Bankruptcy secured creditors – are privileges always good? Federal Arbitration Courts of the Russian Federation Pledged creditor without a monetary claim.

One of the most popular ways to secure credit obligations is collateral. At its expense, the pledgee has the right to recover the debt in case of non-fulfillment or delay in obligations by the debtor.

What is a secured creditor in a bankruptcy case?

The pledge lender is included in the group of bankruptcy creditors. It has a special legal status, which is associated with the full provision of its requirements with a property pledge. Initially, it is included in the third creditor queue, but it is also vested with the right to early satisfaction of claims through the sale of the subject of security at any stage of bankruptcy.

The secured creditor is entitled to an advantage in determining the procedure for the sale of the property of the legal entity-debtor upon its liquidation, but only in relation to the pledged property.

It is the pledgee who is the only participant in the bankruptcy case who has the right to collect the pledge. But from the moment the bankruptcy procedure is initiated in relation to the legal entity (starting with supervision), the recovery is carried out exclusively by a court decision.

During the court session, the judge checks the legal grounds for the collection of security, the legal purity of all documents and whether the debtor has collateral in reality.

The participant who owns the right to the debtor's property has the right to file a claim at any stage of bankruptcy, but if the company has stages of external management or financial recovery, there is a high risk of being refused. The position of the arbitration manager will play a key role, and if he proves that the company will not be able to continue its business activities without the subject of collateral and restore solvency, the pledgee will be refused. Such situations are far from uncommon: fixed assets, machines, equipment, etc. can be pledged.

Claims of a secured creditor

In order to receive its exceptional opportunities, the claims of the secured creditor as a participant in the bankruptcy process must be included in the register. If he misses the deadline for applying for the debtor's obligations to him, he will also receive a refund. But already within the proceeds remaining after meeting the requirements included in the register. The creditor is assigned only an advantage over other latecomers.

A kind of payment for the preferential satisfaction of claims is the absence of a vote by the pledgee at creditor meetings. The vote is reserved for him in the following cases:

he waived the right to bail;
in case of loss of competitive status;
The court denied him bail.

But such an opportunity is provided only at the stages of external management or rehabilitation and is not allowed during bankruptcy proceedings. The secured creditor has the right to influence the course of the said procedures and make decisions within the competence of the creditors' meeting. Practice shows that most of the participants prefer to retain the voice and status of an insolvent person influencing the development of a bankruptcy case.

Refusal does not mean a complete rejection of collateral, only the realization of one's advantage. With this option, the pledgee gets the opportunity to first recover the debt in the amount of 75% of the amount of funds received from the sale of the collateral at the auction.

The pledgee loses his vote at creditors' meetings in cases where elements of his privileged status remain, even after the sale of the pledged property. For example, the collateral has already been sold and part of the funds has been distributed among other registry participants to pay off the debtor's obligations to them. And now the former secured creditor wants to receive satisfaction of his claims in the part that went to repay the claims of other creditors, from the proceeds from the sale of other unmortgaged property of the debtor. It is believed that he cannot participate in the voting on such an issue.

If there are several creditors secured by property, they vote in such a way that in the total mass of their votes they do not exceed the estimated value of the pledge. Otherwise, the rights of other participants in the bankruptcy case are violated.

Obligations of the mortgagee

In addition to exclusive rights, the secured creditor is endowed with a number of obligations:

collection of property from the debtor;
refuse to sell the collateral when receiving a vote at the meeting;
if a decision is made to sell the security at auction, the pledgee must determine the procedure and the most important conditions;
provided that the property could not be sold at auction, the secured creditor may express a desire to accept it and is obliged to notify the bankruptcy trustee about this.

Sale of collateral

The property of a legal entity is sold through auctions, the conditions and procedure for which are determined to a certain extent by participants with secured monetary claims. The terms for concretizing the conditions in the law are not spelled out.

If the pledgee decides not to use his right, then the obligation to determine the conditions for the sale is shifted to the arbitration court. Neither the manager nor the meeting of creditors is endowed with such a prerogative. Arbitration also considers disputes and disagreements that have arisen between the parties (for example, if one of the participants believes that the proposed bidding procedure may prevent access to potential buyers or reduce possible revenue).

When during the auction it was not possible to sell the things of a legal entity, then a second auction is scheduled, at which the initial price is reduced by 10% to the estimated value. If the repeated auctions did not lead to results, then they are recognized as failed. The security is then transferred to the mortgagee and he decides on the further ownership of this property.

