The bankruptcy of a developer is a process regulated by Federal Law No. 127 “On Insolvency (Bankruptcy)” and considered in the arbitration court at the legal address of the problem company. Moreover, in the event of its liquidation, the process occurs in a special order (paragraph 7, Chapter 9, Federal Law-127 - “Bankruptcy of Developers”).
The purpose of bankruptcy is to satisfy the claims of creditors (state, banks, shareholders, etc.) at the expense of the money and property of the defaulting company. And for a problematic organization it is the only opportunity to legally free itself from debt and creditor claims. Moreover, this is an opportunity not only to eliminate it, but also to preserve it.
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Benefits of Bankruptcy
A troubled company, if it applies to arbitration in a timely manner and manages the case competently, can achieve the following results:
- maintaining control;
- preservation of valuable financial assets;
- getting rid of doubtful debts;
- extension and restructuring of loans and borrowings;
- moratorium on creditor claims;
- exemption from seizure of property;
- suspension of collection under enforcement documents.
The developer can use financial bankruptcy as a way to restore its financial capabilities or liquidate, with maximum benefit for itself (for example, to save valuable assets).
What is not included in the bankruptcy estate?
The manager excludes some objects from the bankruptcy estate. The law establishes the debtor’s right to retain:
- single dwelling - a house, apartment or part of a residential premises;
- a plot of land on which the only housing is built;
- working tool;
- personal items;
- household items;
- agricultural tools, livestock, buildings;
- Minimum wage for each family member - it is deducted from salary, pension and other income;
- a car, if the bankrupt is disabled or supports a family member with a disability - provided that the vehicle is necessary for the needs of the disabled person (this has yet to be proven);
- jewelry (if it is not expensive jewelry).
You can also exclude from the bankruptcy estate
:
- funds for treatment;
- money to pay for utilities and rent;
- funds for the maintenance of dependents, which include minor children and disabled family members.
The debtor's property that is not included in the bankruptcy estate includes social benefits and guarantees - in particular, benefits for young children. Also, maternity capital cannot be included in the liquidation estate in bankruptcy.
Questions regarding the nuances of forming a bankruptcy estate in the event of bankruptcy of citizens are disclosed in Resolution of the Plenum of the Supreme Court No. 48.
Property exclusion
from the bankruptcy estate as follows:
- The financial manager checks the financial situation of the debtor and excludes certain objects.
- The debtor requests the exclusion of, for example, money for the maintenance of dependents. A petition is drawn up, documents are prepared: birth certificates of children, 2-NDFL certificates and other evidence. The court considers the appeal and determines to allocate a monthly amount for the needs of family members.
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Procedures in a bankruptcy case
The complete procedure for legal entities consists of five points or stages:
- observation;
- financial recovery;
- external management;
- bankruptcy proceedings;
- settlement agreement.
Most often in practice, surveillance and bankruptcy proceedings are used.
During the monitoring procedure, the court sends an arbitration manager to the problem organization, who audits the developer’s activities.
During bankruptcy proceedings, the developer is officially considered insolvent and the arbitration manager takes the reins into his own hands.
Maintaining control over the company, the loyalty of creditors and, ultimately, the successful outcome of the entire procedure largely depend on the loyalty of the manager. This is why it is so important for a troubled organization to initiate insolvency proceedings first.
ACCOUNTANT CONSULTATION
Interim measures
According to 127-FZ, it is permissible for the developer to have a land plot either owned or leased.
But in order to maximally protect the interests of creditors in the bankruptcy process, 201.3 127-FZ regulates the right of the arbitration court to introduce interim measures in the form of:
- Prohibition for a landlord to terminate a land lease agreement with a developer.
- Conclusion of a lease agreement by the owner of a plot of land with another person.
- Prohibition on the disposal of the land plot by its actual owner.
Reanimation or liquidation?
If bankruptcy is initiated by the problematic company itself, it is important to decide on one of two possible options.
The purpose of resuscitation is to restore the company's solvency. This is done through attracting investments, rationalizing production, restructuring debts, etc.
The purpose of liquidation is to preserve valuable assets, repay creditors' claims, legally write off debts, etc. Typically, this option is chosen when maintaining a legal entity is impractical or not possible.
SIGNS OF BANKRUPTCY
Video on the topic
Bankruptcy of individualsCompetition assets Sale of property
Author:
Vladislav Kvitchenko
CEO . Practicing lawyer in the field of bankruptcy of individuals. persons Since 2015, she has been successfully handling insolvency cases. Vladislav is brilliantly versed in bankruptcy law, gives expert comments on legal situations and actively publishes in specialized publications.
