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The procedure for declaring a legal entity-debtor bankrupt provides for a fairly large number of actions aimed, among other things, at satisfying the claims of various types of creditors. All such actions are described in detail in Federal Law No. 127-FZ "On Insolvency (Bankruptcy)".

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One of the types of creditors who take part in almost all bankruptcy procedures carried out in the territory of the Russian Federation is a secured creditor.

Collateral lender concept

The concept of a pledged creditor is currently not present in any of the current regulatory acts that regulate the procedure for recognizing a legal entity, that is, insolvent from a financial point of view. It is possible to form a definition of this concept on the basis of the existing law enforcement practice related to the use of legislation on declaring a legal entity insolvent. In accordance with this practice, a pledged creditor should be considered one who provided any loan to the debtor, regardless of the form of its expression, accepting as security any property or obligation that becomes the subject of pledge. In bankruptcy proceedings, the person who acts as the holder of the pledged item will be considered as the creditor.

Feature of the legal status

Such a creditor acts as a creditor, however, due to his special status, indicated in the form of possession of the property that will be sold primarily to pay off existing debts, he has the right to declare his claims at any time during the bankruptcy proceedings, even if such a statement happened with a missed deadline.

The claims of the secured creditor must be satisfied on a priority basis, that is, without observing the calendar order. This is the peculiarity of its legal status.

In addition, the peculiarity of this status lies in the fact that the pledged creditor, despite its special legal position, does not have the right at the same time to vote on key issues of bankruptcy proceedings. This is done to exclude the possibility of abuse of their rights in order to satisfy their interests with such a creditor in the framework of the ongoing bankruptcy procedure.

Responsibilities

Also, its obligations should be considered as a defining indicator of the status of a secured creditor. They will be the same at all stages of the bankruptcy procedure until the claims are satisfied:

• foreclosure carried out from the existing debtor;
• if it is necessary to obtain the right to vote on the conducted creditors on key issues of the bankruptcy procedure - refusal to sell the existing collateral;
• in the event that the subject of the pledge will be sold at a specially organized auction, the pledged creditor must determine the procedure in which such a sale will take place, as well as those conditions that he considers most important in carrying out such a procedure;
• notification of the desire to keep the subject of the pledge in the event that repeated bidding procedures for the sale of such an item did not take place (the algorithm will be discussed below).

Rights during financial recovery and external administration

Until such time as the external management procedure is introduced with respect to the debtor legal entity, the pledgee may, at any time, carry out the foreclosure on such a pledge in order to satisfy the requirements for the repayment of the existing one. However, this right disappears as soon as the external administration procedure is introduced. From this moment, it is possible to foreclose on the subject of pledge only on the basis of a specially adopted court decision.

If the pledgee wants to receive reimbursement of the debt owed to him by foreclosure on the subject of pledge at his disposal, he must apply to the court in order to obtain such a decision. However, in order to carry out such an appeal, one of two scenarios must be proved, namely:

• if no execution is levied on the subject of the pledge, there is a high risk of a significant loss in the value of the pledged property, for example, as a result of its damage, or there is a risk of complete loss of property, for example, due to its destruction;
• if the debtor succeeds in proving that the pledged item will not result in the impossibility of restoring the debtor's solvency.

In the event that the sale of the pledged item took place, the funds that were received as a result of such a sale are used to pay off the claims of the pledged creditor. If the funds received from such a sale are not enough to pay off the existing debt, then the part for which there is enough funds is first paid off, and the rest is included in the general claims of creditors and satisfied in the third order in the form of claims of creditors included in.

In this case, priority does not apply even in cases where the claims of the secured creditors arose even before the commencement of proceedings on recognition of a legal entity.

The pledged creditor at the stage of financial recovery and external management does not have the right to vote on key issues, except for issues related to the determination of the bankruptcy administrator who will conduct the bankruptcy procedure of the organization, or upon termination of the bankruptcy proceedings and transition to the external management stage. However, in the event that the pledged creditor himself refuses to sell the pledged item, or the court denies him such a right, such a creditor will have the right to vote on all issues considered at the meeting of creditors.