If the pledgee decides to keep the collateral for himself, 25%-30% of the value is transferred to the special account of the debtor. If he refuses to accept it, then the property is realized through a public offer.
Upon successful sale at the auction, the funds are subject to distribution between the pledgee (in whose favor at least 70% of the proceeds received are transferred) and for other expenses. The remaining 30% are sent to the debtor's special account.

But if the debtor owes him a smaller amount, then only the debt is transferred to his current account, including the principal debt and the interest accrued during this time.

When property acts as collateral for several entities at the same time, the proceeds are distributed among them in proportion to the shares.

1.1. This document defines the policy of the Limited Liability Company "" (hereinafter referred to as the Company) regarding the processing of personal data.

1.2 This Policy has been developed in accordance with the current legislation of the Russian Federation on personal data.

1.3 This Policy applies to all processes for the collection, recording, systematization, accumulation, storage, clarification, extraction, use, transfer (distribution, provision, access), depersonalization, blocking, deletion, destruction of personal data, carried out using automation tools and without the use of such funds.

1.4. The policy is strictly followed by the Company's employees.

Definitions

Personal Information- any information relating directly or indirectly to a specific or identifiable natural person (subject of personal data);

operator- a state body, a municipal body, a legal entity or an individual, independently or jointly with other persons organizing and (or) carrying out the processing of personal data, as well as determining the purposes of processing personal data, the composition of personal data to be processed, actions (operations) performed with personal data;

processing of personal data- any action (operation) or a set of actions (operations) performed using automation tools or without using such tools with personal data, including collection, recording, systematization, accumulation, storage, clarification (updating, changing), extraction, use, transfer (distribution, provision, access), depersonalization, blocking, deletion, destruction of personal data;

automated processing of personal data- processing of personal data using computer technology;

dissemination of personal data- actions aimed at disclosing personal data to an indefinite circle of persons;

provision of personal data- actions aimed at disclosing personal data to a certain person or a certain circle of persons;

blocking of personal data- temporary suspension of the processing of personal data (unless the processing is necessary to clarify personal data);

destruction of personal data- actions, as a result of which it becomes impossible to restore the content of personal data in the personal data information system and (or) as a result of which material carriers of personal data are destroyed;

depersonalization of personal data- actions, as a result of which it becomes impossible to determine the ownership of personal data by a specific subject of personal data without the use of additional information;

personal data information system- a set of personal data contained in databases and information technologies and technical means that ensure their processing.

Principles and conditions for the processing of personal data

3.1. The processing of personal data is carried out on the basis of the following principles:

1) The processing of personal data is carried out on a legal and fair basis;

2) The processing of personal data is limited to the achievement of specific, predetermined and legitimate purposes. It is not allowed to process personal data that is incompatible with the purposes of collecting personal data;

3) It is not allowed to combine databases containing personal data, the processing of which is carried out for purposes that are incompatible with each other;

4) Only those personal data that meet the purposes of their processing are subject to processing;

6) When processing personal data, the accuracy of personal data, their sufficiency, and, if necessary, their relevance in relation to the stated purposes of their processing, are ensured.

7) The storage of personal data is carried out in a form that allows you to determine the subject of personal data no longer than required by the purposes of processing personal data, if the period for storing personal data is not established by federal law, an agreement to which the subject of personal data is a party, beneficiary or guarantor. Processed personal data is subject to destruction or depersonalization upon achievement of the purposes of processing or in case of loss of the need to achieve these purposes, unless otherwise provided by federal law.

8) The Company in its activities proceeds from the fact that the subject of personal data provides accurate and reliable information during interaction with the Company and notifies the Company's representatives about changes in their personal data.

