If the borrower cannot repay all claims of creditors on time and in full, then by decision of the court he can be declared bankrupt. In this case, the bankruptcy estate of the debtor is evaluated. All property owned by the company at the start of bankruptcy proceedings is subject to valuation. Money earned from the sale of these facilities is used to pay off debt.
Legal Aspects
The procedure for the formation and evaluation of the bankruptcy estate is prescribed in the Federal Law No. 127 “On the insolvency of the borrower”. The register includes all property recorded on the balance sheet of the enterprise, and revealed during production. Very often seized objects undergo changes. Some of them can be returned to the debtor, and the second is included in the bankruptcy estate, as it can be used to pay off debt. Exceptions include objects withdrawn from civilian circulation, property rights, social funds, rented premises. The lack of ownership of the objects must be confirmed by documents.
Manager
The duty to form a bankruptcy estate lies with the trustee, who is appointed by the court. The main goal of this event is the proportionate satisfaction of creditors' requirements. The procedure itself lasts up to one year, but if there are reasons, it can be extended for another 6 months. Therefore, the applicant must not only understand the essence of the bankruptcy procedure, but also comply with a number of requirements. The manager performs the role of property manager. He must draw up a register of objects, evaluate them and propose a distribution scheme of funds from the sale of property.
Manager functions:
- Carrying out activities aimed at preserving the bankruptcy estate, in particular the seizure of property.
- Search for objects that belong to the debtor and are under the jurisdiction of third parties for the purpose of concealment.
- Publishing bankruptcy information, drawing up a register of creditors, making settlements with them.
- Assessment of property at market value and inventory.
- Providing the court with reports on the sale of property and settlements with creditors. Based on this document, information on the liquidation of a bankrupt enterprise is entered into the register.
Powers and rights of the manager
Their list is quite large:
- Assessment and ensuring the safety of the debtor's property.
- The search for hidden property and its return to the bankruptcy estate.
- The right to dispose of the property of the debtor as part of the duties.
- Search and collection of debts in relation to the debtor.
- Involving third parties in the production and paying for their services at the expense of the debtor.
- Drawing up a register of debtors.
- Conclusion of transactions with the permission of creditors, holding meetings with them.
- Submission of claims on persons bearing subsidiary liability.
- Providing a report on their activities monthly at all stages of production.
- Compensation for losses caused to creditors through the fault of the manager.
- The right to apply for suspension.
- The right to receive remuneration for their activities.
Reporting
During the entire production, the manager provides the court with a report on the sale of objects, documents on repayment of creditors' claims. The manager is also obliged to report to the committee of creditors, if there are more than 50 of them. He also appoints all meetings, within which all issues of bankruptcy proceedings are resolved.
Control over the activities of the manager rests with the arbitration court and the committee. They can also decide on the removal of the manager if they occur (Article 144 of the Federal Law):
1. Unfair performance of duties.
2. Causing damage and refusal to compensate it.
3. The incompetence of the manager.
4. Violation of the interests of creditors.
5. Identification of circumstances by which a person cannot exercise his powers, namely:
- Personal interest in the matter.
- Causing losses in other cases and their non-compensation.
- Open bankruptcy proceedings against the trustee.
- Persons with administrative penalties.
Special types of property of the debtor
For strategically important and social facilities, special requirements apply. So, the manager of the bankruptcy estate must ensure their safety and intended use. If in relation to this property the new owner decided to provide paid services, then their charging should be carried out in accordance with the law. These features should be taken into account when including objects in the bankruptcy estate.
Property register includes:
- Fixed assets: durable items, for a period of not less than a year: technical equipment, buildings, structures, tools, vehicles.
- Current assets are tangible assets that are used up to one year in a single production cycle.
- Intangible assets are patents, marks, brands, software, and intellectual property that generate profit.
- Third party debts for unpaid services.
Ad
If the company declares itself bankrupt, then for documentary evidence of this fact, you need to publish information in the media. An insolvency declaration can be made as part of the liquidation process. At the same time, the legal entity should not have enough funds to carry out all settlements with creditors. Formal publication is necessary for the correct conduct of the liquidation process in order to inform all creditors of bankruptcy.
The announcement should be published in the newspaper Kommersant with the submission of the head or representative of the organization or employee of the FSN. This opportunity arises from creditors and depositors if the debt exceeds 100 thousand rubles. in front of another company or 10 thousand rubles. before the depositor, and the payment term came more than 3 months ago.
Ad requirements
An ad must contain:
- The exact name of the company.
- Her legal status.
- Stage of external management.
- Information on financial insolvency.
- The process of financial recovery.
- The decision to open bankruptcy proceedings.
- Bankruptcy Closure Data.
All information must be reliable and documented. Otherwise, the arbitral tribunal may refuse the requirement to recover the debt and blame the administrator for false information.
Feed pattern
There is a clear publication design algorithm. A correctly composed announcement must be signed by the head of the enterprise. A separate copy of the message must be completed by hand. The electronic version of the document should be given to the publication. Documents confirming the rights of managers must also be provided.
The announcement is accepted for publication if:
- Copies of OGRN and TIN.
- Two copies of the message.
- The document in which the court decision is registered, and its copies.
- An accurate description of the events that occur at the time of publication in a bankrupt company.
- Receipts for payment for services (180 rubles per 1 cm 2 of the advertisement area).
Features of the publication procedure
General information:
- Information is updated in the source every Saturday.
- The application is submitted in electronic form through the website of Kommersant.
- All official bankruptcy information has been stored in the archive since 2004, access to which is open on the website.
- All publication costs are borne by the debtor.
- Applications and payments are accepted at most three days before the release of the issue (that is, until 14:00 on Wednesday inclusive). According to the law, the bankruptcy trustee must publish an announcement within 10 days after the appointment.
- If there are spelling, punctuation errors in the text, editors may reject the application.
- On the newspaper’s website you can find information about whether the organization is bankrupt by SRO, organizer, bankruptcy trustee or case number.
Bargaining
All bankruptcy estate presented in the register should be valued at market value. For this purpose, appraisers may be involved whose services are paid by creditors. Valued objects go to auction. The procedure for the sale of property is detailed in art. 84 Federal Law. The sale of property of the debtor from the bankruptcy estate is carried out at open bidding. Information on bankruptcy and information on property 30 days before the auction, the manager must publish in the media. Starting price is fixed at market value. The place of bidding is determined by the general meeting of creditors.
Due to heavy burdens in practice, no one buys an asset for the first three months. At each subsequent auction, the price is reduced by 10%. The auctions themselves are held with increasing prices. According to statistics, property is often sold in the 3-4 procedure with a discount of 30-40%.
The new bill proposes an alternative bidding procedure. The property will have an initial sale and minimum price. If no applications are received at the first stage, then the price will be reduced by 10% or to the minimum level. This will significantly increase the chances of the first successful bidding and reduce the cost of financing the bankruptcy estate. At the same time, there is a danger that large creditors will abuse their influence if there is loyalty on the part of the manager. In addition, the Ministry of Economic Development reduces the terms of bidding up to 40 days from the date of the decision to hold them. Here are some changes to the code in the near future.