Bankruptcy transaction: how a buyer can protect himself

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Author of the article: Konstantin Milantiev

Last revised March 27, 2021

Reading time 13 minutes

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The insolvency procedure helps individuals legally write off their debts to creditors. Valuables are sold through auction, and the proceeds go to pay off debts, and the remaining debts are written off. But bankruptcy auctions are beneficial not only to bankrupts - enterprising citizens use them to buy liquid property at bargain prices for resale.

What is bankruptcy bidding?

Bidding is an auction for the sale of the debtor's property. The sale of the debtor's assets is the final stage of recognizing his insolvency, aimed at satisfying the claims of creditors.

The sale of things during bankruptcy is carried out through electronic auctions. The financial manager himself or hires an appraiser evaluates the property before sale. The manager also organizes the entire bidding process, and then enters into an agreement with the buyer, registering it, if necessary, in Rosreestr. The financial manager has the right to sell movable property less than 100 thousand rubles through direct sales - he publishes advertisements on Avito and other websites or in newspapers.

Fraudulent schemes involving imitation of real trading

According to the rules of the auction, its participants (except the winner) are returned the previously paid deposit. Usually the deposit is returned within five working days from the date of publication of the final protocol on the electronic platform.

The essence of the deception is to collect a deposit, which is then not returned to the bidder.

Fraudsters use the data of a really bankrupt company and place lots on behalf of its bankruptcy manager, and also provide bank details to transfer the deposit. Naturally, the lot is offered at an attractive price.

How to counter this?

First of all, the buyer needs to find information about the property up for auction.

Information that an auction will be held for the sale of the debtor's property must be published in the Unified Federal Register of Bankruptcy Information (EFRB). Complete data on trading is published in official sources - Kommersant (according to Law No. 127-FZ, publication is mandatory).

It is clear that the fraudulent scheme is designed to ensure that the buyer does not have time to check the information and, in pursuit of a cheap item, the buyer would forget about precautions.

Trading Features

The insolvency procedure is regulated by bankruptcy law 127-FZ. It states that trading is held on electronic trading platforms (ETP), and individuals, individual entrepreneurs and legal entities can participate in them. The sale of property of bankrupt citizens is carried out through the electronic trading platform.

The bidding procedure is transparent, and you can track all stages of the lot’s movement on the Internet. If order is violated, each participant has the right to file a complaint:

• to the Federal Antimonopoly Service at the location of the debtor or the auction organizer;
• to the court conducting the bankruptcy case.

If fraud is detected in the actions of the financial manager or other persons, administrative proceedings will be initiated.

The sale of assets due to bankruptcy of citizens is carried out according to several schemes:

1. Open auctions. Everyone participates in them. For certain items, restrictions on participants are possible: for example, to buy a weapon, you must have a license and attach it to the application.
2. Sale on a competitive basis. Items of historical, cultural, and religious value are put up for sale. First, the auction organizer, and then the winner, ensures the safety and free access to cultural heritage monuments.
3. Direct sales. This is a format for selling property worth up to 100 thousand rubles.

The sale of debtors' property is carried out remotely according to the principles of an auction (Article 447 of the Civil Code of the Russian Federation). The participant who offers the maximum price wins and becomes the buyer of the lot. In this case, the buyer is obliged to fulfill the conditions of electronic trading - deposit money on time, sign a purchase and sale agreement, accept the property, and register it in his name.

Purchase of illiquid objects

The procedure for selling property is strictly regulated. Numerous electronic trading platforms have been created to sell bankrupt property.

Due to inexperience, the buyer may purchase an illiquid lot, for example, the right to claim a debt or other objects that may subsequently cause losses.

Before purchasing receivables, the buyer needs to carefully analyze their origin, as well as the likelihood of collecting funds from the debtor.

A potential buyer must check with the debtor to see if he is bankrupt (for example, on the website https://arbitr.ru or https://bankrot.fedresurs.ru/DebtorsSearch, https://fssprus.ru/iss/ip) , whether there are documents confirming the debt, the basis for collecting the debt, whether the statute of limitations on the debt has expired, the financial situation of the debtor (https://online.igk-group.ru).

Intentional deterioration (improvement) of an attractive (illiquid) object

Often, the sale of a bankrupt's property is carried out in the interests of a certain person or group of persons (the "right" buyer).