3.2. The company processes personal data only in the following cases:

processing of personal data is carried out with the consent of the subject of personal data to the processing of his personal data;
the processing of personal data is carried out in connection with the participation of a person in constitutional, civil, administrative, criminal proceedings, proceedings in arbitration courts;
the processing of personal data is necessary for the execution of a judicial act, an act of another body or official subject to execution in accordance with the legislation of the Russian Federation on enforcement proceedings (hereinafter referred to as the execution of a judicial act);
the processing of personal data is necessary for the performance of an agreement to which the subject of personal data is a party or beneficiary or guarantor, as well as to conclude an agreement on the initiative of the subject of personal data or an agreement under which the subject of personal data will be the beneficiary or guarantor;
the processing of personal data is necessary to protect the life, health or other vital interests of the subject of personal data, if obtaining the consent of the subject of personal data is impossible;

3.4. The Company has the right to entrust the processing of personal data of citizens to third parties, on the basis of an agreement concluded with these persons.
Persons processing personal data on behalf of Start Law Company LLC undertake to comply with the principles and rules for the processing and protection of personal data provided for by Federal Law No. 152-FZ "On Personal Data". For each person, a list of actions (operations) with personal data that will be performed by a legal entity processing personal data, the purposes of processing, the obligation of such a person to maintain confidentiality and ensure the security of personal data during their processing, as well as requirements for the protection of processed personal data data.

3.5. If the Company entrusts the processing of personal data to another person, the Company shall be liable to the subject of personal data for the actions of the said person. The person who processes personal data on behalf of the Company is liable to the Company.

3.6. The Company does not make decisions on the basis of exclusively automated processing of personal data that give rise to legal consequences in relation to the subject of personal data or otherwise affect his rights and legitimate interests.

3.7. The Company destroys or depersonalizes personal data upon reaching the purposes of processing or in case of loss of the need to achieve the purpose of processing.

Subjects of personal data

4.1. The company processes personal data of the following persons:

employees of the Company, as well as entities with whom contracts of a civil law nature have been concluded;
candidates to fill vacant positions in the Company;
clients of LLC Legal company "Start";
users of the website of LLC Legal Company "Start";

4.2. In some cases, the Company may also process personal data of representatives of the above personal data subjects authorized on the basis of a power of attorney.

Rights of personal data subjects

5.1. The subject of personal data whose data is processed by the Company has the right to:

5.1.1. Receive the following information from the Company within the terms provided by the Law:

confirmation of the fact of personal data processing by Start Legal Company LLC;
on the legal grounds and purposes of processing personal data;
on the methods used by the Company for processing personal data;
about the name and location of the Company;
about persons who have access to personal data or to whom personal data may be disclosed on the basis of an agreement with Start Law Company LLC or on the basis of federal law;
a list of processed personal data relating to the citizen from whom the request was received and the source of their receipt, unless a different procedure for providing such data is provided by federal law;
on the terms of processing personal data, including the terms of their storage;
on the procedure for the exercise by a citizen of the rights provided for by the Federal Law "On Personal Data" No. 152-FZ;
name and address of the person who processes personal data on behalf of the Company;
other information provided for by the Federal Law "On Personal Data" No. 152-FZ or other federal laws.

5.1.2. Require clarification of their personal data, their blocking or destruction if the personal data is incomplete, outdated, inaccurate, illegally obtained or not necessary for the stated purpose of processing.

5.1.3. Withdraw your consent to the processing of personal data.

5.1.4. Demand the elimination of illegal actions of the Company in relation to his personal data.

5.1.5. Appeal against the actions or inaction of the Company to the Federal Service for Supervision of Communications, Information Technology and Mass Communications or in court if a citizen believes that Start Law Company LLC is processing his personal data in violation of the requirements of Federal Law No. 152- Federal Law "On Personal Data" or otherwise violates his rights and freedoms.

5.1.6. To protect their rights and legitimate interests, including compensation for losses and / or compensation for moral damage in court.

Company Responsibilities

6.1. In accordance with the requirements of Federal Law No. 152-FZ “On Personal Data”, the Company is obliged to:

Provide the subject of personal data, at his request, with information regarding the processing of his personal data, or legally provide a reasoned refusal containing a reference to the provisions of the Federal Law.
At the request of the subject of personal data, clarify the processed personal data, block or delete if the personal data is incomplete, outdated, inaccurate, illegally obtained or not necessary for the stated purpose of processing.
Maintain a Register of Personal Data Subjects’ Applications, which should record the requests of personal data subjects for obtaining personal data, as well as the facts of providing personal data on these requests.
Notify the subject of personal data about the processing of personal data in the event that personal data was not received from the subject of personal data.

The following cases are an exception:

The subject of personal data is notified of the processing of his personal data by the relevant operator;

Personal data is obtained by the Company on the basis of federal law or in connection with the execution of an agreement to which the subject is a party or beneficiary or guarantor.

Personal data obtained from a public source;

Providing the subject of personal data with the information contained in the Notice on the processing of personal data violates the rights and legitimate interests of third parties.

