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 applicable law Russian Federation about 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 data- 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 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 providing their processing information technologies and technical means.
- 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:
- the processing of personal data is carried out with the consent of the subject of personal data to the processing of his personal data;
- 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 LLC Law Firm"Start", 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 are specified. 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 to process personal data;
- 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 for damages and / or compensation moral damage judicially.
- 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 of writing 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 ah 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.
27.05.2018 23:03:01 website
A secured creditor is a person belonging to the general group of lenders, but having a special legal status. A mortgage loan guarantees a cash payment in the event of a debtor's bankruptcy, which is why it is very popular. The basis for filing an application is non-compliance with obligations for more than 3 months.
Creditor Status
The person with the pledge acts at the court session, representing the secured creditor. He has a special legal status:
being in the 2nd priority for payments;
in the right to expect to receive the amount after the trade sales of the property.
The right is exercised by the legislation, since the pledge is transferred to him in the event of the bankruptcy of the pledgor.
In the process of conducting the bankruptcy of the debtor, the creditor is not the last role.
The obligations of both parties and their rights are spelled out in the contract. At the same time, the debtor continues to use the pledge itself. According to the current legislation, the lender has every right to apply to the court for debt collection. First of all, in this process, the property for which the pledge agreement has been drawn up is considered.
Such property may include:
house, apartment, cottage;
industrial property;
cars, equipment;
equipment;
Jewelry;
securities and more.
The status of a secured creditor in a bankruptcy case makes it possible much earlier, even before the official declaration of insolvency of the debtor, to issue in due course statement of claim in a court. The risk of being rejected is very high if the company is undergoing a financial recovery or external management has been introduced.
Difficulties often arise during the period of determining bankruptcy.
Powers of the creditor
The person who has pledged property has rights. He has an advantage in receiving money under the contract. Unsecured lenders will receive payments in the 2nd stage of the repayment process. Rights of the creditor (if there is a pledge agreement):
file a claim long before the debtor receives bankruptcy status;
demand immediate payment of debt obligations;
carry out the sale of property as a pledge (only at auction).
However, the presence of all these rights is not a complete guarantee of the repayment of all debt obligations. During the court session, they may refuse to receive early repayment on credit obligations.
When the pledged property is necessary for the recovery of the enterprise, the court may well decide not in favor of the secured creditor, with a refusal to fully satisfy all its requirements. The lender loses its special status, but only until the court officially declares the debtor bankrupt.
The court refuses if the total amount of debt does not exceed 5% of the value of the collateral and if the terms of loan payments came out less than 3 months ago.
Obligations of the mortgagee
During the arbitration or court session, the pledgee has the following obligations:
If he plans, by taking part in the meeting, to be able to vote, then he must renounce all his privileges in relation to other creditors in writing.
If the court decides to sell the pledge, then the holder of such property indicates the procedure, the period of the auction, conveys this information to all participants.
In a situation where the sale of property was carried out, but not a single transaction was completed within the allotted time, the pledgee has every right to keep it. Under such conditions, a certain amount is transferred to the debtor's account, depending on the appraised value. It must necessarily be higher than the total amount that is in debt.
It also has other obligations. They relate to the relationship with litigation or arbitration.
Claims of creditors
Claims of creditors secured by a pledge of the debtor's property are preliminarily recorded and registered in the court register. If the pledgee missed the allotted time for submitting an application, he is assigned only the primacy over those who also did not have time to submit an application. He can expect to receive the amount remaining after the fulfillment of all claims against other creditors that were previously entered in the register.
On the general meeting all voting rights are taken away from the pledgee, since the claims associated with pledge obligations are considered paramount. Preservation of the vote for him remains with:
waiver of claims;
liquidation of a competitive position;
waiver of bail rights;
provided that the court decides to refuse regarding the return of the debt.
On what issues the secured creditor votes is determined only in the arbitration process. It has an impact during the period of rehabilitation and the period of external management. The mortgagee has the full right to vote on the removal of the manager.