Then the exhibited object is presented in an unpresentable form in order to discourage potential buyers from buying the item.

At auctions, the opposite situation can also occur - a deliberate improvement of an object put up for sale. For example, a lot with production equipment, the photograph and characteristics of which conceal the fact that any part is incomplete or malfunctioning.

The buyer must first check the desired object of purchase before the start of the auction, that is, inspect the object of sale visually.

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How do bankruptcy auctions work?

The auction is held in strict accordance with the law.

1. Primary trades. The auction organizer (electronic trading platform) publishes the lot, indicates the description of the lot, the starting price, the auction step, and the amount of the deposit. The price and procedure for bidding are previously approved by the court based on the assessment of the financial manager or an independent appraiser.

   
   Basic trading conditions

   Participants submit bids and the auction will take place on the appointed day. As part of the auction, the price of the lot is increased by an amount determined by the rules of participation in the auction (the minimum increase is an auction step).

   It looks like this: Participant 1 makes a bid: offers to buy the lot at the starting price + 15% (auction step) - Participant 2 makes a higher bid (price by another 15%) within 30 minutes. The winner is the one whose bid is not outbid by another participant. Only participants registered on the ETP and who have made a deposit are allowed to participate.

2. Repeated bidding. If the initial electronic auction is recognized as not having taken place, then the organizers set a date for re-bidding, while reducing the cost of the lot (usually by 5-10% of the originally stated price).
3. Public bidding.
   If two stages of the auction were unsuccessful, the organizers will schedule a public auction, during which the value of the lot will gradually decrease. For example, the starting price of a car is 500 thousand rubles. According to the public conditions, the price is reduced by 10% every week until an application is received. The car requires repairs, so no one was interested in it for 500 and 450 thousand. A week later, the price of the lot dropped to 400 thousand rubles, and the car was sold. If 2 bids come in at once for the same price, the one who submitted the bid first wins. Bankruptcy brokers wait for just such auctions; here they can buy valuable things at a 90% discount. But liquid property, as a rule, does not reach this stage of trading.

These are the basic steps in how bankruptcy bidding works. If, as a result of the sale procedure, any property of the debtor remains unsold, it is offered to creditors directly. If the property turns out to be unclaimed by creditors, it will be returned to the bankrupt.

What is subject to inventory and sale

What is being sold at auction?

Any property that has a market value can be transferred to bankruptcy auctions for individuals, organizations and business entities:

• cars, motorcycles, motor boats, other types of transport;
• factories, retail spaces, production;
• securities, jewelry;
• special, household appliances;
• real estate objects (residential, non-residential and commercial), land plots;
• rights of claim, trademarks;
• production, computer equipment;
• objects of art, musical instruments.

If the sale of property does not bring the expected amount, the proceeds are used to cover part of the debt to creditors in order of priority, and the remaining debts are written off.

Where are the auctions taking place?

Russian legislation does not limit financial managers in choosing a site for auctions. Among all the existing resources where trading takes place, the following are most in demand by participants:

1. Fabrikant.ru. It is considered the most visited portal. A large number of trades are held here regularly.
2. AST Sberbank. The advantage of Sber's trading platform is its interface, which is understandable even to a novice. Through this resource, the property of debtors who took out loans and did not repay them on time, as well as the assets of organizations and individual entrepreneurs, are regularly sold.
3. Implementation center. The platform is intended for the sale of property of individual entrepreneurs and organizations. In 2021, the property of bankrupt individuals will also be traded on the site, but so far there are fewer such lots than on other sites.
4. Electro trading. A universal trading platform with a convenient and easy-to-understand interface. Although it was recently established, auctions are often held here.

Everyone who wants to participate in the auction must know what to look for and what influences the choice of ETP. Places for publications about auctions:

• Trading platforms. They organize and conduct the sale of lots. The list of the most popular sites is listed above. In the registers posted on the sites, applicants will be able to find all the information that will allow them to realistically evaluate the proposed lots and make a decision on the advisability of purchasing them.
• Portals - these sites publish reliable information about trading. For example, information is published by Fedresurs. The official portal of the Kommersant bankruptcy newspaper works on the same principle.
• Aggregators of trades. Aggregator sites accumulate information about all electronic auctions at which the described bankrupt property is sold. They collect data on the Internet or from other open sources, then publish it in catalogs.