6.2. If the purpose of processing personal data is achieved, the Company is obliged to immediately stop processing personal data and destroy the relevant personal data within a period not exceeding thirty days from the date of achieving the purpose of processing personal data, unless otherwise provided by the agreement, the party to which, the beneficiary or the guarantor of which is the subject personal data, another agreement between the Company and the subject of personal data, or if the Company is not entitled to process personal data without the consent of the subject of personal data on the grounds provided for by No. 152-FZ "On Personal Data" or other federal laws.

6.3. In the event that the subject of personal data withdraws consent to the processing of his personal data, the Company is obliged to stop processing personal data and destroy personal data within a period not exceeding thirty days from the date of receipt of the said withdrawal, unless otherwise provided by an agreement between the Company and the subject of personal data. The Company is obliged to notify the subject of personal data about the destruction of personal data.

6.4. In the event of a request from the subject to stop processing personal data in order to promote goods, works, services on the market, the Company is obliged to immediately stop processing personal data.

6.5. The Company is obliged to process personal data only with the consent in writing of the subject of personal data, in cases provided for by the Federal Law.

6.7. The Company is obliged to explain to the subject of personal data the legal consequences of the refusal to provide his personal data, if the provision of personal data is mandatory in accordance with the Federal Law.

6.8. Notify the personal data subject or his representative of all changes regarding the relevant personal data subject.

Information about the implemented measures for the protection of personal data

7.1. When processing personal data, the Company takes the necessary legal, organizational and technical measures to protect personal data from unauthorized or accidental access to them, destruction, modification, blocking, copying, provision, distribution of personal data, as well as from other illegal actions in relation to personal data.

7.2. Ensuring the security of personal data is achieved, in particular:

determination of threats to the security of personal data during their processing in information systems of personal data;
the application of organizational and technical measures to ensure the security of personal data during their processing in personal data information systems necessary to meet the requirements for the protection of personal data, the implementation of which ensures the levels of personal data protection established by the Government of the Russian Federation;
the use of information security tools that have passed the conformity assessment procedure in the prescribed manner;
evaluating the effectiveness of the measures taken to ensure the security of personal data prior to the commissioning of the personal data information system;
taking into account machine carriers of personal data;
detecting facts of unauthorized access to personal data and taking measures;
recovery of personal data modified or destroyed due to unauthorized access to them;
establishing rules for access to personal data processed in the personal data information system, as well as ensuring the registration and accounting of all actions performed with personal data in the personal data information system;
control over the measures taken to ensure the security of personal data and the level of security of personal data information systems.
an assessment of the harm that may be caused to personal data subjects in the event of a violation of the legislation of the Russian Federation in the field of personal data, the ratio of the said harm and the measures taken to ensure the implementation of the legislation of the Russian Federation in the field of personal data.