Renunciation of claims to property unequivocally does not mean complete renunciation of the pledge itself. Pledgee in this case only waives his primacy for the payment that is received in the course of the sale of the debtor's property.
Therefore, many decide to obtain the right to vote during a trial or arbitration. If there are several pledgees, they apply voting in such a way that their votes in the end do not exceed the total assessed value of the existing pledge. This is required so as not to violate the rights of other participants in the arbitration.
Features of inclusion in the register
The decision regarding the inclusion of the pledgee in the register is made within the framework of the judicial process. The claim is filed even after the commencement of the bankruptcy proceedings. Timely applications for claims on existing obligations are more likely to be satisfied than those submitted after the registry was closed. The same rules apply to all creditors.
Peculiarities:
The register remains open for up to 60 days, starting from the official day of the announcement of the beginning of the bankruptcy process.
The application is submitted to the office no later than the last day of the allotted period.
If the application is sent by mail, then this must be done 24 hours before the end of the allotted period. If the last day falls on a weekend, the period is considered to be completed on the next working day.
If the pledgee did not have time to file an application for inclusion in the general register, then he runs the risk of not repaying the debt in full. The plaintiff is also deprived of all his special powers, and he receives funds only after all creditors who were previously entered in the general register.
After the end of the period for submitting an application to the register, you can file a claim regarding the fulfillment of credit obligations within 30 days.
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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 government agencies violating 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.
Decree of the Plenum of the Supreme Arbitration Court of the Russian Federation of July 23, 2009 N 58
"On some issues related to the satisfaction of the pledgee's claims in the event of the pledger's bankruptcy"
In connection with the emerging judicial practice issues related to the satisfaction of the requirements of mortgagees in the procedures applied in bankruptcy cases, and in order to ensure uniform approaches to the application of relevant provisions federal law dated October 26, 2002 N 127-FZ "On Insolvency (Bankruptcy)" * (hereinafter - the Bankruptcy Law, the Law) The Plenum of the Supreme Arbitration Court of the Russian Federation, guided by Article 13 of the Federal Constitutional Law "On Arbitration Courts in the Russian Federation", decides to courts (hereinafter - the courts) the following explanations.
1. When considering the issue of establishing and including in the register of claims of bankruptcy creditors secured by a pledge of the debtor's property (hereinafter referred to as secured creditors), the courts must take into account the following.
If the court has not previously considered the claim of the pledgee to levy execution on the pledged property, then the court, when establishing the requirements of the creditor, checks whether the right of the pledgee has arisen in the prescribed manner (whether there is a proper pledge agreement, whether circumstances have arisen that entail the emergence of a pledge by virtue of law), whether it has ceased on the grounds provided for by law, whether the debtor has pledged property in kind (whether the possibility of foreclosure on it remains).
In the course of establishing the claims of the secured creditor in the presence of a judicial act on foreclosure on the pledged property, the court checks the indicated circumstances, with the exception of those relating to the emergence of the right of the pledgee.
If the pledged property has left the possession of the pledgor, including as a result of its alienation, but the right of pledge is retained, then the pledgee has the right to exercise his right by filing a claim against the owner of the property. In this case, the court refuses to establish the creditor's claims in the bankruptcy case as claims secured by a pledge of the debtor's property.
When establishing the requirements of the secured creditor, the court takes into account that, in accordance with Article 337, paragraph 1 of article 339 of the Civil Code of the Russian Federation (hereinafter referred to as the Civil Code of the Russian Federation), the debtor's obligation is recognized as secured by pledge as a whole, regardless of the assessment of the subject of pledge (except for the case when the obligation was secured by pledge not in full, but only in part).
When establishing the claims of a pledgee in a bankruptcy case, the provisions paragraph 2 of article 348 Civil Code of the Russian Federation on the grounds for refusal to foreclose on pledged property.
