The accrual and payment of interest on claims of creditors in bankruptcy
The decree of the Plenum of the Supreme Arbitration Court of the Russian Federation No. 88 of 6 December 2013, "On accrual and payment of interest on claims of creditors in bankruptcy"
In connection with arising in judicial practice on issues related to accrual and payment of interest on claims of creditors in bankruptcy, the Plenum of the Supreme Arbitration Court of the Russian Federation, guided by article 13 of the Federal constitutional law of 28.04.1995, No. 1-FKZ "About arbitration courts in the Russian Federation" decides to give to arbitration courts the following explanations.
1. On the basis of paragraph 1 of article 4 and paragraph 1 of article 5 of the Federal law from 26.10.2002 № 127-FZ "On insolvency (bankruptcy)" (further — the Law on bankruptcy, the Law), if the creditor's claim against the debtor arose before the commencement of the bankruptcy case, and all related additional requirements are in bankruptcy the same legal regime, i.e. they are not current and should be included in the register of creditors.
For these purposes, under the basic requirements are the requirement about the repayment of the loan (article 810 of the Civil code of the Russian Federation; hereinafter — civil code) and the payment of the price of the goods, works or services (articles 485 and 709 of the civil code), the amount of tax or fee, etc.
To these additional requirements include, in particular, of requirements about payment of percent on the loan (article 809 of GK of the Russian Federation) or for illegal use of foreign funds (article 395 of the civil code), penalties in the form of penalties (article 330 of the civil code), penalties for late payment of tax or charge (article 75 of the Tax code of the Russian Federation) etc. (hereinafter — interest) and the payment of liquidated damages in the form of fines.
2. If the judicial act confirming the claim of a creditor, addressed with the statement for recognition of the debtor bankrupt (applicant), levied interest on the date of actual execution of the judicial act, on the basis of the first subparagraph of paragraph 1 of article 4 of the Law on bankruptcy in the register of requirements of creditors for verification of the validity of this statement includes the amount of interest, calculated on the date of filing of application to the court to declare the debtor bankrupt, as in this case, the entire amount confirmed by a judicial act.
For the purposes of the application of the first subparagraph of paragraph 1 of article 4 of the Law on bankruptcy under the date of application is the date of its receipt in the court, not the date the court's determination of acceptance.
If a judicial act charged interest as of a specific date in a specific amount, in the register of creditors included only that imposed by the court, the amount of interest and the interest for the period from said date to the date of filing of application about recognition of the debtor bankrupt, because they have not been confirmed by the judicial act may not be included in the register at the stage of checking the validity of this statement.
Subject to the requirements of paragraphs 1 and 2 of article 3 and paragraph 2 of article 4 of the bankruptcy Act in determining the overall size requirements of the applicant for the purposes of paragraph 2 of article 33 of the Law takes into account the entire amount of interest, calculated according to specified rules; the same three-month delay is not a primary requirement, and interest is not required.
Interest on demand, on which was based the Declaration of bankruptcy, for the period from the date on which they were installed with the introduction of monitoring to date introduction the observations can be presented by the applicant in the bankruptcy case in a General manner according to the rules of articles 71 or 100 of the Act.
3. Because bankruptcy Law allows you to submit with the bankruptcy requirements, the deadline of which they have not passed (item 3 of article 63 and the second paragraph of paragraph 1 of article 126), in determining the amount of such demand for the purposes of inclusion in the register of creditors must consider the following.
If the amount of the principal requirements before the expiry time are not accrued under the terms of the obligation interest, then the amount of such claims reduced by the amount of interest calculated for the period from the date of the introduction of the observation the date of the occurrence of the agreed period of performance of the obligation proceeding from discount rate of Bank percent at date of the introduction of surveillance.
In addition, if it is proved that the size of the primary requirements was determined by the parties obligations in fact, with interest for using the occurred credit (including commercial credit), in particular by increasing the normal prices of similar goods or increase the amount of the bill compared to the issued by acquiring loan, the court may reduce the amount of the claim based on the average rate of short-term loans for replenishment of working capital issued by credit institutions to business entities in the domicile of the debtor at the time of the introduction of observation. Such a reduction can be made by the court in that case, if you look while the actual inclusion of interest on the loan in the size of the primary requirements of the undertaking also set up a symbolic on the size of the interest accrued to the due date of performance of the obligation.
While inclusion in the register of requirements of creditors under the credit agreement, under which the loan is repaid by the borrower through monthly payments for a certain period of fixed monetary amounts, which primarily takes into account the interest over all specified in the contract the period of the loan (annuity repayment loan), if the observation was entered before the expiration of the term of repayment of the loan, the amount of outstanding principal debt is recalculated based on the amount of interest calculated at the date of introduction of supervision.
Contained in this paragraph, the rules for determining the size of the claim may not be enforced by the court in the case of insignificance of the period between the introduction of monitoring and performance of the obligations (in particular, if it is less than one month).
4. During the observations occurred prior to the initiation of bankruptcy proceedings, creditor claims (as stated in the monitoring procedure, and not declared) in analogy with the tenth paragraph of paragraph 1 of article 81, the third paragraph of paragraph 2 of article 95 and the third paragraph of paragraph 1 of article 126 of the bankruptcy Act payable under the terms of the obligation interest and penalties are not charged. Instead, the amount of the principal requirements, by analogy with paragraph 2 of article 81, paragraph four of paragraph 2 of article 95 and paragraph 2.1 of article 126 of the Law on bankruptcy from the date of introduction of the monitoring and prior to the date of the introduction the following procedures of bankruptcy accrue interest at the rate of refinancing established by the Central Bank of the Russian Federation on the date of introduction of supervision.
