The liability of a bankruptcy trustee depends on the likelihood of challenging the transaction.

The Supreme Court (SC) has refused to hold a bankruptcy trustee liable for having missed the statute of limitations for challenging a debtor’s transaction. The mere omission of the deadline does not mean that the trustee can be held liable – it must be proved that the grounds for such a challenge actually took place, the Supreme Court said.

The economic panel agreed that it is possible to hold a manager liable when he misses the statute of limitations. This is expressly pointed out in paragraph. 32 of the Resolution of the Plenum of the Supreme Arbitration Court № 63. However, such losses, according to the Supreme Court, can be recovered only if there is a high probability that the transaction would have been challenged.

The courts believed that if the manager would not have missed the limitation period, the transaction could certainly have been challenged. The Supreme Court hesitated. In this case, the transaction would have been challenged under Article 61.2 of the Bankruptcy Law (due to unequal value or under the general basis of creditor challenge – for maliciousness). The main feature of these cases is the presence of damage to the bankruptcy estate, the Supreme Court pointed out.

In the dispute considered by the courts, the seller transferred the mortgaged property to the buyer on account of repayment of 44 million rubles from the amount of the unreturned advance payment. The courts have not established that the property transferred by the debtor was worth more than the mentioned amount. This is why it is impossible to say that such a transaction was likely to harm creditors. Therefore, one cannot hold the trustee liable.

The fact that the court ruling refusing to recognize the disputed transaction invalid actually concluded that the manager’s actions were illegal does not bind the court in bringing the manager to responsibility. The SC pointed out that the court is not bound by the legal qualification formulated by another court. By virtue of Art. 69 of the APC only facts, but not their legal assessment may be prejudicial.

The ruling was made on the complaint of Tatyana Lobova. She was the bankruptcy manager of the company “New Wave” (bankruptcy case No. A33-8678/2016).

“Novaya Volna” committed to supply the company “LogisticsTrade” 2,800 tons of wooden sticks for ice cream. “LogisticsTrade paid 69 million rubles in advance to Novaya Volna.

In January 2015, the parties entered into a pledge agreement for Novaya Volna’s equipment and machines. In June 2015, the parties entered into a foreclosure agreement. Pursuant to this agreement, Novaya Volna transferred the pledged property to LogisticaTrade against payment of 44 million rubles of the amount of the unpaid advance payment. The requirement to return the remaining part of the advance (in the amount of 24 million rubles) was subsequently included in the register of creditors of “Novaya Volya”.

In October 2016, Novaya Volya was declared bankrupt. Tatyana Lobova was appointed bankruptcy trustee. She acted as a trustee from October 2016 to August 2017.

After her, managing directors were Andrei Kirichenko (until January 2019) and Denis Milyakov (until now).

While Andrey Kirichenko was performing the duties of the manager, he filed a claim to contest the pledge agreement and the foreclosure agreement that had been entered into with LogisticaTrade. The courts dismissed this claim, citing the lapse of the statute of limitations.

They pointed out that Tatiana Lobova had not fulfilled her obligations. The courts also noted that if the limitation period for a claim for recognition of a transaction as invalid was missed through the fault of the manager, then he may be charged with the damages.

After Denis Milyakov took over the position of the managing director, he filed a claim for recovery of damages from Tatyana Lobova.

The courts upheld his claims. They pointed out that the fact of improper performance of her duties by Tatyana Lobova was recorded in the court’s decision to deny the recognition of the disputed transactions void.

The SC did not agree with this approach and refused to hold Tatyana Lobova liable.

Source: https://zakon.ru/discussion/2022/06/23/otvetstvennost_upravlyayuschego_zavisit_ot_

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