2. If the pledge has terminated due to the physical death of the subject of pledge or on other grounds that have arisen after the court has issued a ruling on the establishment of the claims of the pledge creditor, or the subject of pledge has come into the possession of another person, including as a result of its alienation, the court, upon the application of the arbitration manager or another person entitled, in accordance with Section 71 of the Bankruptcy Law, to raise objections to the claims of creditors, on the basis of article 16, paragraph 6 The Law issues a ruling on amending the register of creditors' claims and reflecting in it the creditor's claims as not secured by a pledge. The procedure for considering this application is defined in Article 60 of the Bankruptcy Law.
3. If the creditor, when establishing the requirements, 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 in accordance with Article 138 of the Bankruptcy Law . Taking into account the originally issued court ruling on the inclusion of the creditor's claims in the third priority, such an application is not repeated and is aimed at establishing legal status creditor as a secured creditor. Consideration of the application is carried out by the arbitration court in the manner prescribed for the establishment of creditors' claims. A court ruling establishing the existence of a right of pledge is the basis for making changes to the register of creditors' claims.
4. If the secured creditor presented his claims against the debtor or filed an application for recognition of his status as a secured creditor in a case with a missed deadline paragraph 1 of article 142 Bankruptcy Law, he does not have special rights granted to mortgagees by the Bankruptcy Law (the right to determine the procedure and conditions for the sale of pledged property in bankruptcy proceedings, etc.).
5. According to article 12, paragraph 1 of the Law, secured creditors have the right to vote at the meetings of creditors in the monitoring procedure, as well as in the procedures for financial rehabilitation and external management in cases of refusal in these procedures to sell the subject of pledge or a ruling by the arbitration court to refuse to satisfy the application for the sale of the subject of pledge.
In bankruptcy proceedings, secured creditors do not have the right to vote at meetings of creditors, except in cases expressly provided for by the Bankruptcy Law (for example, by virtue of paragraph 1 of article 141, paragraph 2 of article 150 and etc.).
Lender in the event of loss of the status of a secured creditor, including on the basis of paragraph six paragraph 5 of article 18.1 of the Bankruptcy Law as a result of the sale of pledged property, claims included in the register of creditors' claims and not being extinguished, shall be voted in the general manner.
6. effect paragraph 1 of article 18.1 Bankruptcy Law from the date of introduction of supervision, foreclosure on pledged property, including extrajudicial procedure, is not allowed.
This provision of the law means that an agreement concluded after the date of the introduction of supervision on the extrajudicial procedure for levying execution on pledged property is void deal by virtue of Article 168 of the Civil Code of the Russian Federation.
An agreement on the extrajudicial procedure for levying execution on pledged property, concluded before the specified date, is not subject to execution after the introduction of supervision.
If the pledged property is at the time of the introduction of supervision with the pledgee, he is not entitled to keep it behind him, alienate it in any way and is obliged to ensure its safety.
Regulations paragraph 1 of article 18.1 of the Law do not prevent the issuance of a court decision on foreclosure on pledged property in a claim filed before the introduction of the monitoring procedure, if on the basis of paragraph three of paragraph 1 of article 63 The creditor did not file a motion to suspend the proceedings under the law. Enforcement of this court decision in accordance with paragraph 1 of Article 18.1 and the Bankruptcy Law is not allowed.
7. According to paragraph 2 of article 18.1 In the course of financial recovery and external administration, a bankruptcy creditor under obligations secured by a pledge of the debtor's property has the right to levy execution on the pledged property of the debtor, unless the debtor proves that levying execution on this property will make it impossible to restore its solvency.
The issue of the possibility of foreclosure on the pledged property of the debtor is decided by the court considering the bankruptcy case, at the request of the bankruptcy creditor, whose claims are secured by the pledge of this property. The specified application is considered by the arbitration court in accordance with the rules established by Article 60 of the Bankruptcy Law.
As follows from the seventh paragraph paragraph 5 of article 18.1 Bankruptcy Law, when selling pledged property, the claims of the bankruptcy creditor for obligations secured by the pledge of the debtor's property are subject to satisfaction at the expense of the proceeds from the sale of the pledged property. This provision means that until the mortgagee's claims are paid off, the proceeds from the sale of the pledged property cannot be used to pay off current payments and settlements with other creditors, including creditors of the first and second priority.
