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of June 6, 2014 No. 36

About some questions, the bank accounts of persons which are in insolvency proceedings linked with maintaining by credit institutions

Due to the questions arising in court practice connected with maintaining by credit institutions bank accounts of persons which are in insolvency proceedings, the Plenum of the Supreme Arbitration Court of the Russian Federation, being guided by article 13 of the Federal constitutional Law of 28.04.1995 No. 1-FKZ "About Arbitration Courts in the Russian Federation", decides to give to Arbitration Courts (further - courts) the following explanations:

1. By consideration of disputes on legitimacy of transactions of credit institutions on accounts of persons which are in insolvency proceedings, courts it is necessary to consider that owing to paragraphs two and the fourth Item 1 and Item 2 of Article 63, of paragraphs two and the fifth Item 1 of Article 81, of paragraphs of the seventh and eighth Item 1 of Article 94, of paragraph two of Item 2 of Article 95, paragraphs of the fifthof - the seventh and the tenth Item 1 of article 126 of the Federal Law of 26.10.2002 No. 127-FZ "About insolvency (bankruptcy)" (further - the Bankrupcy law, the Law) in case of receipt in credit institution of any order of any person about transfer (transfer) or issue of money from customer account concerning which insolvency proceeding is entered (further - the debtor) (except for orders external or the receiver of this debtor), the credit institution has the right to accept such order to execution and to perform it only provided that at this order or in documents, attached to it, the data confirming reference of the paid requirement of the receiver of money to the current payments (article 5 of the Law) or to other requirements according to which the payment from the account of the debtor is allowed during the corresponding procedure (the paragraph the fourth Item 1 of Article 63, the paragraph the fifth Item 1 of Article 81, paragraph two of Item 2 and Item 5 of article 95 of the Law) (further - the permitted payments) contain. Such check is performed, in particular, concerning payment orders and checks of the debtor (in procedures of observation or financial improvement), collection orders (including tax authorities) and the executive documents (which arrived both from the bailiff, and from the claimant according to the procedure of article 8 of the Federal Law of 02.10.2007 No. 229-FZ "About enforcement proceeding").

By consideration of question of whether such inspection was carried out properly, courts need to recognize that the credit institution performs this check on formal grounds. If the order or documents attached to it do not contain the called data, or these data are contradictory or if from them it is visible that the paid requirement does not belong to the permitted payments (for example if the judgment about repayment of the loan based on which the executive document was issued is accepted before initiation of proceedings about bankruptcy), then the credit institution has no right to perform the order - it is subject to return to the provided his face with indication of the reason of its return.

Specifying in itself on hand or the documents of the words "current payment" attached to it, etc. is not enough for acceptance by its credit institution for execution; in these documents the specific data confirming reference of the obligation to flowing (for example, the paid period of lease, date of transfer of goods on superimposed, specific tax period or date of its termination are in addition specified (for tax), etc.).

The credit institution does not consider on the substance of the debtor's objection against indisputable write-off, including the outstanding amounts based on arguments about incorrect specifying by the claimant or the moment of its origin.

2. If owing to violation by credit institution of the provisions of the Bankrupcy law specified in Item 1 of this resolution, money of the debtor is listed or issued to the creditor whose requirement does not belong to the permitted payments (for example, to the competitive creditor or authorized body which requirement arose before initiation of proceedings about bankruptcy), then the debtor (including on behalf of external or the receiver) has the right to demand from credit institution of indemnification, caused by illegal cash write-off from the account of the debtor, in the amount of written-off amount in connection with violation of the agreement obligations of the bank account by bank (Articles 15, 393, 401 Civil code of the Russian Federation; further - the Civil Code of the Russian Federation).

Violation from credit institution is absent if the documents submitted for cash write-off met the criteria specified in Item 1 of this resolution. Cannot be collected by the debtor from credit institution of the amount, written off in situation when the submitted documents contained data which unauthenticity could not be found in case of formal check (including if person which provided them included in them obviously false information).

2.1. The credit institution performs duty to pay damages only provided that by the time of cash write-off she knew or shall know that concerning the debtor insolvency proceeding is entered. If by this moment of the data on introduction of such procedure were published in the corresponding official publication or are included in the Unified Federal Register of Bankruptcy Information (Article 28 of the Bankrupcy law), then it is supposed that the credit institution shall know about it (including taking into account the electronic information collection systems which are available in turnover).


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