The main bankruptcy portal is the EFRSB. Accurate and complete data on all ongoing auctions is collected here. All information about upcoming auctions is published in advance, so a large number of citizens and organizations learn about them (the message is posted on the website 25 days before the start of the auction).

Rules for participation in bankruptcy auctions

Preliminary activities

To participate in the auction, everyone must meet a number of conditions:

1. It is important to review the lot carefully. The difficulty is that the financial manager is not obliged to sell each piece of property by personal message. As a result, several pieces of property are collected in one publication, and not all are valuable. To avoid cancellation or contestation of the auction, you need to carefully study the documentation for the property: about the previous owner, mortgage, lease, whether the property is divided into shares, whether there have been legal proceedings.
2. To register an application, you need to transfer a deposit. The amount is transferred to the organizer before the start of sales and guarantees that the winner will buy his lot. The amount of the deposit is indicated in the auction announcement, usually from 5-15% of the starting price. Confirmation of payment is a payment order or receipt. If you don't win, your deposit will be returned within a month. If you win, it will be counted towards the price of the lot.
3. The application is submitted electronically. The application form has a unified form and must contain all the necessary details.

Prices for lots within the electronic auction are set at the last working hour of the day preceding the auction. The final cost of a lot is formed during the sale of lots and depends on demand.

How to buy at auctions: instructions

To buy lots at a profit, participants must follow the instructions:

1. To participate in the auction you must have an electronic signature.
   This is a unique alphanumeric set that provides identification of its owner. An electronic digital signature is stored on removable media (token or flash card) and is intended for document management, signing reports, and official documents. It protects information from changes and confirms copyright on files transmitted over encrypted communication channels.

   An electronic digital signature is needed to use the functionality of trading platforms and participate in bankruptcy auctions. To avoid problems, you need to find out in advance what functionality the digital signature being issued has, and whether it is suitable for a specific ETP.

2. Registration on the selected trading platform.
   The applicant needs to scan the documents and upload them into a special form on the website. If the participant is an individual, then a copy of the passport (page with registration, photo) is sufficient. Individual entrepreneurs and legal entities will have to scan the statutory documentation, a full list of which they will find on the ETP. Registration must be completed in advance, as document verification may take up to 5 business days.
3. Install special software on your computer
   : the program for working with digital signature CryptoPro. To access auctions, Internet Explorer or any other browser is usually used (the functionality of the sites does not always work correctly with the Opera and Google Chrome browsers).
4. Submit an application.
   When filling out the unified form, the participant must have in hand a payment receipt confirming the advance payment made for the selected lot. The advance amount is specified in the description of the lot put up for auction and is usually fixed at 5% of the value of the asset. The payment order must contain a note from the bank about the financial transaction (otherwise the application is rejected). The requested documents are attached to the application, then it is signed with an electronic signature and sent to the organizers.
5. An individual or legal entity participates in the auction.
   If his last bet works, then the participant has won. All property included in the lot goes to him at the last price (at the highest price, after which no offers were received from other participants). The auction is declared successful.
6. Based on the results of the auction, the organizer draws up a protocol
   reflecting the stages of the electronic auction. The final protocol is published on the website within three days. It indicates the name of the winner. Everyone who lost gets their deposit back within a month.
7. A purchase and sale agreement is concluded with the winner.
   It is sent by email to the buyer, and he, after filling out and signing the digital signature, returns the agreement back. The paper agreement will be sent by mail to the address specified by the participant. If the winner suddenly refuses the lot, he will lose the advance.
8. The winner transfers the money to a special account opened by the financial manager.
9. The buyer enters into property rights - the property is transferred under an acceptance certificate. The real estate purchase and sale agreement is registered in Rosreestr.

Those who know how bankruptcy auctions work have turned participation in auctions into a source of income. The scheme here is simple: buyers look for profitable lots, participate in auctions, and then resell the property. But you shouldn’t think that this is a risk-free type of income - if you don’t prepare enough for the auction and don’t thoroughly check the lots on display, then you run the risk of buying property that will be very difficult or even impossible to sell.

