Some citizens with material obligations begin to run away from problems and hide from creditors. The lender suffers in this situation, who needs to close at least the loan body. The solution to the problem is the initiation of bankruptcy proceedings for the absent debtor.
What kind of process
This is a simplified bankruptcy operation, used if the debtor citizen or the manager of the company, which actually interrupted its activity, went missing and it is not possible to establish its location (Article 227, Clause 1 of Law No. 127-FZ). That is, the process can be launched both in relation to an individual and a legal entity, including an individual entrepreneur.
An exception
In addition, the situation with the initiation of bankruptcy of an absent debtor in relation to a legal entity is allowed, even if the location of the general director is established. The reasons may be as follows:
- The property of the debtor enterprise is not enough to cover legal costs.
- Over the past year, there have been no transactions on the account of the organization.
- There are other points confirming that the company does not carry out activities (Article 230 of Law No. 127-FZ).
Next, we consider the features of the process and figure out what to do if the deadbeat is gone and it is impossible to establish a location.
Signs
Not all lenders understand when it is necessary to file a lawsuit in court to initiate bankruptcy proceedings for an absent debtor and to collect debts from it by force.
Indisputable signs of a disappeared debtor are:
- Over the past year, no transactions have been made in the person’s bank accounts. First of all, the arbitration judge submits an application to the Tax Service to provide information on the accounts of a legal or natural person. After receiving a response for all banks where accounts are open, a request for statement is made. Information is checked for the previous twelve months from the date of filing the claim. If information about the absence of financial transactions is confirmed, then this is an obvious sign of an absent debtor.
- The citizen does not receive any reaction to any notifications of debt repayment, including phone calls and letters.
- Departures to the place of residence do not give results: either they do not open the door, or people living at this address declare that this person does not live there. As well as authorized persons interview relatives and neighbors of the debtor. If this does not give any results, then there is a sign of loss.
- The debtor does not have any wealth. The person in charge of the case sends requests to the traffic police, Rostekhnadzor and other bodies that contain information about movable and immovable property of citizens. If the answer confirms that the debtor has no property or its value does not cover financial debt, then the bankruptcy process of the absent debtor begins.
- If the debtor is a legal entity that interrupted its entrepreneurial activity, and all the above signs are identified, then we can conclude that the company manager is lost.
The material component of bankruptcy proceedings
Any legal procedure involves costs, so the question of financing the bankruptcy proceedings of an absent debtor is of concern to many. Since there is no person in charge, legal expenses will have to be covered by someone else.
According to the general rules, the following is provided: if during the trial it turns out that the debtor’s property is not enough to cover the costs, then all the obligations under this paragraph rest with the applicant. Therefore, an authorized body, say, a tax authority, can file a lawsuit for a simplified bankruptcy procedure only if there is a possibility of finding property whose value can cover the associated costs. Moreover, documents confirming this fact must be attached to the statement of claim.
In addition, before filing an application, the authorized body must make sure that, according to the results of the bankruptcy procedure of the debtor, it will be possible to close obligations on mandatory payments. Otherwise, going to court makes no sense. If there is no chance of receiving a debt return, the tax office can simply remove the company from the Unified State Register of Legal Entities.
If a bankruptcy creditor submits a statement of claim, he or she will be paid by the third party (for example, another creditor).
Features of the bankruptcy of the absent debtor
The procedure has many nuances. Among them are the following:
- court of Arbitration. The trial is carried out by the judge independently within one month. After that, he makes a decision. In this case, such concepts as material, external management, as well as observation, are excluded;
- bankruptcy petition of the absent debtor. A bankruptcy creditor or an authorized state body files a lawsuit to the bankrupt to declare bankruptcy. As noted earlier, this is only possible if it is likely to cover obligations;
- notification. The arbitration manager shall notify all creditors known to him of the insolvency of the debtor;
- lender requirements. During the first month of the proceedings, all creditors have the right to present their claims to the arbitration manager;
- property. This is a conditional step. However, if the fact of the discovery of ownership is established, the simplified bankruptcy procedure may go into the standard;
- decision. Claims of creditors are satisfied in accordance with the sequence provided for by the bankruptcy proceedings. Payment for manager services and other material expenses are carried out of turn.
This is not the whole list of process features, but it lists the main points that occur at each specific step. It is with this approach that it is possible to obtain positive results with minimal monetary losses.
Simplified bankruptcy
Under 217-, the bankruptcy of an absent debtor can be carried out in a simplified form if:
- Payment of legal fees is paid by the bankruptcy creditor. This greatly speeds up the process.
- Payment shall be made by an authorized body referring the case to the Arbitration Court. In this situation, confirmation will be required that the funds for doing business exist. This fact significantly enlivens the process, and all steps are carried out in accordance with the current legislation of the Russian Federation.
Advantages and disadvantages of the procedure
When considering the bankruptcy law of an absent debtor (organization) in a simplified form, one can distinguish both advantages and disadvantages. Of the pros, you can name the following:
- one stage - bankruptcy proceedings;
- minimum terms;
- registry closing duration - 1 month;
- cost savings;
- an alternative to illegal bankruptcy methods.
Minuses:
- founders and the former manager can be brought to subsidiary liability;
- there are no conditions for conducting an economic analysis under the Bankruptcy Law, the main purpose of which is to identify the inability to fulfill its monetary obligations, that is, is the company really in critical condition. If there is no research, then creditors will not be able to prove the machinations of the debtor if necessary.
Trial
During the trial, the judge does not appoint an observation. This is not necessary, since most often in simplified bankruptcy the manager and all his representatives were not found and it is not possible to establish their whereabouts. The conduct of the procedure will not bring satisfaction of the basic needs of creditors - the safety of existing property. And if it is absent, then observation is not necessary.
If there is a need to open bankruptcy proceedings, then in this case the judicial authority has the right to make a decision on its own. There is no need for prior consultation with creditors, as is done during bankruptcy.
Procedure results
The failure of the absent non-payer is considered a difficult process, the outcome of which may be unpredictable. The problem is that in practice quite often the absence of the debtor is explained by personal initiative, which has additional intent.
Filing a lawsuit for a simplified bankruptcy procedure for an individual is a completely hopeless step for any lender. However, even in this case, Russian law makes it possible to compensate for losses. If we approach the simplified procedure with all responsibility, we can ensure that a certain amount passes as compensation for income tax.
The current tax code has a clause allowing the possibility of equating bad debts with unrealized expenses. In addition, all payments related to litigation can be included in this category. Experienced businessmen actively use this opportunity, therefore they always calculate in advance how profitable the project will be.