Rights during bankruptcy proceedings

During bankruptcy proceedings for a secured creditor, the rights are mainly aimed at enforcing the satisfaction of his claims for the payment of existing debts. For this reason, the key right is the sale of the subject of the pledge, which he has, in order to obtain a certain amount of funds.

In the event that the pledged item was sold, the proceeds from the sale are distributed as follows:

• the amount of funds equated to seventy percent of the proceeds from the sale of the pledged item is used to satisfy the claims of the pledged creditor. However, this amount cannot be more than the value of those obligations that were secured by the pledge;
• twenty percent of the value of the pledge is directed to satisfy the claims of creditors of the first and second stages (provided that there were not enough other funds for such repayment);
• the remaining ten percent of the proceeds should be used to pay for the available and payment to the liquidator.

In the event that after these payments there are any funds left, they are transferred to the amount of the bankruptcy estate and sent to repay the claims of other creditors included in the third priority. In this case, the interest arising as part of obligations to the creditor who acted as the mortgagee is paid in priority order.

In the event that the creditor decided to refuse to sell the pledge and kept it for himself, or the repeated bidding for the sale of the pledged property did not take place, such a creditor has the right to keep the subject of the pledge, announcing this to the court during a special court session. In order to comply with the requirements of Article 138 of Federal Law No. 127-FZ "On Insolvency (Bankruptcy)", the pledged creditor must perform the following actions:

• appraise the pledged item ten percent below that value, which was formed for re-bidding for the sale of the pledged item;
• funds in the amount of thirty percent of the received value to be transferred to two special accounts in the following ratio: twenty percent - to an account intended to satisfy the claims of creditors of the first two stages, ten - to pay off legal costs and pay for work and persons involved in the implementation of measures through bankruptcy proceedings.

The term for transferring funds to such accounts in the event that the subject of the pledge remains for the pledged creditor may not exceed ten days from the announcement of such a decision.

Requirements of the secured creditor

The claims of the pledged creditor, which must be satisfied as part of the bankruptcy procedure, must be included in a special register. However, such inclusion will be carried out subject to the following conditions:

• submission to the court of documents confirming the legitimacy of the collateral obligations of the legal entity-debtor to the creditor. Such documents can be all signed agreements reflecting the essence of pledge obligations, as well as special agreements, including those confirming the fact of transferring various types of property as collateral, for example, to receive funds from a creditor or supply goods, etc. All documents must be of an official nature and, if necessary, reflected in the current legislation, go through the registration procedure (for example, in the case of acquiring real estate and sending it as collateral to receive funds, this information must be reflected in special databases of Rosreestr, and in the case of state contracts concluded in order to meet the needs of state and municipal customers and persons equated to them, for which collateral obligations are provided, there must be registration in the Unified Information System);
• compliance with the deadlines for the provision of such documents and statements of their claims... In the event that such claims are timely, the pledged creditor has the right to count on their priority satisfaction within the framework of the formed register of creditors' claims. If, for some reason, the deadline for submitting data on such claims was missed, then the secured creditor does not have the right to priority repayment - his claims will be satisfied from the bankruptcy estate after observing the previously established sequence. He will have an advantage only in the calendar plan over other creditors of the bankruptcy and collateral types who have missed the deadline for filing claims.

If, in the course of the procedure for declaring a debtor-legal entity financially insolvent, it is established that the pledged item has already been alienated from the debtor in one of the possible ways, then the pledged creditor loses its status and becomes a standard third-priority creditor. This is due to the fact that there is nothing to satisfy his requirements. Such events may arise if the pledged creditor himself missed the deadline for filing his claims, and the subject of the pledge was sold to include the proceeds in the bankruptcy estate to pay off existing claims. In this case, the satisfaction of the creditor's claims will take place in the amount that he declared in court for inclusion in the register, but in the general procedure of the third priority, since along with the loss of the pledge, such a creditor also lost his preemptive right.

The bankruptcy procedure has a number of features. What is the role of the secured creditor in bankruptcy cases? The fact is that the legal status of secured creditors has changed several times; nevertheless, its implementation in practice raises a number of questions to this day. Let's try to figure out who is a secured creditor, and what is the procedure for reimbursing the troubled debts of a bankrupt?