Procedure for payment of monetary compensation
In case of bankruptcy of a company, there is a payment order or priority determined by law:
- persons to whom the company must compensate for harm to health (if any);
- employees of the company itself (salary);
- citizens, participants in shared-equity construction (shareholders who bought apartments under DDU), funds that made payments to citizens participants in shared-equity construction;
- all other creditors.
As can be seen from the above list, shareholders have priority in receiving monetary compensation over other creditors.
BANKRUPTCY PROCEDURE FOR AN INDIVIDUALS STEP-BY-STEP INSTRUCTIONS
INTENTIONAL BANKRUPTCY
Specifics of the developer's insolvency procedure:
- special rules for protecting the interests of shareholders;
- the admissibility of settlements with creditors both in money and real estate (including unfinished objects);
- advantage of the register priority of shareholders over bankruptcy creditors;
- admissibility of consideration both at the place of registration of the developer and at the location of the majority of construction participants.
Otherwise, the insolvency procedure for a construction organization follows the same “scenario” as the procedure for another legal entity.
HOW TO FILE A BANKRUPTCY APPLICATION
Structure and content
The bankruptcy of the developer in 2021 is regulated taking into account the rights of shareholders in a separate paragraph in 127-FZ. Paragraph 7 of Chapter 9 “On Insolvency” is dedicated to it.
This chapter is devoted to the peculiarities of bankruptcy of certain categories of legal entities.
There is no separate law on bankruptcy of developers in Russia. But such a definition was often applied to 210-FZ of 2011, which introduced the provisions of the seventh paragraph of 127-FZ.
In order for the provisions of paragraph 7 to apply to a legal entity when considering a bankruptcy application, the arbitration court must recognize the debtor as a developer. In doing so, he should be guided by the provisions of Art. 201.1 127-FZ. Shareholders benefit from the application of the provisions of paragraph 7, since according to it they have privileges over creditors.
7 paragraph 127-FZ includes articles 201.1-201.15.4, which cover the features of declaring a legal entity in bankruptcy status financially insolvent.
What are shareholders entitled to?
Shareholders can claim money (the payment is formed from the amount specified in the contract and compensation for damage incurred) or the living space due to them.
In order to be included in the register of creditors, shareholders must present their monetary claims within 30 days from the date of publication of information about the start of the bankruptcy procedure. If the defaulter is declared bankrupt, shareholders have three months to file claims from the date of publication of this fact. Otherwise, it will be very difficult to obtain compensation. Moreover, to ensure that the shareholder’s claims are included in the register of creditors, his share participation agreement must be registered with the relevant government agency.
Even if there is not enough money for all creditors, at the end of the procedure, the developer is legally freed from the debt load.
BANKRUPTCY OF INDIVIDUALS
What is included in the bankruptcy estate and how is it formed?
In bankruptcy, Big Brother is the money manager. He is engaged in the formation of the mass. How it works?
- The cards and accounts
transferred by the debtor . In return, a special account is formed where money from closed cards is transferred. Further income also goes there - for example, a monthly salary. - The debtor submits inventory of property
, where he indicates everything that is in his property. If the procedure was initiated by the bankrupt himself, an inventory is attached to the application for recognition of insolvency.
You need to list mortgaged housing, grandma’s apartment, an old Lada from 1990, and even a plot of land that was registered jointly with a relative.
- The property found by the administrator is added to the bankruptcy estate. Note that “forgetfulness” in transferring property can be costly: it is classified as dishonest actions. A person risks remaining bankrupt with unwritten off loans.
The debtor will definitely be checked
. Requests are submitted to the traffic police, Rosreestr and other institutions. The manager’s task is to discover forgotten or hidden property.
- The financial manager also attracts property, which is characterized as accounts receivable
. This is what is owed to a bankrupt.
For example, if he is owed 400,000 rubles on a promissory note, the manager will try to get these funds returned. He will file a lawsuit and initiate enforcement and other actions in the interests of creditors.
- Property from disputed transactions is also included in the bankruptcy estate
. The manager is obliged to check transactions that have been made over the past 3 years. If he finds signs of suspicion (low value of the object, the parties are relatives, unjustified donation of the apartment), he will try to return these objects to the property of the bankrupt person and include them in the total estate.
The return of property to the bankruptcy estate is carried out by court decision. The injured party to the transaction, who was forced to return the object, is included in the fourth line of creditors.