8. When considering disputes related to the refusal of an external or bankruptcy commissioner to execute the debtor's transactions (Article 102, paragraph four of paragraph 3 of article 129 of the Law), the courts need to bear in mind that the pledge agreement does not fall under the paragraph 2 of article 102 Law signs and, therefore, does not belong to the category of transactions, the execution of which may be refused on the basis of the named norms of the Bankruptcy Law.
9. According to paragraph 4 of article 138 of the Bankruptcy Law, the sale of pledged property is carried out by the bankruptcy trustee in the manner prescribed by paragraphs 4, 5, 8-19 of Article 110, paragraph 3 of article 111 Law.
The procedure and conditions for conducting auctions are determined by the bankruptcy creditor, whose claims are secured by a pledge of the property being sold, to the extent that this is allowed by the specified provisions of the Bankruptcy Law. At the same time, the meeting of creditors is not entitled to determine the procedure and conditions for the sale of the pledged property.
The creditor, whose claims are secured by a pledge, is obliged to establish the specifics of the procedure and conditions for conducting auctions within a reasonable time from the moment the bankruptcy trustee applies to him.
In accordance with paragraph four of paragraph 4 of article 138 of the Bankruptcy Law, in the event of disagreements between the bankruptcy creditor under an obligation secured by a pledge of the debtor's property, and the bankruptcy trustee in matters of the procedure and conditions for holding tenders for the sale of the subject of pledge, each of them has the right to apply for resolution of such disagreements to the court considering the case on bankruptcy, based on the results of the consideration of which a ruling is issued on the approval of the procedure and conditions for holding tenders for the sale of the subject of pledge, which may be appealed. The procedure for considering an application is established by Article 60 of the Bankruptcy Law.
At the same time, the courts must take into account that the specified provision of the law does not exclude the right of other persons participating in the bankruptcy case to file objections regarding the procedure and conditions for conducting auctions for the sale of pledged property.
There are grounds for a court to change the procedure and conditions for the sale of pledged property at an auction offered by a pledge creditor or bankruptcy trustee, in particular, if proposals on the procedure or conditions for conducting an auction can adversely affect the possibility of obtaining the maximum price from the sale of pledged property, including public access to bidding, as well as if the procedure and conditions for bidding are not sufficiently certain.
If the secured creditor has not presented his claims within the framework of the bankruptcy case, the pledged property is sold at auction in the manner prescribed by paragraphs 4, 5, 8-19 of Article 110, paragraph 3 of article 111 Bankruptcy Law. In this case, the consent of the secured creditor for the sale of the subject of pledge is not required.
10. Based on Article 126 of the Bankruptcy Law, one of the consequences of declaring a debtor bankrupt is the removal of previously imposed arrests on property and other restrictions on the disposal of the debtor's property.
As follows from the meaning of this provision, after the opening of bankruptcy proceedings, the pledgee, who has the pledged movable property, is not entitled to retain this property - it is subject to transfer to the bankruptcy estate for sale in the manner prescribed by the Bankruptcy Law.
Since mortgage legal relations do not terminate with the opening of bankruptcy proceedings, the fact that the debtor is declared bankrupt cannot lead to the cancellation of the mortgage entry in the Unified State Register of Rights to real estate and transactions with it, as well as records of the pledge of book-entry securities in the system of keeping records of the owners of these securities.
11. Based on paragraph two of paragraph 2 of Article 131 The Bankruptcy Law separately takes into account and is subject to mandatory assessment of property that is the subject of pledge.
The resulting valuation of the pledged property is taken into account when determining the initial sale price of the subject of pledge in accordance with legislation Russian Federation on pledge ( paragraph two of paragraph 4 of Article 138 bankruptcy law).