Who is the guarantor - the main meaning

To obtain a loan, the borrower, in the case of large amounts of money, must provide the lender with some guarantees. Very often, movable or immovable property to which the borrower has ownership rights can act as such guarantees. If the borrower does not have enough collateral, then the guarantor can provide the missing guarantees.

If, as a result of entrepreneurial activity, the borrower received bankruptcy status, then the lender cannot immediately fully dispose of the property. One and the second party have their own rights and obligations, which are regulated by legislation, the terms of the concluded agreement.

The guarantor can also guarantee the fulfillment of the obligations of the borrower when it is declared bankrupt. In this case, it is the guarantor who will share the obligations with the bankrupt debtor.

What the borrower needs to know: actions with property, acts of acceptance and transfer

The borrower's rights in bankruptcy proceedings are determined at the legislative level of Art. 337, paragraph 1 of Art. 339 of the Civil Code of the Russian Federation. If he violates the obligations stipulated by the contract, then the property that is pledged by the creditor can be sold to pay off the debt. But the procedure for collecting troubled debts is not so simple.

From the moment the collection procedure begins, if an application has been submitted from the borrower for declaring the person bankrupt, the debtor and his subordinates are obliged to transfer all governing documents and accounting reports to the liquidator within 3 days. To register the transfer, an act of acceptance and transfer of property and documentation is concluded. Such a document is called "Act of acceptance and transfer of cases." From the moment of the commencement of bankruptcy proceedings, the accrual of all penalties is canceled.

After the bankruptcy commissioner has all the documents in his hands, he is obliged to transfer them for storage to the State Archives, in this regard, an act of acceptance and transfer of documents is also drawn up. In the same way, a transfer inventory can be transferred, which was compiled in the process of an inventory of property at the enterprise. Similarly, an act of transfer of ownership of the debtor is drawn up.

The procedure for collecting troubled debts is not easy.

If the loan was taken by the borrower and there was a guarantor, then all the claims of the collateral lender will be presented to the one who has the "guarantor" status. If the borrower is declared bankrupt, then the bankruptcy procedure must be carried out in accordance with the law, but at this time the lender has the right to demand that the guarantor fulfill his requirements. The Bankruptcy Regulatory Act regulates all relationships between the parties.

The status of a secured creditor in bankruptcy proceedings: voting, advantages and disadvantages

A collateral lender is one that has some privileges as well as the right to vote at meetings. Initially, in bankruptcy proceedings, it is necessary to obtain the status of a pledge. The decision on this matter is made by the Arbitration Court after the appeal of this person in the appropriate order.

Initially, it will be included in the third priority, and the obligations must be provided by the guarantor. Upon receiving a positive response from the court, it will not be possible to sell the property right away. In order to sell the pledge or transfer it for use to third parties, you must obtain a court permission. Voting can be carried out by persons who have the voting rights granted to them at the legislative level.

Rights when included in the register of claims

The status of a secured creditor must be obtained in accordance with the requirements of the law. When the borrower is included in the bankruptcy register, the secured creditor is granted certain rights in accordance with the bankruptcy law:

To sell the pledged real estate in bankruptcy proceedings, you must apply to the court with a corresponding petition. In case of a positive decision of the court, an auction may be held for the sale of the pledged property. After the sale, 70% of the amount received should be received by the collateral lender. If the amount owed is less than 70% of the funds received, then the amount owed is repaid in full.

In the register of creditors' claims, it is indicated that the security of liabilities for pledged debts is made in the third order when the borrower is included in the bankruptcy register. The creditor may submit an application for inclusion in the register of creditors' claims to the liquidator.

Responsibilities

Upon granting the bankruptcy status to the borrower, the meetings of creditors must take place no later than 75 days after the insolvency procedure of an individual or legal entity in securing financial obligations was opened. While voting is taking place, the obligations on the loan in the absence of payment from the borrower can be fulfilled by the guarantor of the debtor.