Bankruptcy transaction: how a buyer can protect himself

There is no way to know for sure that you are making a deal with a person who will go bankrupt in a few months. Therefore, any major transaction on the secondary market is always a risk, especially considering how the practice of challenging them in bankruptcy is now developing, says Alexandra Voskresenskaya, lawyer at KAYukov and Partners Yukov and Partners Federal Rating. group Dispute resolution in courts of general jurisdiction group Arbitration proceedings (major disputes - high market) group Bankruptcy (including disputes) (high market) group Criminal law 4th place By number of lawyers 12th place By revenue 17th place By revenue per lawyer (more than 30 lawyers) Company profile. If earlier the procedure was often used to get rid of debts with minimal property losses, now in practice a pro-creditor approach is being formed, continues Eldar Akhmerov, independent legal group Strizhak and Partners Strizhak and Partners Federal Rating. group Arbitration proceedings (medium and small disputes - mid market) group Bankruptcy (including disputes) (high market) Company profile This means the most complete satisfaction of creditors' claims. If we look at the statistics, every year the number of applications to challenge the debtor’s transactions only increases, and the courts are increasingly satisfying such demands. Last year fell out of this trend. The figures may have been affected by the bankruptcy moratorium that was in effect at that time.

When can a deal be challenged?

❌ Most often, purchase and sale transactions of the debtor in bankruptcy cases are disputed due to unequal counter execution. To cancel a transaction on this basis, two conditions are important: the date of conclusion of the contract (the transaction must be completed within 1 year before the seller’s bankruptcy petition is accepted) and the fact of inequality itself, explains Ekaterina Zamulina, lawyer at PB Olevinsky, Buyukyan and partners Olevinsky, Buyukyan and partners Federal rating. group Bankruptcy (including disputes) (high market) 25th place by revenue per lawyer (less than 30 lawyers) 45th place by revenue Company profile. Inequality is determined by how much the value of the property under the contract compares with the market value. Thus, the future debtor sold an apartment in the Moscow region for 650,000 rubles, although at that time its market value was 4 million rubles. The courts decided that the price was clearly too low and declared the deal invalid (case No. A41-29941/2017). As Zamulina notes, the law does not establish a clear difference in prices to recognize inequality; this issue remains at the discretion of the court. According to clause of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated May 16, 2014 No. 28, the presence of obvious damage to the company is evidenced by the completion of a transaction on obviously and significantly unfavorable conditions, for example, if the provision received under the transaction by the company is two or more times lower than the cost of the provision made company in favor of the counterparty. This position was used by the courts in their decisions in cases No. A55-22185/2015, No. A65-18389/2019. But the percentage of discrepancy between the market and contract price is also used as a criterion for disparity. Akhmerov analyzed the practice and calculated exactly what difference between prices the courts recognize as unequal.

How do courts assess the difference between market and contract prices:

from 18 to 20% - the difference is not significant (the position of the Supreme Court in case No. A53-1203/2016, the decision of the Volga District Court in case No. A65-7317/2015, the decision of the Central District Court in case No. A23-1083/2015);

from 20 to 40% - the courts assess it ambiguously (in case No. A43-15879/2016, a discrepancy in price of 37% was considered insignificant, in case No. A71-11854/2015, a discrepancy of 34% was considered significant);

more than 40% - a significant reduction in price (decision of the ASGM in case No. A40-49715/2016, position of the Supreme Court in case No. A40-49715/2016).

Based on practice, the expert says that the “safest” thing for the buyer would be to lower the price by up to 20%. If the difference is larger, then the risk of challenging the transaction increases.

Alina Manina, head of bankruptcy support practice at Alliance Legal Consulting Group Alliance Legal Consulting Group Federal rating. group Sanctions law group Criminal law group PPP/Infrastructure projects Company profile believes that often sellers themselves ask to lower the price of an object in order to later pay less sales tax. For example, if an apartment costs 9 million rubles, the owner offers 5 million rubles. indicate in the contract as the price, and the remaining 4 million rubles. transfer in cash “for inseparable improvements.”

This is unacceptable, even if you are convinced of the legal purity of such a transaction. For example, that for 4 million rubles. An additional agreement will be drawn up, and for the money received the seller will provide a handwritten, correctly drawn up receipt.

