Throughout the year, the Bank’s client wired money to their accounts with other banks. But the last transaction occurred shortly before the introduction of the temporary administration, which allowed the manager to have it recognized as invalid within the framework of the bankruptcy case. The Economy Board revised this decision.
Background
A few days before the arrival of the provisional administration, Nota-Bank, on behalf of ST-Auto, transferred 25.7 million rubles to accounts in other banks. The Bank had conducted this kind of transactions before. But shortly after the last ones took place, the Central Bank intervened in the Bank’s work and revoked its license. The transfers were disputed for having been made with preference in the Nota Bank bankruptcy case (no. A40-232020/2015).
The County Court decided that the disputed transactions were performed with preference over other creditors of the debtor despite the presence of a card index of outstanding payment documents in the bank, which means that they go beyond the normal economic activity. Under these conditions, the district court declared the disputed transactions to be invalid.
ST-Auto did not agree and filed a complaint to the Supreme Court. The Applicant stated that during a year, he had repeatedly performed similar transactions. In addition, the funds were wired to the company’s current account with another Bank because of the need to comply with the requirements for the level of turnover so that they could provide bank guarantees under government contracts.
The subject of the complaint interested Mr Oleg Sviridenko, Head of the Board of Economic Disputes, who submitted it for consideration.
Orderly Transaction
At a hearing in the Supreme court, the transaction was “defended” by Anna Vereshchagina, acting on behalf of ST Auto. According to her, the case materials provided evidence to confirm that the transactions were made in the framework of normal business activities. They were payment orders for monthly transactions of similar amounts. The district court did not take this into account. “Those were regular transactions both the debtor and the defendant. The transfers were made monthly, ” the lawyer assured.
In her opinion, the district court should have taken into account the explanations of the Plenum of the Supreme Court No. 63 on the orderliness of the disputed transactions. In addition, the company provided their agreements with VTB-24 and bank guarantees to confirm the “orderliness” of transactions, according to which the company was obliged to maintain a balance on current accounts that would be equal to the amount of the bank guarantee. This is why the money was transferred from the current account in Nota Bank.
The company’s representative also assured that ST-Auto did not know about what was happening in the Bank. “When the dispute was first considered, we requested the information on debit payment sequences from the Bank. They replied that the information was not available and therefore could not be provided. In fact, the only proof the Bank manager was able to provide was the card file formed with a positive balance, ” Ms Vereshchagina said. In her opinion, there were numerous violations in how the card file was formed: the account balance was RUB 800,000,000, and the liabilities made up RUB 600,000,000.
Extraordinary
A representative of the Deposit Insurance Agency said that the decision of the lower instance was legitimate. The presumption of the existence of a card index of outstanding payment orders cannot be rebutted by the arguments presented by ST-Auto. Moreover, being a fire truck manufacturer, the company had information of Nota Bank being on the verge of bankruptcy. With “such an important social function,” the company has to monitor the stability of the bank where we keep our money, the lawyer said.
The ASV representative is sure that all ST-Auto was doing was trying to save their money.
According to him, the company’s payments were not systematic. Their amount increased as revocation of the Bank’s license approached, and the company did not provide any evidence on why this happened. “The Applicant received the money before those who should have received the money according to the card file. The Bank had to make payments to a number of other companies before paying the Applicant, ” he continued.
The representative of ASV also criticized the Company’s argument that the money was transferred to VTB-24 to comply with the terms of the bank guarantee, saying, “The transfers were non-standard. Normally, any bank guarantee provides for specific amounts to be paid according to specific schedules. There is no such schedule here.” For further confirmation of the “unorderly” nature of the transaction, the ASV representative said, “The payments from less “important” organizations as of the previous day [October 5] were not executed. Some of them were, and some of them were not.”
The Supreme Court: the Index Cards Are Sufficient
The Economic Dispute Panel recognized the position of the district court to be correct, after having examined the dispute. Three judges led by Judge Denis Kapkayev pointed out that the presence of an index file of outstanding payment documents in itself indicates that the transaction goes beyond the normal business activities. However, until proven otherwise, the lack of money in the bank account is assumed to be due to the fact that the orders of other clients remain unfulfilled, as was the case.
Since ST-Auto failed to refute the fact that at the moment when the disputed payments were made, the Bank already had the index file, which kept only growing, the conclusion of the district court on the invalidity of these payments is legitimate.