What debts are not written off in the bankruptcy of an individual
We hope that today business owners have no illusions that they are liable for the obligations of their company only to the extent of their contribution to its authorized capital. This has long been wrong. In confirmation – our Guide to subsidiary liability of owners and business leaders. Similarly, personal bankruptcy of an individual will not allow you to get rid of all debts. Including subsidiary.
Indeed, as a general rule, after settlements with creditors are completed, a citizen recognized as bankrupt is exempted from further execution of claims.
After settlements with creditors are completed, a citizen declared bankrupt is exempted from further fulfillment of creditors’ claims, including claims of creditors not declared upon the introduction of a restructuring of a citizen’s debts or sale of a citizen’s property (Clause 3, Article 213.28 of Federal Law No. 127- dated 26.10.2002 No. 26- Federal Law “On Insolvency (Bankruptcy)”.
However, several groups of obligations and circumstances can be distinguished, in the presence of which debts will not be “forgiven” in the end.
The court will not release a citizen from outstanding debts in the following circumstances:
(A) The debtor is held criminally or administratively liable for unlawful actions during his bankruptcy; Resolution of the Arbitration Court of the Volga-Vyatka District of June 13, 2018 in case No. A43-26339 / 2016 or for his deliberate or fictitious bankruptcy;
(B) The Debtor did not provide the necessary information to its financial manager or court, or the information provided was false; Resolution of the Arbitration Court of the Volga Region of August 15, 2018 in Case No. A12-10172 / 2016
(C) The claims against the debtor themselves arose as a result of unlawful acts (fraud, malicious evasion of debt repayment, tax evasion, the provision of knowingly false information when obtaining a loan, concealment or destruction of their property). Resolution of the Arbitration Court of the North Caucasus District dated January 18, 2019 in case No. A32-37686 / 2015
Therefore, obtaining loans according to false information, optimizing VAT, or donating property to a relative in order to prevent foreclosure on him will ensure that obligations are maintained until complete settlement with creditors.
Noteworthy here is the recent determination of the Supreme Court of the Russian Federation, by which the court defended the interests of an ordinary individual debtor:
The borrower took a loan, failing to adequately calculate his financial capabilities, which subsequently led to his debts. The determination of the Supreme Court of the Russian Federation dated June 03, 2019 No. 305-ES18-26429 in case No. A41-20557 / 2016. The practice in these cases was not in favor of the debtors, such debts were not written off, since such behavior was considered unscrupulous. The determination of the Supreme Court of the Russian Federation of 02.02.2017 in case No. A45-24580 / 2015. Resolution of the Arbitration Court of the Central District of November 28, 2018 in case No. A36-7440 / 2017. The Supreme Court of the Russian Federation suggested distinguishing dishonest behavior from unreasonable:
in the first case (bad faith), the person obviously understands that he will not be able to repay the debts, while at the same time he withholds information from the lender about his financial condition (for example, about the availability of several loans or other debts at the time of receiving the next loan);
in the second case (unreasonableness), a person does not realize the consequences of his actions, for one reason or another, cannot adequately assess the situation and consequences. He knows about the availability of several loans, but does not say, since he was not asked.
In general, the current legislation and practice no longer allow maliciously “throwing” their creditors.
Separately, the law of Art. 123.28 of the Federal Law of October 26, 2002 No. 127-ФЗ “On Insolvency (Bankruptcy)” identifies categories of obligations that are “not forgiven” regardless of the behavior of the debtor
(A) Current payments (obligations arising after the bankruptcy petition is accepted by the court);
(B) Obligations to individuals who worked with the debtor under an employment contract;
(B) Inextricably linked to the person of the debtor (alimony, compensation for harm to life or health, payment of salary and severance pay, compensation for moral damage, etc.) obligations, including those that were not filed for bankruptcy;
(D) Compensation for damage to property (caused intentionally or through gross negligence);
(E) Obligations to apply the consequences of invalid transactions. If the court declared the transaction invalid, then the debtor in any case will have to fulfill the obligations arising in this connection (return received on such transaction, etc.);
(E) Liabilities of subsidiary liability of an individual for the debts of a bankrupt company;
(G) Compensation for losses incurred by a debtor to a legal entity as its participant, director or arbitration manager (Article 53.1 of the Civil Code of the Russian Federation).