Alina Manina, head of bankruptcy support practice at Alliance Legal Consulting Group Alliance Legal Consulting Group Federal rating. group Sanctions law group Criminal law group PPP/Infrastructure projects Company profile

Manina warns that if the seller goes bankrupt in the future, this transaction will definitely be declared invalid, because the apartment was sold at a reduced price. Zamulina agrees with this. According to her, it will be almost impossible to prove that the apartment was actually sold for a different amount. Thus, in case No. A41-66664/2017, the courts rejected the buyer’s arguments that he actually paid twice as much for the apartment as stated in the contract. As a result, the deal was declared invalid.

❌ Another popular basis for declaring a debtor’s transaction invalid is its completion for the purpose of causing harm to the property rights of creditors. Such a transaction must be completed within three years before the application for declaring the debtor bankrupt, and the buyer knew or should have known about the seller’s purpose. On this basis, the transaction is canceled if:

• The buyer didn't pay a penny. The manager challenged the purchase and sale transaction of an apartment in St. Petersburg. The fact is that the property was registered to the new owner, but he never made payment for it (case No. A56-22745/2019);
• the form of payment was non-standard. Thus, in case No. A40-270147/2018, the future bankrupt LLC Kron decided to invest in the construction of an office and residential complex. The company transferred 75 million rubles to the developer, and then the contract was terminated. The developer agreed to return the amount paid. But in the end he “paid off” with promissory notes from third parties. The bankruptcy trustee challenged the transactions, deciding that they were harmful to creditors. The courts agreed with him;
• the debtor donated the property. There is a high probability that the gift transaction with an affiliate will be challenged. The future bankrupt, two years before the procedure, transferred the house and the land on which it was located to his wife. The courts decided that the wife must have known that the husband had financial problems and might become bankrupt. The Economic Board of the Supreme Court, to which this dispute reached, emphasized that “a crisis situation, as a rule, does not arise overnight; it is preceded by a period of declining profitability, which goes into the stage of objective bankruptcy” (case No. A53-15496/2017).

❌ They can also challenge an imaginary deal, that is, one made only for show. Thus, in the framework of insolvency case No. A33-26650/2016, it became known that first the creditor decided to recover losses of 2.6 million rubles from the future bankrupt. through the court. After the initiation of the case, the debtor sold his Citroen car. But during the procedure, the manager found out that the man actually used the car for almost 3 more years.

❌ A feigned transaction is also considered invalid. In fact, this is a disguise for other transactions that the parties are actually going to make. Thus, in case No. A65-14835/2019, the courts found the chain of transactions for the sale and purchase of a Lexus car to be fraudulent. In 4 years, the luxury car has had four owners. Three authorities decided that this whole chain was needed to cover up the true one - the gratuitous withdrawal of the debtor’s property. The courts decided this way because the first buyer could not prove that he actually transferred money under the agreement.

What if the debtor is in good faith?

But what if you did not help the debtor “withdraw” the property, did not receive real estate as a gift, and even the price of the transaction was normal by market standards? In order not to lose both the purchase and the money as a result of acquiring property “with history,” the buyer must act in good faith and with “due diligence.” The courts think so. This means that at the stage of signing the contract, the new owner must take all measures necessary to verify the purity of the transaction.

Currently, the standard of good faith of the buyer is quite high, which implies the greatest caution of the buyer when making a transaction and conducting not a formal verification of documents, but a detailed additional check in order to establish the legal purity of the transaction.

Alexander Simonov, partner of the independent legal group Strizhak and partners Strizhak and partners Federal rating. group Arbitration proceedings (medium and small disputes - mid market) group Bankruptcy (including disputes) (high market) Company profile

According to the explanations of the Plenum of the Supreme Arbitration Court, the Plenum of the Supreme Court in Resolution No. 22 dated April 29, 2010, in order to prove the buyer’s good faith, it is necessary to submit payment orders, cash receipts and other evidence that confirm payment under the contract. It is also important to prove the financial feasibility of the acquisition and the absence of affiliation between the seller and the new owner. But, as Alexander Simonov, partner of the independent legal group Strizhak and partners Strizhak and partners Federal Rating, says. group Arbitration proceedings (medium and small disputes - mid market) group Bankruptcy (including disputes) (high market) Company profile, in practice, the courts have expanded the range of conditions that allow the buyer to be recognized as bona fide. These conditions include:

• the buyer checking the seller’s authority (case No. A03-16038/2016);
• familiarization of the buyer with the title documents for the property (case No. A12-1534/2020);
• inspection by the buyer or trustee of the property before the transaction (case No. A33-4417/2018);
• obtaining extracts from the Unified State Register of Real Estate, the register of notifications of pledges of movable property (case No. A60-2733/2020);
• checking the financial condition of the seller (case No. A27-25291/2018);
• search for information about the presence/absence of information about a dispute regarding the acquired property (case No. A40-157934/2015).

