The bankruptcy trustee’s obligation to challenge the debtor’s transactions

A bankruptcy creditor of OOO OTiS filed a complaint with the court against the actions of the bankruptcy trustee. The plaintiff also demanded that he be removed from his duties. Among other things, the plaintiff asserted that the bankruptcy trustee had failed to dispute a number of the debtor’s transactions.

The two courts upheld the claim.

Position of the cassation:

– However, the courts did not take into account that the Bankruptcy Law does not establish an unconditional obligation of a bankruptcy trustee to apply to the court with an application to challenge the debtor’s transactions. The activity of a bankruptcy trustee to fill the bankruptcy estate must be rational, avoiding pointless formal actions resulting in an unjustified increase in the costs of bankruptcy procedures and other current payments, to the detriment of the bankruptcy estate and the interests of creditors. The inaction of the trustee, who did not see any real prospects in disputing the transactions, the grounds for bringing the controlling persons to subsidiary responsibility, cannot be declared unlawful;

– In view of the above in this part of the dispute the following circumstances should be established: date and conditions of making transactions, which, according to the creditor, are subject to challenge; their specification; the presence of sufficient grounds to believe in the invalidity (suspicious or preferable) transactions and the existence of legal grounds for the claim on bringing the debtor’s controlling persons to subsidiary liability; probability of such applications and possible consequences, including the amount of funds, which are subject to subsidiary liability.

The judicial acts were quashed in part, and the case was sent for a new hearing.

Decision of the Arbitration Court of the West of Russia of 05.08.22 in case No. A46-21548/2017.