The regulatory legal act "On Bankruptcy" defines the obligations of the pledged creditor:

• If the creditor has received the status of a pledge, then he must give up the right to sell the pledged property;
• Creditors' claims are recorded when included in the register;
• If necessary, bidding all responsibilities for holding the event are assigned to the pledged creditor;
• If the collateral has not been sold, and the creditor is ready to take it into ownership, then he must pay the agreed amount to the account of the debtor - the owner of the collateral.

The claims of the secured creditor must be satisfied in accordance with what is stipulated by the regulatory legal act and the register of creditors, they can be found in the register when they are included in accordance with the regulatory acts. Voting can resolve issues of debtor's rehabilitation; not every creditor has the right to vote.

Procedure for bidding

The procedure for the sale of the debtor's property when it is included in the bankruptcy register is determined in the register of creditors' claims and the established priority, in accordance with Article 56 of the Federal Law.

In the conditions of bankruptcy proceedings, the sale of the pledged property is carried out through tenders. When included in the register of creditors' claims, they do not change. When such an event as bidding is included in the plan, all parties should be notified in a timely manner. All its features are determined by the pledged creditor or the Arbitration Court.

As for the timing of tenders, the legislative act says that they should be reasonable, but there are no clear recommendations.

When the auction is recognized as valid

The auction is held in accordance with the norms stipulated by the legislative act. As a result, the auction will determine the winner of the auction; it will be the participant who is ready to pay the highest price for the collateralized property. This is the main advantage of trading. Local governments can limit the number of participants.

If, in the end, the results of the auction are recognized as valid, then the winner will have to formalize the acquisition of the property within a certain period of time, draw up an act of transfer of ownership. These agreements are subject to inclusion in the register of property rights. The bankruptcy procedure ends if the manager has drawn up a report and submitted an application.

The parties can settle their issues at any time. This can be the payment of all debts upon recognition of solvency, the guarantor. The bankruptcy commissioner, after the sale of the property of the borrower, may submit an application that the uncollected proceeds from the sale remain. Then it can be transferred to the founders of the bankrupt, if the application is not received, then these funds can go to the bodies of the municipality.

The applicant wants to approve the regulation on the procedure, conditions and terms for the sale of the property of the debtor - citizen (IP)

The applicant disputes the results of the auction for the sale of the property of the debtor - citizen (IP)

The applicant does not agree with the distribution of funds from the sale of the property of the debtor - citizen (IP)

The creditor wants to include in the register of creditors' claims a claim based on a cancellation agreement

1. From the proceeds from the sale of the pledged item, seventy percent is directed to the repayment of the creditor's claims under the obligation secured by the pledge of the debtor's property, but not more than the principal amount of the debt on the obligation secured by the pledge and the interest due. The funds remaining from the amount received from the sale of the pledged item are deposited into a special bank account of the debtor in the following order:

twenty percent of the amount received from the sale of the pledged item - to pay off the claims of creditors of the first and second priority in the event that other property of the debtor is insufficient to pay off the specified claims;

2. In the event that the claims of the bankruptcy creditor under the loan agreement are secured by the pledge of the debtor's property, eighty percent of the proceeds from the sale of the subject of the pledge shall be directed to repay the claims of the bankruptcy creditor under the loan agreement secured by the pledge of the debtor's property, but not more than the principal amount of the debt on the pledged obligation and interest due. The remaining funds from the amount received from the sale of the pledged item are deposited into a special bank account of the debtor in the following order:

fifteen percent of the amount received from the sale of the pledged item - to pay off the claims of creditors of the first and second priority in the event that other property of the debtor is insufficient to pay off the specified claims;

the remaining funds - to cover legal costs, expenses on payment of remuneration to the insolvency practitioner and payment for the services of persons attracted by the insolvency practitioner in order to ensure the fulfillment of the duties assigned to him.

(see text in previous edition)

2.1. Monetary funds intended to repay the claims of creditors of the first and second priority and remaining in the special bank account of the debtor after the full repayment of such claims, are directed to repay part of the bankruptcy creditors' claims secured by the pledge of the debtor's property, not repaid from the value of the pledged item in connection with the withholding of part of the value for repayment of claims of creditors of the first and second priority in accordance with paragraphs 1 and this article.