Simonov explains that in order to recognize a new owner as bona fide, the totality of all the listed conditions is not always necessary, but compliance with them will allow the buyer to avoid challenging the transaction. Lawyers shared an action algorithm that will reduce the risk of losing a purchase if the seller is declared bankrupt.

Advice for those about to make a deal

It is important for the buyer to be careful, which means finding out everything about the property and the seller before making a transaction. You can check the property and assess the possible bankruptcy of the seller either independently or with the help of specialists. You can contact a notary who will check the alienated property for sale, donation to other persons and find information about the property being pledged, in dispute or under arrest or encumbered by the rights of third parties. Courts recognize an appeal to a notary as a sign of good faith. Akhmerov says that now many law firms provide such a service as Due Diligence. It represents a legal audit, a comprehensive examination of the transaction participant and an assessment of information about the asset being sold. Other experts also advise not to skimp on checking.

When purchasing expensive property on the secondary market, you should never rely on the assurances of the seller or realtor; it is definitely worth conducting a comprehensive check for the risks of challenging the transaction. The costs of verification will be disproportionately small compared to the price of a transaction that could turn into a complete failure.

Stanislav Petrov, partner of Infralex Infralex Federal rating. group Arbitration proceedings (medium and small disputes - mid market) group Bankruptcy (including disputes) (high market) group PPP/Infrastructure projects group Land law/Commercial real estate/Construction group Digital economy group Antitrust law (including disputes) group Corporate law/Mergers and acquisitions (high market) group Family and inheritance law group Transport law group Pharmaceuticals and healthcare group Tax consulting and disputes (Tax consulting) group Tax consulting and disputes (Tax disputes) group Private capital group Criminal law

✔️ First of all, a buyer needs to check the property you are planning to purchase. In fact, this is a universal rule when making any transaction. You need to request a set of documents from the seller: a paper that confirms ownership; in relation to a car, be sure to check the title; if we are talking about real estate, then request an extended extract from the Unified State Register of Real Estate. Yulia Litovtseva, partner and head of bankruptcy and anti-crisis business protection practice at Pepelyaev Group Pepelyaev Group Federal rating. group Antimonopoly law (including disputes) group Arbitration proceedings (medium and small disputes - mid market) group Foreign trade/Customs law and currency regulation group Land law/Commercial real estate/Construction group Intellectual property (Registration) group Compliance group Tax consulting and disputes (Tax consulting) group Tax consulting and disputes (Tax disputes) group Labor and migration law (including disputes) group Digital economy group Intellectual property (Protection of rights and litigation) group Intellectual property (Consulting) group Natural resources/Energy group Pharmaceuticals and healthcare group Financial /Banking law group Environmental law group Bankruptcy (including disputes) (mid market) group Corporate law/Mergers and acquisitions (high market) group International arbitration group TMT (telecommunications, media and technology), says that when analyzing extracts from the Unified State Register of Real Estate, you need to pay special attention to the frequency of changes in ownership. If the seller recently purchased the asset or the apartment was resold several times in a short period of time, then this is an alarming sign. “Surely there is something wrong with the property in terms of title, physical properties, financial status of the previous copyright holder, and the integrity of the participants in the chain of transactions,” Litovtseva is sure. Zhuravchak recommends further clarifying the form of payment for the transaction at the previous stage and its fact.

Problems may arise for a bona fide buyer, even if the seller cannot justify in court where he got the cash for the purchase in the first place. Of course, if the purchase was not paid for by the previous seller, this is also a risk for the buyer.

