When including in the register of creditors, the arbitration court examines carefully every application; the court makes it more carefully if other creditors and the receiver take an active position.
Recently, the courts have taken a quite tough position towards creditors whose claims are valid from the standpoint of civil law, but suspicious from the position of the court conducting the bankruptcy case. If such creditors are also connected with the debtor in any way, they are often denied the inclusion of their claims in the register of creditors ' claims.
As for the claims of persons affiliated with a bankrupt company that actually provided such a debtor with funds, the situation is somewhat different. The court may satisfy the claims of such creditors, but by subordinating them to the claims of other creditors. The essence of subordination consists in the lowering of the debtor's controlling or affiliated persons in the priority order of satisfaction of claims of other (ordinary) creditors. This approach is based on the consideration that persons related to the debtor are placed in the position of actual participants (shareholders) of such a debtor, who receive satisfaction in the bankruptcy procedure after all, which in practice means "never".
The concept of "priority of claims" is absent in the current legislation, and judicial practice contains a considerable number of cases confirming the use of this construction by courts through lowering the priority of creditors ' claims.
Examples of affiliated creditors’ priority.
There are several examples in which the court can subordinate the claims of an affiliated creditor (controlling person):
- the debtor's financing is based on a loan agreement provided in a situation of a debtor's property crisis;
- de facto financing carried out by refusing to take measures to recover the debt from the debtor;
- granting a grace period to the debtor under sale and purchase contracts, work contracts, lease contracts, etc.;
- a claim acquired by an affiliate from an independent creditor under an assignment agreement;
- a claim of an affiliate who has fulfilled an obligation for the debtor to an independent creditor.
Examples of affiliated creditors with no priority
However, it is possible to identify a category of requirements to which the priority rules will not be applied.
- proper use of internal financing that does not violate the rights of other creditors.
- participation of a state or municipal organization in the formation of the authorized capital of the debtor;
- provision of loan by a person controlling the debtor under an agreement with an independent large lender (often a bank that requires the lender's shareholders to participate in financing); such an agreement must not violate the rights of minor creditors who did not participate in the agreements.
It is obvious that some examples of courts subordinating claims of affiliated creditors or refusing to do so are rather vague, which leaves the court with wide discretion. Therefore, any creditors’ claims, even if they are remotely related to the debtor, should be carefully studied and pre-evaluated by experienced specialists. It should be noted that judicial practice followed the way of subordination of claims of affiliated creditors not only in cases of bankruptcy of legal entities, but also in bankruptcy cases of citizens.
Comment type is not specified in the component properties.