Since the sale of the subject of pledge in the course of bankruptcy proceedings is carried out under the control of the court considering the bankruptcy case, in order to obtain the maximum proceeds in the interests of all creditors of the debtor, the initial sale price of the subject of pledge must be indicated by the court in the ruling on the procedure and conditions for the sale of the pledged property.
12. When considering disputes, including appeals against a refusal to make an entry on the repayment of a mortgage on the part of the body that registers rights to real estate and transactions with it, the courts must take into account the following. Sale of pledged property in the manner prescribed by the Bankruptcy Law (paragraphs 4, 5, 8-19 of Article 110, paragraph 3 of article 111, paragraph three of paragraph 4.1 of article 138), leads to the termination of the right of pledge by virtue of law in relation to subparagraph 4 of paragraph 1 of Article 352 Civil Code of the Russian Federation, paragraph six of clause 5 of article 18.1 Bankruptcy Law.
13. According to paragraph 4.1 of article 138 of the Bankruptcy Law, in the event that repeated auctions are recognized as failed, the bankruptcy creditor for obligations secured by the pledge of the debtor's property has the right to retain the subject of pledge with an assessment of it in the amount of 10 percent lower than the initial sale price at repeated auctions. In this case, the specified creditor is obliged to transfer funds in the amount determined in accordance with paragraphs 1 and 2 of Article 138 to a special bank account in the manner prescribed by paragraph 3 of article 138 of the Law, within 10 days from the date of sending the application to the bankruptcy trustee to leave the subject of pledge behind him.
When considering disputes, the courts should take into account that, according to this norm of the law, the right of ownership of the secured creditor arises after he makes the specified payment and transfers the subject of pledge to him.
If the bankruptcy trustee does not receive an application from the pledge creditor to leave the pledged property within 30 days from the date of recognizing repeated auctions as failed, as well as if the pledge creditor fails to pay the amount in accordance with paragraph two of paragraph 4.1 of article 138 Bankruptcy Law mortgaged property may be sold by means of a public offer in accordance with paragraph three of clause 4.1 of Article 138 Law. At the same time, the courts should keep in mind that the proceeds from the sale of the pledged property are directed to repay the claims of the secured creditor in the manner prescribed by paragraphs 1-2.1 of article 138 Bankruptcy Law.
14. If the subject of pledge is part of the debtor's enterprise, the enterprise may be sold as a single object. During the valuation of the enterprise, the pledged property must be separately evaluated. The secured creditor has the right to preferential satisfaction of his claims from the part of the sum of money received from the sale of the enterprise. The size of this part total amount, proceeds from the sale of the enterprise, should be determined based on the ratio of the initial sale price of the pledged item, established by the court, and the initial sale price of the enterprise.
15. According to paragraph 1 of Article 138 Bankruptcy Law, from the proceeds from the sale of the subject of pledge, 70 percent is directed to repay the creditor's claims under the obligation secured by the pledge of the debtor's property, but not more than the principal amount of the debt under the secured obligation and the interest due (payment for the use of money). The remaining 30 percent is paid into the special bank account of the debtor.
From this account, up to 20 percent is directed to repay the claims of creditors of the first and second priority (regardless of the date of occurrence of these claims), as well as to repay similar claims that arose after the initiation of bankruptcy proceedings. The remaining funds are used to pay off the types of current payments named in the law - court costs, expenses for paying remuneration to arbitration managers and paying for the services of persons involved by the arbitration manager in order to ensure the fulfillment of the duties assigned to him. Courts need to take into account that the number of court costs in accordance with article 59, paragraph 1 The Bankruptcy Law also includes the costs of publishing information in the manner prescribed by Article 28 of the Bankruptcy Law. Within the meaning of the Law, this category of current payments also includes expenses related to the sale of pledged property (payment of expenses and remuneration of the auction organizer, etc.).
Since the claims of creditors for current payments are subject to satisfaction before payments to creditors of the first and second priority, the provision of the Law that the funds remaining after settlements with creditors of the first and second priority are directed to repay current payments means the following.
