Protection against challenging transfers of funds totaling 1.6 billion rubles in a six-month period in favor of an affiliated person

The bankruptcy trustee of the bankrupt counterparty discovered a chain of transfers in favor of the Client totaling 1.6 billion rubles on the eve of bankruptcy and appealed to the arbitration court with a statement challenging these transfers.

The Bankruptcy Law provides for the grounds for invalidity of transactions (Article 61.3) that entailed giving preference to an individual creditor within 6 months before and after the debtor's bankruptcy application was accepted when establishing the fact of the person's awareness in favor of whom the preference was made.

The legal peculiarity was the presence of affiliation between the counterparties and the occurrence of transfers in the six-month period before the bankruptcy application was accepted for production, which was the basis of the procedural opponent's claims. The actual circumstances with a high degree of probability assumed a negative result for the Client in the form of collecting 1.6 billion rubles from him.

At the same time, after retrospectively analyzing the history of economic relations, it was revealed that the parties had repeatedly made similar transactions. This fact made it possible to refer in defense to paragraph 2 of Article 61.4 of the Bankruptcy Law, which excludes the possibility of challenging the transaction on the basis of Article 61.3 of the Bankruptcy Law.

As part of the review, the lawyers of ANP Zenit managed to convince the court of the compliance of the transaction with ordinary business activities, despite the significant amount of transfers, and to prove the absence of damage.

Result: Prevention of recovery of a significant amount of money from the Client. Developing a position in which the fact of affiliation is not sufficient to invalidate transactions under clause 2 of Article 61.2, Article 61.3 of the Bankruptcy Law, despite the significant amount of transfers made both within the six-month period before the bankruptcy application was accepted and after its adoption.