Inclusion of property into the bankruptcy estate is not in the competence of the court
July 10, 2019

As part of the bankruptcy case, the financial manager filed an application for the inclusion of property in the debtor's bankruptcy estate. This property was acquired during the marriage period and executed on the debtor's spouse. The financial manager believed that the court should issue a judicial act on the inclusion of this property in the debtor's bankruptcy estate.

According to the Bankruptcy Law, one of the duties of a financial manager is to take measures aimed at finding, identifying and returning the debtor's property to the bankruptcy estate. But neither the norms of the Bankruptcy Law, nor the provisions of other regulatory legal acts provide for the court to allow applications to include the debtor's property in the bankruptcy estate.

In addition, according to the explanations of the Plenum of the Armed Forces of the Russian Federation No. 48 of December 25, 2018 "On some issues related to the peculiarities of the formation and distribution of the bankruptcy in bankruptcy cases", the spouse of the debtor, who owns property under common ownership, has the right to go to court general jurisdiction requiring the division of this property prior to its sale in bankruptcy proceedings.

The question of the inclusion of property in the bankruptcy estate of the debtor must be decided by the financial manager independently, out of court. The court is not authorized to decide on the inclusion of property in the bankruptcy estate.

This position was voiced in court by the representative of the debtor, objecting to the satisfaction of the application of the financial manager. The court upheld the arguments of the representative and issued a decision on the refusal to satisfy the application for the inclusion of property in the bankruptcy estate. The interests of the debtor were represented by the lawyer of the Law Office of the city of Moscow "ZASCHITA" – T.I. Klepikova.

Klepikova Tatyana