The bankruptcy commissioner has the right to repay the specified in paragraph 1 of article 138 Bankruptcy Law current payments within 10 percent of the proceeds from the sale of the subject of pledge at any time during bankruptcy proceedings, regardless of settlements with creditors of the first and second priority.
If the repayment of the stipulated paragraph 1 of Article 138 Less than 10 percent of the proceeds from the sale of the collateral (including due to the satisfaction of them at the expense of the proceeds from the sale of unsecured property), the remaining part of the amount is used to pay off other current payments, then - for settlements with creditors in the general manner (including claims of first and second priority creditors). At the same time, the claims of the secured creditor in the part secured by the pledge are repaid in priority order before the rest of the claims of the third order.
If the claims of the first and second priority are absent or fully repaid (including from the proceeds from the sale of unsecured property), the remaining 20 percent of the amount on the special bank account is used to repay the remaining unsatisfied claims of the secured creditor in accordance with paragraph 2.1 of Article 138 Bankruptcy Law, then - for the repayment of current payments and then - for settlements with creditors of the third priority in the general manner.
If one property is pledged to several persons under different pledge agreements (preceding and subsequent), the proceeds from the sale of this property are divided in the same proportion, but out of 70 percent, funds are sent as a matter of priority to pay off the claims of the pledgee who takes advantage.
If different property of the debtor is pledged to different pledgees, funds in the appropriate proportion are transferred to the special bank account of the debtor from the sale of each subject of pledge. The costs of covering current payments and repaying the claims of creditors of the first and second priority are borne by the pledgees in proportion to the amount of funds received from the sale of each subject of pledge.
16. If the pledge of the debtor's property secures the claims of the bankruptcy creditor under the loan agreement, the provisions set forth in the previous paragraph of this resolution shall be applied subject to a different proportion of the distribution of proceeds from the sale of the pledged property - in accordance with paragraph 2 of Article 138 Bankruptcy Law.
17. According to paragraph 3 of article 137 According to the Bankruptcy Law, third priority creditors' claims for compensation for losses in the form of lost profits, recovery of forfeits (fines, penalties) and other financial sanctions are recorded separately in the register of creditors' claims and are subject to satisfaction after repayment of the principal amount of the debt and interest due. In the order stipulated by this norm, the specified types of claims that have arisen in connection with the non-fulfillment of the obligation secured by the pledge are also subject to satisfaction. However, the costs of foreclosing the pledged property incurred prior to the initiation of bankruptcy proceedings are equated in nature to the underlying debt secured by the pledge.
18. In view of the peculiarities of the bankruptcy of citizens who are individual entrepreneurs, the courts must take into account the following. If the pledge of property of the debtor-individual entrepreneur secures claims that are not related to the implementation entrepreneurial activity, and the pledgee does not file an application for the establishment of his requirements in the bankruptcy case, these requirements remain after the completion of bankruptcy proceedings. Since the subject of pledge is included in the bankruptcy estate, the bankruptcy trustee has the right to sell it in the prescribed manner. However, when the subject of pledge is sold, due to the preservation of the main obligation, the right of pledge is also retained, which is indicated in the terms of the open auction in order to inform potential buyers of this property.
19. By virtue of Parts 1 and 4 of Article 96 of Federal Law No. 229-FZ of 02.10.2007 "On Enforcement Proceedings", enforcement proceedings for the collection of debts on current payments in the procedures for monitoring, financial rehabilitation and external administration are not suspended, in the bankruptcy proceedings there is no ends.
On this basis, if the creditor's claims for current obligations are secured by a pledge of the debtor's property, the foreclosure at the request of this creditor for the subject of pledge and its implementation in the execution of the relevant court decision is carried out outside the framework of the bankruptcy case, regardless of the bankruptcy procedure being carried out against the debtor. . When distributing proceeds from the sale of pledged property, the sequence established paragraph 2 of Article 134 Bankruptcy law does not apply.