The funds remaining after the full repayment of court costs, expenses for the payment of remuneration to the insolvency practitioner and payment for the services of persons attracted by the insolvency practitioner in order to ensure the fulfillment of the duties assigned to him, are included in the bankruptcy estate.

Claims of creditors not satisfied at the expense of the value of the pledged item under the obligations secured by the pledge of the debtor's property are satisfied as part of the claims of creditors of the third priority.

2.2. The creditor's claims under the obligation secured by the pledge of rights under the bank account agreement are satisfied by writing off the bank, on the basis of the order of the bankruptcy trustee, of the funds from the debtor's pledge account and issuing them to the creditor under the obligation secured by the pledge of rights under the bank account agreement, or crediting them to the account specified such a creditor.

The claims of the creditors specified in this clause are satisfied in the amount of seventy percent of the funds available in the pledged account, and if the claims of the bankruptcy creditor under the loan agreement are secured by the pledge of rights under the bank account agreement, in the amount of eighty percent of the funds available on the specified account, but not more than the amount of the claim secured by the pledge of rights under the bank account agreement.

The funds remaining after the satisfaction of the creditors' claims provided for by this paragraph shall be used in accordance with the rules provided for in paragraphs 1 - 2.1 of this article.

3. The bankruptcy commissioner shall open a separate debtor's account in the credit institution, which is intended only to satisfy the claims of creditors at the expense of funds received from the sale of the subject of pledge, in accordance with this article (special bank account of the debtor).

The agreement of the special bank account of the debtor indicates that the funds in the special bank account of the debtor may be debited only to pay off the claims of creditors of the first and second priority, as well as to pay off court costs, expenses for payment of remuneration to the arbitration manager and payment for the services of persons involved the arbitration manager in order to ensure the fulfillment of the duties assigned to him.

Transactions made in violation of the requirements of this clause may be invalidated.

(see text in previous edition)

The initial selling price of the pledged item, the procedure and conditions for holding tenders, the procedure and conditions for ensuring the safety of the pledged item are determined by the bankruptcy creditor, whose claims are secured by the pledge of the property being sold. The specified information must be included by the arbitration administrator at the expense of the debtor in the Unified Federal Register of Bankruptcy Information not later than fifteen days before the date of the start of the sale of the pledged item at the auction.

(see text in previous edition)

In case of disagreement between the bankruptcy creditor under the obligation secured by the pledge of the debtor's property and the bankruptcy administrator or persons participating in the bankruptcy case on the initial sale price, the procedure and conditions for the auction for the sale of the pledged item, the procedure and conditions for ensuring the safety of the pledged item, each of them, within ten days from the date the information is included in the Unified Federal Register of Bankruptcy Information, he has the right to apply for the resolution of such disagreements to the arbitration court considering the bankruptcy case, following the results of which the arbitration court issues a ruling on determining the initial selling price, approving the procedure and the conditions for holding tenders for the sale of the pledged item, the procedure and conditions for ensuring the safety of the pledged item, which can be appealed. If the sale of the subject of pledge is carried out together with the sale of other property of the debtor, the procedure and conditions for such a sale cannot be established without the written consent of the bankruptcy creditor, whose claims are secured by the pledge of the property being sold.

(see text in previous edition)

In the event of disagreements between the bankruptcy creditor under the obligation secured by the pledge of the debtor's property and the bankruptcy administrator, as well as between the bankruptcy creditors under the obligations secured by the pledge of the same property of the debtor, in matters of the procedure and conditions for holding tenders for the sale of the pledged item, each of they have the right to apply with an application for the resolution of such disagreements to the arbitration court considering the bankruptcy case, based on the results of which the arbitration court issues a ruling on the approval of the procedure and conditions for holding tenders for the sale of the pledged item, which can be appealed.

(see text in previous edition)

4.1. If the repeated bidding is declared invalid, the bankruptcy creditor for the obligations secured by the pledge of the debtor's property shall have the right to retain the subject of the pledge with an estimate of it in the amount of ten percent lower than the initial sale price at the repeated bidding.