Information about Arbitration Courts Intellectual Property Rights Court --- District Arbitration Courts -- Arbitration Court of the Volga-Vyatka District Arbitration Court of the East Siberian District AC of the Urals District AC of the Central District --- Arbitration Courts of Appeal -- 1st AAC 2nd AAC 3rd AAC 4th AAC 5th AAC 6th AAC 7th AAC 8th AAC 9th AAC 10th AAC 11th AAC 12th AAC 13th AAC 14th AAC 15th AAC 16th AAC 17th AAC 18th AAC 19th AAC 20th AAC 21st AAC -- - Arbitration courts of the subjects of the federation - AS PSP AS of the Perm Territory in the city of Kudymkar AS PSP AS of the Arkhangelsk region. in the Nenets Autonomous District AS of the Republic of Crimea AS of the city of Sevastopol AS of the Republic of Adygea AS of the Republic of Altai AS of Altai Territory AS of the Amur Region AS of the Arkhangelsk Region AS of the Astrakhan Region AS of the Republic of Bashkortostan AS of the Belgorod Region AS of the Bryansk Region AS of the Republic of Buryatia AS of the Vladimir Region AS of the Volgograd Region AS of the Vologda Region AS of the Voronezh Region CA of the Republic of Dagestan CA of the Jewish Autonomous Region CA of the Trans-Baikal Territory CA of the Ivanovo Region CA of the Republic of Ingushetia CA of the Irkutsk Region CA of the Kabardino-Balkaria Republic CA of the Kaliningrad Region CA of the Republic of Kalmykia CA of the Kaluga Region CA of the Kamchatka Territory AS of the Karachay-Cherkess Republic AS of the Republic of Karelia AS of the Kemerovo Region AS of Kirovskaya CA of the Republic of Komi CA of the Kostroma Region CA of the Krasnodar Territory CA of the Krasnoyarsk Territory CA of the Kurgan Region CA of the Kursk Region CA of the Lipetsk Region CA of the Magadan Region CA of the Republic of Mari El CA of the Republic of Mordovi AS of the city of Moscow AS of the Moscow Region AS of the Murmansk Region AS of the Nizhny Novgorod Region AS of the Novgorod Region AS of the Novosibirsk Region AS of the Omsk Region AS of the Orel Region AS of the Oryol Region AS of the Penza Region AS of the Perm Territory AS of the Primorsky Territory AS of the Pskov Region AS of the Rostov Region AS of the Ryazan Region AS of the Samara Region AS Cities of St. Petersburg and Leningrad Region AS of the Saratov Region AS of the Sakhalin Region AS of the Sverdlovsk Region AS of the Republic of North Ossetia-Alania AS of the Smolensk Region AS of the Stavropol Territory AS of the Tambov Region AS of the Republic of Tatarstan AS of the Tver Region AS of the Tomsk Region AS of the Tula Region AS of the Republic of Tyva AS of the Tyumen Region AS of the Udmurt Republic AS of the Ulyanovsk Region AS of the Khabarovsk Territory AS of the Republic of Khakassia AS of the Khanty-Mansiysk Autonomous Okrug - Yugra AS of the Chelyabinsk Region AS of the Chechen Republic AS of the Chuvash Republic - Chuvashia AS of the Chukotka Autonomous District AS of the Republic Sakha (Yakutia) AS of the Yamalo-Nenets Autonomous Okrug AS of the Yaroslavl Region

As part of the judicial reform, in accordance with the federal constitutional laws "On the Judicial System of the Russian Federation" and "On Arbitration Courts in the Russian Federation", a unified judicial system has been created in the country. It also includes arbitration courts with federal status.

Arbitration courts are specialized courts for resolving property, commercial disputes between enterprises. They also consider the claims of entrepreneurs for the invalidation of acts of state bodies that violate their rights and legitimate interests. These are tax, land and other disputes arising from administrative, financial and other legal relations. Arbitration courts consider disputes involving foreign entrepreneurs.

A secured lender is a company or private lender that has received certain property as collateral from a borrower. Usually, various real estate objects or cars act as collateral. The pledge is a guarantee that the recipient of funds will return the entire amount with accrued interest to the lender. Otherwise, he will lose his property, which will be sold at auction. Even if the borrower declares himself bankrupt, he is not released from the claims of various lenders. Claims of the creditor with whom the mortgage is drawn up are supported by collateral.

Status of secured creditor

He is a lender with certain rights to property owned by the borrower. It is only through the presence of a properly drawn up and registered mortgage that it is possible to collect a debt by selling a material value.

It is the pledgee who must prove that the debtor has a certain object in the property. If other lenders have objections, then the search for evidence is carried out by the appointed manager.

The pledgee has the right to receive his funds after the sale of the specific property on which the encumbrance was imposed. Such creditors are included in the third line of applicants. But due to guarantees, such a creditor can count on early repayment of the debt.

What role does it play?

The role of the secured lender is that it is he who decides what actions will be performed with a particular collateral. The process is carried out only if there is a delay in payment and the beginning of bankruptcy proceedings against the non-payer. The holder of the bond may waive his rights to vote at meetings.

The borrower has rights to the collateral that cannot be challenged by a court or an appointed trustee. Often, with the help of the manager, the restoration of the debtor's solvency is ensured, so he can continue to cope with his obligations. In this case, the property remains the property of the borrower.

What documents are being prepared?

The secured creditor may make claims against the debtor as part of declaring him bankrupt. He can act as the initiator of this process. In order for the pledgee to be recognized as an official creditor during bankruptcy proceedings, he must have evidence of an encumbrance on the debtor's property.

The following documents may be used as evidence:

an extract from the USRN, if the pledge was formalized, so the relevant information was entered in the register;
act of checking the premises or car;
extract from the Unified State Register of Legal Entities;
the act of seizing the pledged property;
act of inventory of material value;
reconciliation acts;
vehicle registration certificate;
inventory descriptions.