If one subject of pledge ensures the execution of both bankruptcy and current claims, then its sale and repayment of claims of pledged creditors is carried out by the bankruptcy trustee in the manner prescribed by the Bankruptcy Law.
20. When considering the claims of a pledgee in a bankruptcy case of a pledgor who is not a debtor under the main obligation, courts must take into account the following.
In accordance with paragraph 5 of Article 138 of the Bankruptcy Law, the claims of pledgees under pledge agreements concluded with the debtor to secure the fulfillment of obligations of other persons are also satisfied in the manner prescribed by Article 138 of the Law. These pledge holders have the rights of bankruptcy creditors, whose claims are secured by a pledge of the debtor's property, in all procedures applied in a bankruptcy case.
When introducing a monitoring procedure in relation to the pledgor in relation to paragraph two of paragraph 1 of article 63 According to the law, claims for foreclosure on pledged property can only be brought in a bankruptcy case by filing an application for inclusion in the register of creditors' claims as claims of a secured creditor.
Moreover, within the meaning of the provisions of paragraph four of paragraph 1 of Article 63, , , Bankruptcy Law, enforcement of the decision to foreclose on mortgaged property is suspended in the procedures of supervision, financial rehabilitation and external management and terminated in the bankruptcy proceedings.
In order for the court considering the bankruptcy case to establish the requirements of the pledgee, a court decision on the recovery of the debt from the principal debtor is not required.
When deciding the issue of establishing the claims of the pledgee in a bankruptcy case, one should proceed from the fact that the amount of these claims is determined as the amount of monetary satisfaction that the pledgee can claim at the expense of the pledged property, but not more than the appraised value of this property. The value of the pledged property is determined by the arbitration court on the basis of the appraisal of the pledged property provided for in the pledge agreement, or the initial sale price established by the court decision on foreclosure on the pledged property, taking into account the arguments of the interested parties about the change in the specified value up or down.
When settling with creditors, it must be borne in mind that the claims of a secured creditor cannot be repaid from the proceeds from the sale of property that is not pledged.
If the proceeds from the sale of the pledged property exceed the amount of the pledgee's claims according to the register of creditors' claims, determined on the basis of the explanations provided, the claims of the secured creditor shall be repaid at the expense of the said proceeds within the amount of the claim secured by the pledge.
If the proceeds from the sale of the pledged property are lower than the amount of the pledgee's claims according to the register of creditors' claims, determined on the basis of the explanations provided, the claims of the secured creditor shall be repaid within the limits of the said proceeds. After the transfer of the proceeds to the secured creditor, his claims against the pledger shall be considered repaid in full.
The courts should proceed from the fact that the claims of the mentioned secured creditor are equated with the claims of the pledgees who are creditors of the debtor for monetary obligations, in order to establish equality of secured creditors in obtaining satisfaction from the proceeds from the sale of pledged property in the course of a bankruptcy case. In this regard, the application of the pledgee with an application for declaring bankrupt a debtor who has provided security for another person is unacceptable.
21. If a pledge is provided to secure an obligation not of the pledgor, but of another person (the debtor under the main obligation), the completion of bankruptcy proceedings against the debtor under the main obligation and its exclusion from the unified state register of legal entities does not entail the termination of the pledge in the event that this At the moment, a demand is made to levy execution on the pledged property in a lawsuit or an application is filed to establish the requirements of the pledgee in the bankruptcy case of the pledgor.
22. The clarifications contained in this Resolution shall also apply in cases where the Bankruptcy Law is applied to bankruptcy proceedings in the wording that was in force before the adoption federal law dated December 30, 2008 N 306-FZ, unless these clarifications are related exclusively to the application of the legal norms set forth in new edition or included in the Bankruptcy Law by the named Federal Law.
When applying the provisions of the Bankruptcy Law in the wording that was in force before the introduction of these amendments, the courts, when considering issues related to determining the procedure for satisfying the claims of secured creditors, must take into account the following.