The bankruptcy creditor for obligations secured by the pledge of the debtor's property, when leaving the subject of pledge, is obliged to transfer funds in the amount determined in accordance with paragraphs 1 and this article to a special bank account in the manner prescribed

The debtor was declared insolvent (bankrupt) and bankruptcy proceedings were opened against him. Among other things, the debtor's property includes a "thing" worth 1,000 rubles, which is pledged in favor of one of the creditors. This creditor presented his claims in the bankruptcy case, his claims in the amount of 2,000 rubles were included in the third stage of the register of claims of the debtor's creditors as secured by a "thing".

According to paragraph 2 of clause 4 of Article 138 of the Federal Law "On Insolvency (Bankruptcy)" dated October 26, 2002 No. 127-FZ, the procedure and conditions for ensuring the safety of the subject of pledge are determined by the bankruptcy creditor, whose claims are secured by the pledge of the property being sold.

In accordance with paragraph 6 of Article 138 of the Bankruptcy Law, the costs of ensuring the safety of the pledged item and its sale at auctions are covered by the funds received from the sale of the pledged item until these funds are spent in accordance with paragraphs 1 and 2 of this article.

In the course of bankruptcy proceedings, tenders are held, but still this "thing" cannot find its new owner.

After 10 months, the costs of ensuring the safety of the pledged item will be slightly lower than its price at the current stage of the public offer (for example, 100 rubles. Expenses and 120 rubles at the current price). Suppose that exactly then, during the public offering, the creditor decided to keep the subject of the pledge. At a price of 100 rubles, an application for participation in the auction was ready to be received.

The bankruptcy creditor for obligations secured by the pledge of the debtor's property has the right to retain the subject of the pledge during the auction for the sale of the debtor's property through a public offer at any stage of reducing the price of such property in the absence of applications for participation in the auction at the price established for this stage of reducing the price of property ... (Clause 4.2. Article 138 of the Bankruptcy Law). In this case, the lender, when leaving the subject of pledge, transfers from 5 to 20% (if, for example, obligations under the loan agreement are secured) of the current value of the property left behind to the special bank account of the debtor.

The bankruptcy commissioner will be able to repay the costs of ensuring the safety of the pledged item only out of 5% of the value transferred to him by the creditor who retained the pledged item. Based on the cost of the item and the stage of price reduction during the public offering, this 5% in monetary terms can amount to 6 rubles.

Thus, 94 rubles (100 - 6) expenses for ensuring the safety of the pledged property will remain unpaid at the expense of funds from this pledged property.

I believe it is incorrect to attribute the costs of ensuring the safety of the collateral to the total bankruptcy estate, it is to exclude such situations, as I understand it, that clause 6 was introduced into the Bankruptcy Law in 2014.

How, then, to pay off the debt to the person who ensured the safety of the pledged property?

Apply to the creditor who left the pledged item with a claim to recover the costs of ensuring the safety of the pledged item? But after all, before leaving behind the subject of pledge, the creditor was not its owner and did not have to bear the burden of maintaining this property. According to paragraph 4 of Article 138 of the Bankruptcy Law, it only determines the procedure and conditions for ensuring the safety of property.

On the other hand, it turns out that if the claim for ensuring the safety of the pledged item against the pledged creditor is not subject to satisfaction, then the pledged creditor, when leaving the pledged item, is in a more advantageous position than if the property was purchased at auction. The person who has ensured all this time the safety of the subject of pledge also becomes a "hostage" of the actions of the pledged creditor (retains or gives to sell).

The opinion of our distinguished colleagues on this issue is interesting.

As part of the judicial reform, in accordance with the Federal Constitutional Laws "On the Judicial System of the Russian Federation" and "On Arbitration Courts in the Russian Federation", a unified judicial system has been created in the country. It also includes federal arbitration courts.

Arbitration courts are specialized courts for resolving property, commercial disputes between enterprises. They also consider claims of entrepreneurs to invalidate acts of state bodies that violate their rights and legitimate interests. These are tax, land and other disputes arising from administrative, financial and other legal relations. Arbitration courts consider disputes involving foreign entrepreneurs.