The bankruptcy estate of the debtor: the concept, powers and rights of the manager, the scheme for filing a bankruptcy declaration and bidding

2024 Author: Howard Calhoun | [email protected]. Last modified: 2023-12-17 10:16

If the borrower cannot repay all the claims of creditors on time and in full, then by a court decision he may be declared bankrupt. In this case, the bankruptcy estate of the debtor is assessed. All property owned by the enterprise at the time of commencement of bankruptcy proceedings is subject to valuation. The proceeds from the sale of these facilities are used to pay off the debt.

Legal

The procedure for the formation and evaluation of the bankruptcy estate is prescribed in the Federal Law No. 127 “On the Insolvency of the Borrower”. The register includes all property recorded on the balance sheet of the enterprise and identified in the course of production. Very often seized objects undergo changes. Some of them can be returned to the debtor, and the second is included in the bankruptcy estate, as it can be used to pay off the debt. Objects withdrawn from civil circulation, property rights, social funds, leased premises fall under the exception. Lack of ownership of objects must be documented.

Manager

The responsibility for the formation of the bankruptcy estate lies with the manager, who is appointed by the court. The main goal of this measure is the proportionate satisfaction of creditors' claims. The procedure itself lasts up to one year, but if there are grounds, it can be extended for another 6 months. Therefore, the applicant must not only understand the essence of the bankruptcy procedure, but also meet a number of requirements. The manager acts as a steward of the property. He must compile a register of objects, evaluate them and propose a scheme for distributing funds from the sale of property.

Manager functions:

Carrying out activities aimed at the safety of the bankruptcy estate, in particular the seizure of property

Search for objects owned by the debtor and managed by third parties for the purpose of concealment

Publishing information on bankruptcy, compiling a register of creditors, making settlements with them

Evaluating property at market value and compiling an inventory

Providing the court with reports on the sale of property and settlements with creditors. On the basis of this document, information on the liquidation of a bankrupt enterprise is entered into the register

Powers and rights of the manager

The list is quite large:

• Assessing and securing the debtor's property.
• Search for hidden property and its return to the competitivemass.
• The right to dispose of the debtor's property within the framework of obligations.
• Search and collection of debts against the debtor.
• Involvement of third parties in the production and payment for their services at the expense of the debtor.
• Compilation of the register of debtors.
• Concluding transactions with the permission of creditors, holding meetings with them.
• Presenting claims against persons bearing subsidiary liability.
• Providing a monthly performance report at all stages of production.
• Compensation for losses caused to creditors through the fault of the manager.
• Right to apply for suspension.
• The right to be rewarded for your work.

Reporting

During the entire proceedings, the manager submits to the court a report on the sale of objects, documents on the repayment of creditors' claims. Also, the manager is obliged to report to the committee of creditors, if there are more than 50 of them. He also appoints all meetings, within which all issues of bankruptcy proceedings are resolved.

Control over the activities of the manager is assigned to the arbitration court and the committee. They can also decide to remove the manager if they take place (Article 144 of the Federal Law):

1. Dishonest performance of duties.

2. Causing damage and refusing to pay for it.

3. Manager's incompetence.

4. Violation of the interests of creditors.

5. Identification of the circumstances under which a person cannot exercise hispowers, namely:

• Having a personal interest in the case.
• Causing damages in other cases and not recovering them.
• Open bankruptcy proceedings against the manager.
• Persons with administrative pen alties.

Special types of debtor's property

Special requirements apply to strategically important and social facilities. Thus, the manager of the bankruptcy estate must ensure their safety and intended use. If in relation to this property the new owner decided to provide paid services, then their tariffing should be carried out within the framework of the law. These features should be taken into account when objects are included in the bankruptcy estate.

The property register includes:

1. Fixed assets: items of durable use, for a period of at least a year: technical equipment, buildings, structures, tools, vehicles.
2. Current assets are tangible assets used up to one year within one production cycle.
3. Intangible assets are patents, trademarks, brands, software, intellectual property that have generated profits.
4. Debts of third parties for unpaid services.

Announcement

If a company declares itself bankrupt, then to document this fact, you need to publish information in the media. A declaration of insolvency can be made as part of the liquidation process. At the same time, the legal entity should not have enough funds to carry outall settlements with creditors. Official publication is necessary for the correct conduct of the liquidation process in order to inform all creditors about bankruptcy.

The announcement must be published in the newspaper "Kommersant" with the filing of the head or representative of the organization or employee of the Federal Tax Service. Such an opportunity appears for creditors and depositors if the debt exceeds 100 thousand rubles. before another enterprise or 10 thousand rubles. before the depositor, and the payment was due more than 3 months ago.

Ad Requirements

Announcement must contain:

• Exact company name.
• Her legal status.
• The stage of external management.
• Financial insolvency information.
• Financial recovery process.
• Decision to open bankruptcy proceedings.
• Data on closing bankruptcy proceedings.

All information must be reliable and documented. Otherwise, the arbitration court may refuse the demand to collect the debt and hold the trustee liable for false information.

Feed pattern

There is a clear algorithm for posting. A well-written announcement must be signed by the head of the enterprise. A separate copy of the message must be completed by hand. The electronic version of the document should be submitted to the publication. You should also provide documents confirming the rights of managers.

Announcement is accepted for publication whenstock:

• Copies of PSRN and TIN.
• Two copies of the message.
• Document containing the court decision and its copies.
• Accurate description of events taking place in the bankrupt company at the time of publication.
• Receipts for payment for services (180 rubles per 1 cm2 ad space).

Features of the publication procedure

General information:

• Information is updated in the source every Saturday.
• The application is submitted electronically through the Kommersant website.
• All official information about bankrupts has been archived since 2004, access to which is open on the website.
• All publication costs are paid by the debtor.
• Applications and payments are accepted a maximum of three days before the release of the issue (that is, until 14:00 on Wednesday inclusive). By law, the bankruptcy trustee must publish an announcement within 10 days after appointment.
• If there are spelling or punctuation errors in the text, editors may reject the application.
• On the newspaper's website, you can find information on whether the organization is bankrupt by SRO, organizer, bankruptcy trustee or case number.

Trading

All bankruptcy estate presented in the register in case of bankruptcy must be assessed at market value. For this purpose, appraisers may be involved, whose services are paid by creditors. Appraised properties go up for auction. The procedure for the sale of property is detailed in Art. 84 FZ. Realization of the debtor's property from the bankruptcy estatecarried out at open auction. Information about bankruptcy and information about property 30 days before the auction, the manager is obliged to publish in the media. The starting price is fixed at market value. The place of the auction is determined by the general meeting of creditors.

Due to large encumbrances, in practice, no one buys an asset for the first three months. At each subsequent auction, the price is reduced by 10%. The auctions themselves are held with an increase in price. According to statistics, property is often sold after 3-4 procedures with a 30-40% discount.

The new bill proposes an alternative bidding procedure. The property will have an initial selling price and a floor price. If no applications are received at the first stage, the price will be reduced by 10% or to the minimum level. This will significantly increase the chances of holding the first successful auction and reduce the cost of financing the bankruptcy estate. At the same time, there is a danger that large creditors will abuse their influence in the presence of loy alty on the part of the manager. In addition, the Ministry of Economic Development reduces the timing of the auction to 40 days from the date of the decision to hold it. Here are some changes that could happen in the codex in the near future.