Creditors are only entitled to moratorium interest in cases of personal bankruptcy - Supreme Court of the Russian Federation
October, 28 2021

The creditor does not have the right to recover from the debtor citizen who has withdrawn from the bankruptcy procedure, the interest and forfeit in the amount that was provided for by the original agreement, the Supreme Court of the Russian Federation decided in the case of Zinaida Tarasova. The creditor can demand the collection of any sanctions only in a truncated - "moratorium" amount, according to the published ruling of the Supreme Court of the Russian Federation. Moratorium interest is a special, reduced sanction for defaulting a debt in bankruptcy. It replaces any other sanctions for late performance of obligations for the period of the insolvency procedure. Moratorium interest is fixed and equal to the refinancing rate of the Central Bank of the Russian Federation. Tarasova's bankruptcy case was initiated in 2018 at the request of the Razvitie-Stolitsa bank due to delays in payments on a loan of 21 million rubles. At that time, the debt was equal to the full amount of the loan, plus 2.5 million rubles of interest and 1 million rubles of forfeit. In February 2019, the Moscow Arbitration Court introduced a debt restructuring procedure against Tarasova, declared her bankrupt in August of the same year, but in October the proceedings were terminated due to the full repayment of the debt included in the register, with moratorium interest. However, a few months later, the bank again filed a petition for Tarasova's bankruptcy. It considered that she owes another 3.85 million rubles - the interest and forfeit stipulated in the loan agreement from February to October 2019 (the period from the introduction of the restructuring to the termination of the first insolvency case). The courts considered that Razvitie-Stolitsa bank was entitled to this recovery. In October 2020, the court declared Tarasova bankrupt and introduced a procedure for the sale of property with the inclusion of all 3.85 million rubles in the register of claims. The appeal replaced this procedure with debt restructuring, which was then accepted by the cassation. The courts considered that since the bankruptcy case was dismissed, then there is no reason for the collection of sanctions in the moratorium amount, interest and forfeit should be paid at the contractual rates. However, the Supreme Court of the Russian Federation, to which Tarasova complained, did not agree with this. They recalled the position of the Supreme Arbitration Court of the Russian Federation, formulated in 2013, according to which a creditor in bankruptcy can collect only moratorium interest from the debtor, even if the insolvency case was terminated due to the repayment of the debt, the conclusion of an amicable agreement and other circumstances listed in paragraph 1 Article 57 of the Bankruptcy Law. These "explanations are also applicable in case of bankruptcy of citizens," the Supreme Court of the Russian Federation emphasized. In the Tarasova case, the bank accrued interest for the period when the moratorium was in force in the first insolvency case. Therefore, the establishment of interest on the basis of the terms of the loan agreement was "illegal", decided the board of the Supreme Court of the Russian Federation. She also pointed out that the moratorium interest accrued in the first bankruptcy case is not taken into account when determining the signs of insolvency. "Consequently, moratorium interest (MI) does not give the creditor the right to initiate a new bankruptcy case," the Supreme Court of the Russian Federation definition says. The Supreme Court of the Russian Federation canceled the acts of appeal and cassation, sent the dispute for new consideration to the court of the second instance.

Tatyana Dzhulai
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