RESOLUTION OF THE PLENUM OF THE SUPREME ARBITRATION COURT OF THE RUSSIAN FEDERATION

of July 23, 2009 No. 58

About some questions connected with satisfaction requirements of the pawnbroker in case of bankruptcy of the pledger

Due to the questions arising in court practice connected with satisfaction requirements of pawnbrokers in the procedures applied in cases on bankruptcy and for the purpose of ensuring uniform approaches to application of relevant provisions of the Federal Law of 26.10.2002 N 127-FZ "About insolvency (bankruptcy)" * (further the Bankrupcy law, the Law) the Plenum of the Supreme Arbitration Court of the Russian Federation, being guided by article 13 of the Federal constitutional Law "About Arbitration Courts in the Russian Federation", decides to give to Arbitration Courts (further - courts) the following explanations.

In the resolution in the absence of special specifying on other references to provisions of the Bankrupcy law are given in edition of the Federal Laws of 30.12.2008 N 296-FZ "About introduction of amendments to the Federal law "About Insolvency (Bankruptcy)", of 30.12.2008 N 306-FZ "About modification of some legal acts of the Russian Federation in connection with enhancement of procedure for the address of collection on pledged property", of 28.04.2009 N 73-FZ "About modification of separate legal acts of the Russian Federation", of 19.07.2009 N 195-FZ "About modification of separate legal acts of the Russian Federation".

1. By consideration of question of establishment and inclusion in the register of requirements of the competitive creditors provided with pledge of property of the debtor (further - mortgage creditors), courts need to consider the following.

If the requirement of the pawnbroker about the address of collection of pledged property was not considered by court earlier, then the court in case of establishment of requirements of the creditor checks whether there was right of the pawnbroker in accordance with the established procedure (whether there is proper pledge agreement whether there came the circumstances attracting emergence of pledge by law), whether it stopped on the bases, stipulated by the legislation, whether the debtor has pledged property in nature (whether the possibility of the address of collection on it remains).

During establishment of requirements of the mortgage creditor in the presence of court resolution about the address of collection the court checks the specified circumstances for pledged property, except for those which concern emergence of the right of the pawnbroker.

If the pledged property was disposed from ownership of the pledger, including as a result of its alienation, but the right of pledge remains, then the pawnbroker has the right to exercise the right by means of presentation of the claim to the owner of property. In this case the court refuses to the creditor establishment of its requirements in the case of bankruptcy as the requirements provided with pledge of property of the debtor.

Establishing requirements of the mortgage creditor, the court considers that according to Article 337, Item 1 of Article 339 of the Civil code of the Russian Federation (further - the Civil Code of the Russian Federation) the obligation of the debtor is recognized secure pledge in general irrespective of pledge subject assessment (except for case when the obligation was provided with pledge not in full but only in part).

In case of establishment of requirements of the pawnbroker in the case of bankruptcy provisions of Item 2 of article 348 Civil Code of the Russian Federation about the bases for refusal in the address of collection on pledged property are not applied.

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