Commentary by Olga Pleshanova on PRObankrotstvo
How to calculate compensation for secured creditors in developer's bankruptcy case: based on a single value of the collateral or calculated for each house separately?
The bankrupt's property (including land plots with unfinished houses) was transferred to the Fond razvitiya territorii (FRT) for completion of construction. Secured creditors (participants in shared construction who entered into agreements before the transition to escrow accounts) demanded compensation.
The courts of first and appellate instances calculated compensation based on the total value of all property transferred to the Fund. The district court ruled differently: the pledge of creditors' claims is tied to specific houses and plots, so compensation must be calculated separately for each of them. Arbitrary netting violates the interests of the TDF and other creditors.
The Supreme Court will consider this contentious issue on September 29th.
"...The cassation court rightly drew attention to the fact that in relations with the FRT, equity holders simultaneously act as creditors for claims for the transfer of apartments (claims are included in the register of creditors) and as secured creditors. This, of course, creates confusion, increases risks and creates unimaginable problems for the court, which cannot allow duplicate claims," explained Olga Pleshanova, Head of the Analytical Service at Infralex.
The expert explained how these legislative contradictions were formed and what role in the history of the issue was played by:
- Ruling of the Supreme Court of the Russian Federation of April 16, 2018 No. 305-ES16-10864 on the absence of a full-fledged collateral for equity holders;
- Federal Law of June 27, 2019 No. 151-FZ (Part 14 of Article 16), which canceled compensations to mortgagees;
- Resolution of the Constitutional Court of the Russian Federation of July 21, 2022 No. 34-P on the provision of compensation to secured creditors by the purchaser of an unfinished building;
- Federal Law of August 8, 2024 No. 282-FZ on the restoration of the rights of mortgagees of developers' property and the calculation of compensation to previously secured creditors.