Only if the above documentation is available, the requirements of the secured creditor will be taken into account. It is on the basis of the decision made by the arbitration manager that the specific position of the creditor in the bankruptcy process is determined. If there is evidence that the debtor will be able to restore his solvency only with the help of collateral, then the pledgee will not be able to receive this item to pay off the debt. But this applies only to the situation when the debtor goes through the procedure of financial recovery.

Application rules

In order for a particular lender to be recognized as a pledge, he must submit an appropriate application to the court or arbitration manager. An application by a secured creditor can be drawn up in different situations:

the mortgagee may sue as an ordinary creditor who does not have a mortgage drawn up with the debtor, but will have to declare his position already in the process of production, and there is also a possibility of missing the deadline, so the lender will not be able to further participate in the process and enjoy any advantages;
from the very beginning, the creditor can prove that he has a pledge of property belonging to the debtor, which allows him to use certain guarantees, as well as receive funds immediately after the sale of this tangible item.

Banks most often use the second method, as this allows you to receive funds from the borrower promptly and in full.

What rights are granted?

The rights of a secured creditor are presented in the following forms:

taking direct part in bankruptcy proceedings, which consists in the sale of property belonging to the debtor, and such a procedure is applied if, for various reasons, it is impossible to use other methods of collecting funds;
since the debt of such a lender is the main one, he can count on prompt receipt of money from the sale of property;
participation is allowed even in the process of financial recovery of the debtor, and at this time the defaulter must fulfill the requirements of the pledgee;
taking part in meetings where voting is held on the possibility of forming a schedule on the basis of which debts will be repaid by the defaulter;
participation in external management, since the lender can influence the determination of the price of collateral if a decision is made to sell it, as well as insist on reducing the debtor's expenses.

Due to these numerous rights, the creditor can facilitate the prompt receipt of his funds. The secured creditor, along with other creditors, must be notified in advance that a particular debtor is declared bankrupt. Only in this case can he present his claims within the established time limits.

What are the responsibilities?

In addition to certain rights, the secured creditor has obligations. These include:

holding an auction where collateral property is sold;
the use of various measures designed to collect a debt from a defaulter;
taking part in meetings where it is required to vote when making this or that decision, but the creditor has the right to refuse such obligations, for which he draws up an official statement, since only in this case does he have advantages in receiving money from the sale of valuables;
determines under what conditions the property will be sold;
distribution of funds received as a result of the sale of valuables belonging to the debtor;
a petition is filed stating that the creditor has the right to certain property of the debtor at the expense of a properly executed mortgage;
making demands;
resolving issues related to the sale of objects and obtaining money to pay off debt.

If, as a result of the sale of property, a sum of money remains, then it is transferred to the appointed manager, after which it is directed to pay off other debts that the defaulter has.

Rights of secured creditors at meetings of creditors

During the meeting of creditors, pledgees have certain specific rights. These include:

the conditions under which the sale of collateral property is carried out are determined;
first of all, the funds received from the sale of these values are sent to the company that owns the mortgage;
but in the presence of such advantages, the creditor loses the right to vote at the meetings;
although the lender cannot vote, he has the right to take part in discussions or even speak at meetings.

How is a lender included in the registry?

A secured creditor in bankruptcy must be included in the register of creditors. The decision to include a particular company in the register is made exclusively by the court. This requires a special application.

A claim against a defaulter can be brought within a certain period of time as part of the process of recognizing it as insolvent. This is possible even if bankruptcy proceedings have already been initiated. Filing a claim on time provides the lender with some advantages over other firms.

The register is kept open for only two months. This period begins from the moment information about the bankruptcy of a particular debtor is published in open sources. If the creditor does not have time to file a claim within the established time frame, then he will be able to count on receiving funds only after the debts of the companies included in the register are repaid.

What to do if you miss a deadline?

If the secured creditor did not have time to apply for inclusion in the register within the established time limits, then he risks that his debt will not be repaid at all, since often the proceeds from the sale of the debtor's property are not enough to pay off all debts.

Initially, the debts of all creditors included in the register are repaid. The remaining funds from bankruptcy proceedings are directed to the remaining debts. You can only file an application within two months after the start of bankruptcy proceedings. Therefore, each creditor must independently take care of the timely filing of a claim.

Conclusion

Mortgage creditors are represented by lenders who made a mortgage with the debtor. They have certain advantages over other creditors, as they can quickly receive funds from the sale of collateral. To do this, it is important to file a lawsuit in a timely manner.