22.1. From the proceeds from the sale of the pledged property, until the claims of the secured creditor are paid off, the claims for current payments, as well as the claims of creditors of the first and second priority that arose before the conclusion of the pledge agreement, are subject to satisfaction. Claims of citizens to whom the debtor is liable for causing harm to life or health, claims of employees for wages and severance pay, claims for payment of royalties, related to the category of current claims, that arose after the adoption of an application for declaring the debtor bankrupt, are also satisfied in in the specified order until the claims of the secured creditor are paid off (paragraphs 1 and 4 of Article 134, Article 138 of the Bankruptcy Law as amended).
The mentioned norms of the Law mean that after the sale of the subject of pledge, the amount in which the claim of the secured creditor has an advantage over the claims of other creditors (with exceptions provided for by the Law) is determined. The established amount is taken into account when switching to settlements with creditors in accordance with the register of creditors' claims, while settlements with a secured creditor until the claims with a higher priority are repaid are not carried out.
This procedure shall also apply if the pledged property was sold in accordance with the procedure provided for by the Bankruptcy Law, before the establishment of the creditor's claims secured by the pledge and declared within the time limit specified paragraph 1 of article 142 Bankruptcy Law. In this case, the auction cannot be declared invalid with reference to the violation of the rights of the pledgee.
If there are several pledge agreements, the subject of which are different objects and which were concluded with different pledgees, and there is insufficient bankruptcy estate to fully repay the claims of secured creditors, satisfaction of claims that take precedence over the claims of each of these pledgees at the expense of proceeds from the sale of their pledged items is made in proportion to the amount in which the claim of the secured creditor has an advantage over the claims of other creditors.
If the subject of pledge has the rights of several pledge creditors who are the initial and subsequent pledgees, the proceeds from the sale of the pledged property shall be directed to repay the claims of the subsequent pledgee only after the claims of the initial pledgee have been fully satisfied.
22.2. The claim of the pledgee to levy execution on the pledged property provided by the pledgor, in respect of which a bankruptcy case has been initiated, to secure the fulfillment of obligations of another person, is not among the claims for monetary obligations and, on the basis of paragraph 5 of Article 4 of the Bankruptcy Law, is subject to consideration outside the scope of the case about bankruptcy.
The initiation of bankruptcy proceedings against a pledgor who is not a debtor under a secured obligation shall be grounds for a claim for early performance of the obligation secured by a pledge in relation to subparagraph 2 of paragraph 2 of article 351 Civil Code of the Russian Federation.
When considering disputes related to the execution of decisions to foreclose on pledged property, the courts must take into account that, within the meaning of the provisions provided for paragraph four of paragraph 1 of Article 63, paragraph five of paragraph 1 of article 81, paragraph two of paragraph 2 of Article 95, paragraph six of paragraph 1 of article 126 of the Bankruptcy Law, the enforcement of a decision to foreclose on mortgaged property is suspended in the procedures of supervision, financial rehabilitation and external management and is terminated in the bankruptcy proceedings. Similar consequences are established in the norms provided for by Parts 1 and 4 of Article 96 of the Federal Law of 02.10.2007 N 229-FZ "On Enforcement Proceedings". In connection with the foregoing, the sale of the pledged property is carried out not by the bailiff, but by the bankruptcy trustee through the sale at auction with the initial sale price, which is determined on the basis of the assessment of the pledged property carried out during bankruptcy proceedings.
The claims of the pledgee are satisfied from the proceeds from the sale of the pledged property in the same manner as when satisfying the claims of creditors for the debtor's own obligations secured by the pledge of his property. This takes into account that the right to claim proceeds from the sale of the subject of pledge belongs to the pledgee only to the extent that his claims have not been repaid by the debtor under the main obligation.
The pledgee has the right to appeal against the actions (inaction) of the bankruptcy trustee to the court considering the bankruptcy case, in relation to the provisions of Article 60 of the Bankruptcy Law, and enjoys the rights of a person participating in the case, necessary to consider the said complaint.
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 within full size.
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 sent 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.