Each bank owner can have an account or deposit in their own bank. However, can a bank owner become a first-line creditor in the bankruptcy of their own bank? By the decision of the AC SPb and LO of 26.10.2020 in case no. A56-140063/2018 / vozr. 2, the claims are that the former Chairman of the Management Board of the International Bank of St. Petersburg Bazhanov S. V. and his wife Bazhanova T. V. were included in the first place in the register of claims of the Bank's creditors in the amount of more than 1 billion rubles.
On 27.05.2021, the court of cassation returned to the question of including the Bazhanovs ' claims for a new consideration. The court applied the Review of the practice of the Supreme Court of the Russian Federation on the claims of affiliated persons from 29.01.2020.
The above-mentioned Review of the Practice of the Supreme Court of the Russian Federation of 29.01.2020 has been widely used in cases of bankruptcy of legal entities, however, I have not personally met with cases of application of these clarifications in the bankruptcy of credit institutions. I believe this is due to the fact that the persons controlling the bank in the run-up to bankruptcy, as a rule, tend to take money from the accounts, rather than deposit it into the accounts. Therefore, in the bankruptcy of banks, we are dealing with a large number of applications for challenging payments made with preferential satisfaction under Article 61.3 of the GOITER. At the same time, the deposit of funds and their further spending can be coordinated, which, of course, should be investigated by the court when including the claims of affiliated creditors in the register.
We used to think that the bank is a formalized structure with a large number of bureaucratic barriers that should prevent all kinds of abuse. The presence of a regulator in the form of the Central Bank of the Russian Federation is also intended to contribute to this. However, on closer inspection, you can see that the abuses are still the same, only their scale changes.
So, according to the DIA and creditors, already during the property crisis, the bank's shareholder opened deposits in it for a total amount of 1 billion rubles, thereby guaranteeing a place in the first stage of the register of claims in the upcoming bankruptcy of the bank. I will not go into the issues of proving the occurrence of a crisis situation, this is a subject for a separate article. I will note another important feature: the funds deposited in deposits can be used by the bank to execute payment orders of other bank clients. For subordination, the source of origin of the funds provided to the debtor is not essential. Regardless of the source of the funds, making deposits should be recognized as financing the debtor during the crisis, since it gives current liquidity to the bank for the execution of payment orders.
Also, the circumstances of the bank's further spending of funds are important, namely, the execution of payment orders of the bank's clients in the run-up to bankruptcy. In the bankruptcy case of IBSP, there are a number of disputed payments to companies affiliated with the debtor, in particular for 40 million and 61 million rubles. Also under consideration are the applications of the DIA to challenge payments to one of the bank's shareholders in the amount of 1.1 billion, made less than a month before the introduction of the interim administration. Thus, the funds deposited by the controlling person could later be directed to the preferential satisfaction of the claims of the third-stage creditors affiliated with it. The coordination of actions in this case led to the fact that the controlling person changed the order of repayment of their claims from the third to the first. The choice of the financing structure, taking into account the subsequent bankruptcy, is the basis for lowering the priority of the controlling persons ' claims. I believe that these issues will be the subject of consideration in the court of first instance after the return of the case from the court of cassation.