As part of the scandalous bankruptcy of the once one of the largest sellers of electronics and household appliances, Ulmart, the Supreme Court (SC) made an important decision on the place of the debtor’s guarantor in the register of creditors.
In particular, he will have to prove the repayment of the bankrupt’s obligations from personal funds. And the guarantee itself should not be issued “at the time of the debtor’s property crisis.”
The Supreme Court has published a decision on the dispute over the subordination (downgrading) of Dmitry Kostygin’s claims in the Yulmart bankruptcy case. In March 2014, Gazprombank gave the retailer 700 million rubles. under the guarantee of its co-owner, Mr. Kostygin. The company did not repay the loan, and in October 2016 the bank wrote off 555.31 million rubles from the guarantor’s account without acceptance.
In February 2020, Ulmart was declared bankrupt amid a conflict between co-owners Dmitry Kostygin, August Meyer and Mikhail Vasinkevich. Messrs. Kostygin and Meyer are defendants in a criminal case of fraud initiated by Sberbank, which issued 2.3 billion rubles to Yulmart. Mikhail Vasinkevich himself was declared bankrupt – in May 2021, the procedure was completed, and the court refused to write off the debts of the entrepreneur.
Already as part of the bankruptcy of Yulmart, Dmitry Kostygin asked to include his claims in the amount of 403.2 million rubles. to the register of creditors with reference to the implementation of the guarantee. The case went through two rounds, and as a result, in December 2020, during the second consideration, the Arbitration Court of St. Petersburg and the Leningrad Region included the debt to Mr. Kostygin in the third line of the register.
But according to the complaint of VTB, supported by Sberbank, the district cassation office subordinated the debt, setting it for the register (repaid after the claims of all registered creditors). According to the appeal, Dmitry Kostygin, as one of the final beneficiaries, could not have been unaware of the problems, but “did not take measures to stabilize the situation and return loans.”
Mr. Kostygin appealed against this to the Supreme Court, insisting that his guarantee was not due to the debtor’s crisis, and the money was written off at the initiative of the bank. The case was referred to the Economic Collegium of the Armed Forces, which on February 3 canceled the decisions of lower instances. The motivation is now known.
The Supreme Court recognized that the affiliation of the creditor with the debtor is not enough to subordination of claims. It matters, the court clarified, whether the debtor was in a state of crisis at the time of financing. But the “financial and managerial crisis” for the group, which included Ulmart, arose in February 2016, and the guarantee was issued in March 2015, the Sun explained.
At the same time, the court stressed, if Dmitry Kostygin paid off Ulmart’s debts at the expense of the company’s own money, then his statement “is not subject to satisfaction.” The Supreme Court referred to VTB’s data on the “free movement of assets” and the redistribution of credit funds within the group, including in favor of Dmitry Kostygin. According to the bank, the guarantor repaid the loan with this money. To find out exactly how the money was transferred from Ulmart and whether there were “reasonable economic reasons” for this, the dispute was sent for a new consideration.
Dmitry Kostygin said he was satisfied with the decision of the Supreme Court. When asked by Kommersant about whether he repaid the GPB loan with the money that came to him through the chain at the expense of the same funds, he answered in the negative. Mr. Kostygin insists on including his claims in the register of Yulmart’s creditors.
Sberbank Kommersant still believes that a businessman “should not claim to repay claims on an equal basis with independent creditors.” The Bank expects that “during the new consideration, all disputed points will be eliminated and a reasonable and fair decision will be made.” Gazprombank and VTB did not respond to requests from Kommersant.