If the lender wishes to take part in voting at meetings, then he will have to give up his status and benefits. Under such conditions, the probability of receiving your funds after the bankruptcy proceedings is reduced, since the money will be distributed in a standard way based on the existing priority.

The status of secured creditors in bankruptcy cases is often referred to as privileged. But in addition to "privileges", it also implies a number of serious restrictions compared to the status of ordinary bankruptcy creditors. So serious that sometimes the creditor has to give up privileges in order to return the money.

“Privileges” should be understood as special rights guaranteed to the secured creditor by law (clause 1 of the Federal Law of October 26, 2002 No. 127-FZ “On Insolvency (Bankruptcy)”, hereinafter referred to as the LB), the main of which is the right to receive 70% of the funds, proceeds from the sale of the collateral.

Let us briefly list other rights of a secured creditor that distinguish it from others. This status implies the impossibility of replacing the debtor's assets in the course of bankruptcy proceedings (paragraph 2 of article 141 BA) and the conclusion of a settlement agreement without the will of the secured creditor (paragraph 2 of article 150 BA). The secured creditor has the right to retain the pledged property in cases provided for by the Bankruptcy Law (paragraph 5 of article 18.1 of the BA), as well as the right to determine the procedure and conditions for the sale of the pledged property (paragraph 4 of article 138 of the BA).

But among the restrictions, the main one for secured creditors is the ban on voting. It is valid when decisions are made by the meeting of creditors in the bankruptcy proceedings (paragraph 1 of article 12 of the BA), with the exception of cases expressly mentioned in the law

This prohibition often leads to the fact that the right of the secured creditor to receive 70% of the proceeds from the sale of the subject of the pledge, in fact, becomes unrealizable. And he is forced to ask to be included in the register as non-collateral (voting). If the creditor's claims were previously included in the register as pledges, the creditor is forced to request that the pledge status be terminated in respect of all or part of the claims.

What were the consequences of this? The possibility of establishing the claims of a creditor secured by a pledge as non-collateral caused serious difficulties for the courts, which formed conflicting judicial practice on this issue (see Ruling of the Arbitration Court of the North Caucasus District dated April 27, 2015 No. F08-2008/2015 in case No. A32-18644 /2014). In an attempt to correct such a discrepancy in the judicial practice of the Supreme Arbitration Court of the Russian Federation, in paragraph 3 of the Decree of the Plenum dated July 23, 2009 No. 58 “On Certain Issues Related to Satisfying the Claims of a Pledgor in the Event of a Pledgor’s Bankruptcy” (hereinafter referred to as Resolution No. 58) clarified that if the creditor, when establishing claims did not refer to the existence of a pledge relationship, as a result of which the court established these requirements as not secured by a pledge, then subsequently the creditor has the right to apply for recognition of the status of a secured creditor in the case. At the same time, such an application can be satisfied by the court only on the condition that the creditor filed an application no later than the deadline for closing the registry (paragraph 1 of article 142 of the BA; paragraph 4 of resolution No. 58)

Another serious problem for the courts was the issue of the admissibility of terminating the pledge status of claims (part of them) included in the register. The courts have resisted the idea that a claim established as a security deposit cannot become wholly or partly unsecured, including by assigning part of such a claim with the condition that such a part is assigned without security (see Ruling of the Eighth Arbitration Court of Appeal dated 29.06. 2011 in case No. A46-13479/2009). In turn, the Supreme Arbitration Court of the Russian Federation pointed out the admissibility of recognizing a pledge claim as non-collateral in Resolution of the Presidium No. 14021/11 of April 17, 2012 in case No. A46-13479 / 2009 (later this approach was confirmed by the Ruling of the Supreme Court of the Russian Federation of August 1, 2016 No. 308 ES15-6280 (3) in Case No. A32-29459/2012), which shows that the Bankruptcy Law does not prohibit a secured creditor from relinquishing all or part of its security rights.

Recognition by court practice, including the Supreme Arbitration Court of the Russian Federation and the Supreme Court of the Russian Federation, of the admissibility of a secured creditor refusing to exercise security rights is an important guarantee for such a creditor, which is often more profitable to control the course of bankruptcy proceedings by voting at meetings of creditors to the detriment of its security rights.

Bagaev Yan Yakovlevich, lawyer at Infralex LLC