Civil Code of the Russian Federation). At the same time, in accordance with paragraph 5 of part 1 of Article 150 of the Arbitration Procedure Code of the Russian Federation, the arbitration court terminates proceedings in the case if it determines that the organization that is a party to the case has been liquidated.

In paragraph 48 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated December 15, 2004 N 29 “On some issues of the practice of applying the Federal Law “On Insolvency (Bankruptcy)” it is explained that the arbitration court considers disagreements, statements, petitions and complaints in a bankruptcy case before filing records of the liquidation of the debtor in the Unified State Register of Legal Entities. From the moment an entry about the liquidation of the debtor is made in the Unified State Register of Legal Entities, on the basis of evidence about the liquidation of the debtor received from the bankruptcy trustee or registration authority, the arbitration court issues a ruling to terminate proceedings to consider all disagreements, statements, petitions and complaints. The only exception is the issue of distribution of costs in a bankruptcy case. At the time of consideration of the application of the authorized body at the court hearing on 05/07/2013, the debtor had already been excluded from the Unified State Register of Legal Entities, which, taking into account paragraph 8 of Article 63 of the Civil Code of the Russian Federation and paragraph 5 of part 1 of Article 150 of the Arbitration Procedure Code of the Russian Federation, excludes the possibility of further consideration of the case against the debtor, whose activities have been terminated . Under such circumstances, the arguments and objections of the applicant that the authorized body had the right to file a complaint against the actions of the arbitration manager before the completion of the bankruptcy procedure, which provides for further consideration of the application on the merits, cannot be accepted by the court of appeal.

In addition, the argument of the appeal that the exclusion of the debtor from the Unified State Register of Legal Entities is not grounds for termination of proceedings at the request of the Federal Tax Service of Russia, since in this case the dispute is between the authorized body and the bankruptcy trustee, which does not affect the rights of the debtor, is rejected, since the bankruptcy trustee is in in accordance with paragraph 2 of Article 127 of the Bankruptcy Law, it is valid until the completion of bankruptcy proceedings. Consequently, from the moment the debtor is excluded from the Unified State Register of Legal Entities, the powers of the bankruptcy trustee are terminated and he cannot be the subject of a controversial legal relationship. Based on the above, the appeal of the Federal Tax Service of Russia is subject to rejection, and the ruling of the first instance court is to be left unchanged. Guided by Articles 258, 268 - 272 of the Arbitration Procedural Code of the Russian Federation, the Sixth Arbitration Court of Appeal

Resolved:

The ruling of the Arbitration Court of the Khabarovsk Territory dated May 13, 2013 in case No. A73-4035/2009 is left unchanged, the appeal is not satisfied. The resolution comes into force from the date of its adoption and can be appealed to the arbitration court of cassation in the manner prescribed by law.

Source: Legal Department for Arbitration Disputes.

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Form and structure of the review

The general form of the response is similar to the claim template, with the exception of a few nuances. Let's talk about them more specifically.

The paper begins with the design of the header. In the upper right corner of the document, the coordinates of the arbitration and the judge who are considering the case are written down. Next is information about the debtor. Next is the title of the document.

In the introduction, the citizen indicates the reason for filing the review: he writes about who the creditor is who is applying to initiate bankruptcy proceedings, and emphasizes his disagreement with his position.

The following describes the essence of the matter (from the debtor’s side). It is written down on what grounds the loan agreement (or other agreement that caused the debt) was concluded. Particular emphasis is placed on the timing of payments and the amount of debt.

The next paragraph is devoted to how the debt was paid off. In addition, here you need to mention the financial condition of the debtor and argue the reason for the debt.

The last part is the debtor's request. In the form of a numbered list, the party sets out a request to refuse the creditor's demands. If the debtor wants to admit the fact of libel and receive compensation, this will require filing a separate lawsuit.

In addition, in order for the court to add evidence to the case, a complete list of them must be written at the end of the application. The names of the papers are written in full, without abbreviations, with all registration numbers.

The review is certified at the very end with the date and signature of the applicant. The applicant's surname and initials are indicated next to the signature.

Refusal from debt collectors. New application form

In 2020, the Federal Bailiff Service approved a new application form allowing debtors to prepare a waiver from debt collectors. Due to the introduction of a new form, the old model, which was adopted at the end of 2020, has been declared invalid. What does the new application form for refusing debt collectors look like now and why did you need to change it?

The situation with debtors leaves much to be desired. Many citizens simply wait for their debts to be written off someday, because they are not able to cope with them on their own. There is nothing to please them here, although wait. At least loan debtors will be left with their last home. Read more in the material “The only housing for debts 2020. Latest news.”

Debtors are forced to regularly report their plight to collectors, who do not give up hope of repaying the overdue debt. Sometimes citizens get tired of this and try to formalize a complete refusal from debt collectors, especially since the law that came into force in 2020 allows this to be done.