Vladimir Zhuravchak, partner of the Law Firm Sotheby's CJSC Sotheby's CJSC Federal rating. group Bankruptcy (including disputes) (high market) group Private capital group Arbitration proceedings (major disputes - high market) group Dispute resolution in courts of general jurisdiction Company profile

✔️ It is also worth finding out why the owner decided to sell the asset. There are often advertisements for the sale of cars at a reasonable price from Fr. In itself, such wording may already mean that the seller has some financial difficulties, Akhmerov believes. This does not mean that you should ignore all offers to sell the property at a price below market value. It is possible that the seller is conscientious and needs money for objective reasons - moving, urgent treatment, and so on. But such announcements should be treated with caution. “The buyer, purchasing serviceable property at a significant discount, could not help but realize that the transaction violates the rights and legitimate interests of the debtor’s creditors. Acting reasonably and in good faith, the buyer should have inquired about the purpose of selling the car on such terms and determined from publicly available sources information about its average market value,” the Arbitration Court of the West Siberian District indicated in case No. A45-26468/2019.

✔️ Then it is important to check the financial condition of the debtor. Akhmerov believes that practice indicates the actual existence of a presumption of guilt, that is, each seller must be suspected of future bankruptcy. And Zhuravchak believes that this can help, even if the bankruptcy itself occurs much later: the buyer will have evidence that he was careful and acted in good faith. Vadim Borodkin, Advisor to Orchards Orchards Federal rating. group Arbitration proceedings (major disputes - high market) group Environmental law group Antimonopoly law (including disputes) group Bankruptcy (including disputes) (high market) group Land law / Commercial real estate / Construction group Dispute resolution in courts of general jurisdiction group TMT (telecommunications, media and technology) group Pharmaceuticals and healthcare group Intellectual property (Consulting) Company profile, suggests requesting a report from the credit bureau from the seller. But it does not reflect debts to individuals, and the current owner of the asset can refuse.

Obviously, a seller interested in selling property is unlikely to disclose to the buyer information about the presence of financial difficulties, but the buyer can carry out the appropriate verification without his participation.

Eldar Akhmerov, partner of the independent legal group Strizhak and partners Strizhak and partners Federal rating. group Arbitration proceedings (medium and small disputes - mid market) group Bankruptcy (including disputes) (high market) Company profile

To verify an individual, you need to know his last name, first name, patronymic and passport details. Akhmerov says that the seller is obliged to provide a copy of the passport to the potential buyer. Having such information, the buyer will be able to check the seller on the website of the Federal Tax Service of Russia, the FSSP of Russia (for current enforcement proceedings), in the file of arbitration cases or on the websites of courts of general jurisdiction at the place of registration of the seller (for the presence of initiated civil and arbitration cases for debt collection) . Simonov considers it important to check a citizen for participation in legal entities as a founder, manager or shareholder. After all, he could theoretically be attracted to a “subsidiary”, which would subsequently lead to the bankruptcy of the seller himself and the contestation of transactions made in relation to personal property.

The Supreme Court simplified the bankruptcy of an absent debtor

If we are talking about a legal entity, then you can use the “Transparent Business” service - a state information resource for accounting (financial) reporting on the official website of the Federal Tax Service of Russia and a free service for checking counterparties. Information about the company can be obtained using special services such as Casebook. From them you can find out about the bankruptcy of the seller, analyze and compare the values ​​of indicators that determine the financial condition for several periods, and assess the risks of the seller's insolvency. Stanislav Petrov, partner of Infralex Infralex Federal rating. group Arbitration proceedings (medium and small disputes - mid market) group Bankruptcy (including disputes) (high market) group PPP/Infrastructure projects group Land law/Commercial real estate/Construction group Digital economy group Antitrust law (including disputes) group Corporate law/Mergers and acquisitions (high market) group Family and inheritance law group Transport law group Pharmaceuticals and healthcare group Tax consulting and disputes (Tax consulting) group Tax consulting and disputes (Tax disputes) group Private capital group Criminal law says that in practice the courts recognize, that the buyer was aware of the signs of bankruptcy of the seller if publications appeared on Fedresurs and in Kommersant about the introduction of a monitoring procedure against the debtor (No. A40-69663/2017). Sometimes courts also recognize as such evidence information from the file of arbitration cases on the initiation of bankruptcy proceedings against the debtor (No. A62-7960/2017), but this practice is not uniform, the expert admits.

Voskresenskaya advises supplementing the purchase and sale agreement with assurances about the circumstances, namely that the seller does not have financial problems (accounts payable, outstanding debt). And provide sanctions in case of violation of these guarantees. The expert admits that this is unlikely to save the seller even during bankruptcy, but perhaps it will scare away unreliable sellers.

• Anastasia Sinchenkova

• Bankruptcy