If a bankruptcy procedure has been introduced with respect to your counterparty, in accordance with Art. 410 of the Civil Code you can not carry out an offset
March 7, 2019

In each case there are certain nuances. Peculiarities of legal regulation in a case of a bankruptcy procedure must be accounted for. Therefore, offsetting of a counter-claim is not allowed from the date of initiation of a bankruptcy case against one of its parties.

Moreover, the debtor will not have such a right to the new creditor when buying claims (receivables) at the auction for the sale of the bankrupt company's property in accordance with the Federal Insolvency (Bankruptcy) Act of 26.10.2002 No. 127-ФЗ.

By virtue of paragraph 1 of Article 384 of the Civil Code of the Russian Federation, unless otherwise provided by law or contract, the right of the original creditor is transferred to a new creditor to the extent and under the conditions that existed at the time of transfer of the right.

When the claim is transferred, the volume of objections of the debtor to the new creditor is preserved in the form and volume that existed at the time of the assignment and could have been addressed to the original creditor. That is, in connection with the replacement of the claimant, the position of the debtor does not change for the worse for him or for the better.

Thus, since the defendant, according to the current legislation, did not have the right to set off against the original creditor, in respect of which the bankruptcy proceedings were open, the defendant does not have such a right to set off, also, with respect to the new creditor.

This conclusion was reached by the courts of all three instances, supporting the arguments of the claimant. The courts did not recognize the netting made by the defendant and satisfied the claimant's claims in full.

The interests of the plaintiff were represented by an employee of our Law Office - Kolodiy Alexandrina Igorevna.

Alexandrina Kolodiy