Flight moratornye interest during the observation period are not included in the register of requirements of creditors and are not counted when determining the number of votes held by the creditor at creditors ' meetings.
In connection with this statement when the creditor of his claim is not observed, and in any subsequent bankruptcy proceedings in determining the amount of his claim in accordance with paragraph 1 of article 4 of the Law about bankruptcy the interest rate is determined as of the date of introduction of supervision.
5. Within the meaning of paragraph 1 of article 4 of the Law on bankruptcy for inclusion in the register of creditors of percent for wrongful using another's money funds (article 395 of the civil code), their size is defined proceeding from discount rate of Bank percent at date of the introduction of surveillance.
6. For requirements about payment of percent for using another's money funds (article 395 of the civil code) is subject to the rules of the fourth subparagraph of paragraph 2 of article 4, second paragraph of paragraph 3 of article 12 and paragraph 3 of article 137 of the Law on bankruptcy.
7. By virtue of paragraph 3 of article 137 of the Law on bankruptcy moratoria the interest accrued in the course of bankruptcy procedures on the basis of paragraph 2 of article 81, paragraph four of paragraph 2 of article 95 and paragraph 2.1 of article 126 of the Law (including the observation time), payable in the procedures of financial rehabilitation, external management and bankruptcy proceedings in the course of settlements with the creditors simultaneously with the repayment of the principal requirements to settlement on sanctions.
8. Moratoria the interest is charged only on the amount of the principal claim; the interest they accrue.
If the court stopped the proceedings in connection with the full repayment of creditors (including in part moratory%) in the course of financial rehabilitation in accordance with the debt repayment schedule or in the course of external administration under external administration plan (second and third paragraphs of paragraph 1 of article 57, second paragraph of paragraph 6 of article 88, the second paragraph of paragraph 6 of article 119 and the second subparagraph of paragraph 2 of article 120 of the Law on bankruptcy), the creditors shall not, after the termination of the proceedings to require the debtor to pay the difference between moratorium and payable under the terms of the commitment percentages.
If approved by the meeting of creditors with the debt repayment schedule in the course of financial rehabilitation or approved by meeting of creditors the plan of external management provided partial repayment included in the register of claims (for example, no redemption moratoria percent), after termination of the proceedings in the bankruptcy case in connection with the repayment requirements on the schedule or plan, creditors can abseitova right to demand from the debtor payment of remaining unpaid moratoria percent, unless otherwise provided in the schedule or plan; as otherwise may be provided, in particular, as the absence of the right to pay such interest, and the right to demand surcharges are not moratoria, and be credited under the terms of the obligation percent.
Moratoria the interest part of the interest on the collateral requirement of the lender to be paid in virtue of the first subparagraph of paragraph 1 and the first subparagraph of paragraph 2 of article 138 of the bankruptcy Law mainly before requirements of other creditors.
9. In the event of termination of proceedings on bankruptcy on the grounds envisaged by paragraph seven of paragraph 1 of article 57 of the Law on bankruptcy (including as a result of repayment by the debtor of all is included in the register of claims in the course of the observation or the repayment of such claims in the course of any bankruptcy proceedings by a third party under articles 113 or 125 of the Act), the creditor is entitled to present the debtor in order abseitova requirements for the recovery of the remaining moratoria of interest that accrued during the bankruptcy proceedings according to the rules of bankruptcy Law (including explanations given).
10. When considering bankruptcy proceedings, the court in the course of any bankruptcy proceedings establish that the debtor either affiliated with it, the creditor has addressed with the statement for recognition of the debtor bankrupt, knowing about having a place in fact, the solvency of the debtor and by pursuing unjustified unlawful for the debtor to benefit from the introduction of bankruptcy procedures (such as, for example, the interest rate reduction, or suspension of the proceedings, or the lifting of arrests), the court, in accordance with article 10 of the civil code is entitled, if the debtor continues to this moment to remain solvent and it is in the interests of creditors, terminate the bankruptcy case in relation to paragraph 1 of part 1 of article 150 of the Arbitral procedural code of the Russian Federation. In this case, the debtor must pay interest subject to accrual under the terms of the obligation (and not moratory interest) during the period of bankruptcy procedures. If these circumstances are established by the court at the termination of the proceedings otherwise (in particular, because of the seventh paragraph of paragraph 1 of article 57 of the Law on bankruptcy), the court may specify in the definition of such termination to the debtor's obligation to pay for the period of the bankruptcy proceedings subject to accrual under the terms of the obligation and not moratoria, interest.
11. To recognize become invalid the paragraph of the first or third paragraph 4 of the resolution of Plenum of the Supreme Arbitration Court of the Russian Federation from 23.07.2009 No. 63 "On current payments under monetary obligations in a bankruptcy case".
12. The explanation given in paragraphs 3 to 5 and 11 of this decree, are applied by the courts when considering cases on bankruptcy on which the first bankruptcy proceedings were introduced after the regulation has been published on the website of the Supreme Arbitration Court of the Russian Federation.