The trustee was sued for damages because of his wrongful intentional omission

The court of the first instance recovered damages from the inactive bankruptcy trustee. However, the court of appeal and the court of the district decided that the trustee may not be held liable: he had not included the data on the transactions to be disputed in the opinion of the interim trustee, which was merely an informational document. The Supreme Court sided with the first instance, because in this dispute the trustee was aware of the withdrawal of assets, but did not take measures to return the property.

Bankruptcy case: No. A41-54740/2014, debtor Voskhod LLC

Judicial act: determination of the Supreme Court No. 305-ES16-16302 (5) of April 7, 2022

The essence of the dispute:

The bank and the tax service asked to recover damages from the bankruptcy trustee, previously prosecuted for unlawful omission in the performance of his powers (commercial bribery – paragraphs “c”, “d” part 7 article 204 of the Criminal Code of Russia).

The court of first instance agreed with the plaintiffs, believing that the inactivity of the trustee had prevented the return of the property transferred to the debtor’s bankruptcy estate.

However, on appeal and at the district court it was decided that the receiver should not be held liable. Thus, the failure to include the contracts as transactions subject to challenge in the opinion of the interim manager does not mean that the debtor incurred losses, since this opinion is of an informative nature.

The right to challenge the transactions, the courts noted, was vested in the bankruptcy trustee, whose powers the defendant had exercised for several months. However, the bankruptcy trustee who replaced him had enough time to challenge the transactions within the statute of limitations period.

Position of the Supreme Court:

The Supreme Court noted that in a particular dispute, the defendant knew: the transactions between the debtor and the company were aimed at a gratuitous withdrawal of assets. However, he did not take steps to recover the assets. Any reasonable and bona fide trustee in such a situation would have immediately begun to challenge the transactions and asked for interim measures.

The subsequent bankruptcy trustee’s challenge of the transactions did not lead to a positive result, since at that time the property had already been alienated by the company to third parties, and the recovered funds had not actually reached the bankruptcy estate.

The Supreme Court pointed out that the damage in the form of loss of opportunity to add to the bankruptcy estate would not have arisen if the defendant had acted lawfully. Therefore, there was a direct causal link between the manager’s intentional wrongful omission and the damage.

The trial court’s ruling was upheld.

Source: https://legaltop.ru/overview/s-upravlyayushchego-vzyskali-ubytki-iz-za-ego-protivopravnogo-umyshlennogo-bezdeystviya-/