Ways to refuse to communicate with debt collectors

Let us remind you that, according to the requirements of the law, every citizen can issue a complete waiver from debt collectors if 4 months have already passed from the date the debt arose.
After the collectors receive a notice from the debtor, they will stop all contact with him, including telephone, personal, etc. In fact, they only have the opportunity to write postal letters and prepare a lawsuit. It is the latter option that they most often end up turning to. In addition to completely refusing to communicate, the debtor may choose to communicate through an appointed representative. Here, the debtor also draws up a notice and indicates his authorized representative, with whom the collectors must conduct all negotiations regarding the repayment of the debt.

This method also has its advantages. Firstly, to prepare such an application you do not need to wait 4 months from the date the debt arose, but can be sent immediately from the first day. Secondly, the debtor does not lose contact with the collectors and, in principle, through his representative, can negotiate with them to resolve the situation. The debt will still not go away and sooner or later you will have to pay.

New application form

_______________________________________ (indicate the name (for a legal entity), surname, first name and patronymic (if any) (for an individual) of the creditor and (or) person acting on his behalf and (or) in his interests)

Application by the debtor to interact with the creditor and (or) a person acting on his behalf and (or) in his interests, only through a representative, or to refuse to interact

Applicant ______________________________________________________________. (last name, first name and patronymic (if available)

Identity document of the applicant: ____________________________

series ______ number ____________________ issued by “__” ___________ _______ ___________________________________________________________________ (issued by)

Applicant's residence address: _____________________________________________________________________

Applicant's contact numbers: __________________________________________. (phone numbers with area code are indicated)

Applicant's email address (if available): _______________________.

1. When taking actions aimed at returning the overdue debt, I ask ___________________________________________________________________ (number and date of the document confirming the occurrence of the debt)

interact with me in the ways provided for in paragraphs 1 and 2 of part 1 of Article 4 of the Federal Law of July 3, 2016 No. 230-FZ “On the protection of the rights and legitimate interests of individuals when carrying out activities to repay overdue debts and on amending the Federal Law “On microfinance activities and microfinance organizations", through my representative _______________________________________________________ (last name, first name, patronymic (if available)

Lawyer ID number: __________________________________________. Register number and date of inclusion in the register of lawyers of the constituent entity of the Russian Federation, name of the register: _______________________________________.

Representative contact numbers: _____________________________________. (phone numbers with area code are indicated)

Representative email address: _________________________________. Representative's mailing address: __________________________________________.

2. When taking actions aimed at returning overdue debts,

__________________________________________________________________ (number and date of the document confirming the occurrence of debt)

I inform you of my refusal to interact with me in the ways provided for in paragraphs 1 and 2 of part 1 of Article 4 of the Federal Law of July 3, 2016 No. 230-FZ “On the protection of the rights and legitimate interests of individuals when carrying out activities to repay overdue debts and on amending the Federal Law Law “On microfinance activities and microfinance organizations”.

The application was drawn up "__" _____________.

Signature of the applicant _____________________ __________ (last name, first name and patronymic (if available)

How to fill out an application?

At the very beginning of the application, the citizen indicates the name of the creditor or collector to whom this notification is addressed.

Next, the borrower fills in information about himself, including his full name, passport details, registration address, and contact information.

At the next stage, the citizen fills out either point 1 or point 2, depending on how he wants to limit communication. If we are talking about communication through a representative, then you need to fill out point 1. If the debtor wants to completely sever all ties and stop all communication, then you need to fill out point 2.

In paragraph 1, the borrower needs to fill in the details of his lawyer: his full name, identification number, registration number, date of inclusion in the register, as well as contact information. In paragraph 2, the citizen indicates only the number and date of the document that confirms the occurrence of the debt.

What is the difference from the old form and why was a new one needed?

The main difference of the new form is that in paragraph 1, where the borrower indicates his desire to communicate with collectors through a representative, additional fields have appeared. Civil servants wanted debtors to report the representative’s lawyer’s license number and his data from the register of lawyers.

Let us remind you that this was not the case in the previous version of the document. If the borrower wanted to appoint a representative, he indicated only his full name and contact information.

Such changes did not happen just like that. Based on the results of the past year, many controversial situations were recorded in this area. It should be noted that the law requires that only a lawyer be appointed as a representative. However, often the representatives of the debtor were either outsiders or so-called grassroots lawyers who were in no hurry to interact with debt collectors.

Thus, the changes were dictated by the need to protect the rights of creditors. The representative appointed by the debtor should be the contact person with whom debt collectors can negotiate and demand repayment of the loan without interest.

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What happens after submitting a document

After submitting the response and a package of documents, the judge considers the application and makes a decision to initiate or suspend enforcement proceedings regarding the bankruptcy procedure. If the case is resolved in favor of the creditor, then the citizen (or his company) is declared bankrupt. If the revocation has the desired effect, then the creditor’s request is denied, and the debtor can continue his business activities.