Complaint against the actions of the arbitration (bankruptcy) manager

How to file a complaint against an arbitration manager in court?

An important fact is that any unlawful activity of the manager or reasons for removal must be proven and recorded by a certain decision or court.

In order for the court to accept the case of dismissal, and also for the temporary manager to compensate for the damage in accordance with the court. a petition is filed to remove the arbitration manager.

There is a special form and the petition is submitted solely on the basis of compelling reasons and available evidence of unlawful or improper activities of the manager.

In addition to the petition, a complaint is also filed against the actions of the bankruptcy trustee. Effective preparation of such documents requires qualified assistance from specialists with knowledge in the field of legislation and regulatory legal relations in bankruptcy cases.

If you don’t know how to solve a problem, you should enlist the help of our well-established specialists. They know what disqualification of an arbitration manager is and will help you implement the procedure in practice. You will be provided with advice from a bankruptcy lawyer, as well as qualified assistance on any issue. The main thing is to contact the arbitration court today and order a complaint against the bankruptcy trustee. Only in this case everything will be done correctly. Good luck with your future work. And be sure to take into account all our tips and recommendations.

Who can file a complaint against the arbitration manager?

The Federal Law “On Insolvency (Bankruptcy)” determines the duties of the arbitration manager. Among them are the protection of the debtor’s property, reasonable expenses, analysis of the debtor’s financial condition and others. Violation of the duties imposed by law, as practice shows, is the main reason for filing a complaint against the insolvency administrator. Persons whose interests are in one way or another affected by the person who conducted the bankruptcy procedure may file a statement regarding the inaction of the arbitration manager or actions that resulted in losses.

These include:

• creditors;
• debtor;
• citizens in whose favor a judicial act will be issued to recover damages to life and health;
• representative of the debtor's employees;
• representative of the debtor's founders;
• representative of the owner of the debtor's property;
• authorized bodies.

Despite the fact that a self-regulatory organization does not belong to the persons participating in a bankruptcy case, it is also vested with the right to file a petition to remove its members from participation in the case if a violation of the law is established. This is most likely due to the fact that the SRO is, in accordance with Art. 35 of the Federal Law “On Insolvency (Bankruptcy)” by a person participating in the insolvency process. The legislator left the list of persons who may be participants in such a process open.

The bankruptcy trustee does not pay the current payment

Expert opinion

Kuzmin Vladimir Timofeevich

Legal consultant with 6 years of experience. Specializes in the field of civil law. Member of the Bar Association.

What is the procedure for appealing the actions of an arbitration manager who does not pay current utility bills? 1. In accordance with paragraph 1 of Art. 5 of the Federal Law of October 26.

Creditors' claims for current payments are not subject to inclusion in the register of creditors' claims; such creditors are not recognized as persons participating in a bankruptcy case (clause 2 of Article 5 of Law No. 127-FZ).

Consequently, collection of current payments is carried out in accordance with the general procedure established by law for their collection, that is, in the manner of claim proceedings.

Consequently, the bailiff does not have the right to refuse to initiate enforcement proceedings on a writ of execution, on a decision to collect debt on current payments. To force collection of current payments from a debtor who is in bankruptcy proceedings, the claimant must contact the Bailiff Service to initiate enforcement proceedings.

remuneration to the bankruptcy trustee (or those officials who replaced him).

• wages and severance benefits to employees;
• payment for those persons who were additionally involved by the arbitration manager to resolve the case and who do not go through the first degree order.

• communal payments;
• rents;
• taxes;
• excess amounts of severance pay due to employees;
• fines, penalties, penalties, sanctions and other payments.

• The fourth priority is everyone else to whom the bankrupt owes money.
• The algorithm of actions for collecting current payments from a debtor includes the following main points:

• First, a demand is submitted in writing, addressed directly to the debtor or to the arbitration manager.

Where can I file a complaint against the bankruptcy trustee?

A complaint against the bankruptcy trustee can be filed with:

1. arbitration court . Most often, the actions/inactions of the bankruptcy trustee are appealed by filing a complaint with the court. Such an application must comply with the requirements of the Arbitration Procedure Code of the Russian Federation, sent by a person who is a participant in the bankruptcy procedure, and can be considered by an arbitration court in the presence of the applicant;
2. Rosreestr . It is better to submit a complaint to the Rossreestr to the territorial administration, since sending it to the central office can significantly increase the time for its consideration;
3. self-regulatory organization . The SRO is responsible for monitoring the activities of bankruptcy trustees and, if violations of the bankruptcy law are detected, it has the right to take appropriate measures. The SRO has a special disciplinary committee that deals with the professional activities of members of the organization;
4. Federal Tax Service . A complaint to the tax authority is usually filed by creditors when the bankruptcy trustee causes them harm;
5. Prosecutor's Office, Ministry of Internal Affairs, Ministry of Finance.

These bodies, depending on the violations committed by the bankruptcy manager, are also authorized to consider complaints from persons participating in the bankruptcy case.

Competition manager. Role and Responsibilities

In filing any bankruptcy, the main role is played by the arbitration manager (hereinafter referred to as AO).
This specialist is the link and intermediary between the court, creditors and debtor. How quickly the problem situation will be resolved and how quickly all the requirements of credit institutions will be met largely depends on his professional skills. The bankruptcy procedure for a legal entity consists of 4 stages: supervision, reorganization, external management and bankruptcy proceedings. Each of these stages is accompanied and conducted by a bankruptcy trustee. The judge can assign a separate specialist to each stage, or entrust all the work to the same employee. Depending on what stage of bankruptcy the manager is leading, it may be called accordingly:

• at the observation stage - temporary;
• at the reorganization stage - administrative;
• at the stage of external management - external (management of the enterprise passes entirely to the manager);
• at the stage of bankruptcy proceedings - bankruptcy (this stage is the final stage upon recognition of bankruptcy).

The bankruptcy trustee (hereinafter referred to as the bankruptcy trustee) is approved by the judge after the announcement of the report that the previous stage of bankruptcy has been completed. After this, the court announces the start of bankruptcy proceedings. In cases where the manager’s work at the previous stages did not cause dissatisfaction among all participants in the case, the judge may extend the employee’s work to the final stage. The meeting of creditors, in turn, may make a petition to replace the specialist and search for a new candidate for this position. He can even be appointed from another self-regulatory organization (hereinafter referred to as SRO).

Usually, the search for a bankruptcy trustee does not take much time, since there are always enough people willing to receive 7% of the value of all the debtor’s property sold. The professional activity of the bankruptcy manager is carried out from the moment of the court decision until the bankruptcy proceedings are completed. The manager is obliged to provide the results of his work along with the attached documents that will confirm the sale of the property of the legal entity. In cases where a company has lost all of its acquired property, finding the corporate assets is very problematic. In the case of legal entities, no one is eager to work for several months while the bidding lasts for a fixed rate of 30 thousand rubles.

In the process of filing bankruptcy, the AU resolves a large number of issues. Quite often, it is not difficult economic conditions that lead to ruin, but the stupid and irrational management of company managers. At the stage of external management, various effective measures are actively taken to correct previously made mistakes in the management of the company. The specialist who is appointed by the court at this stage of the bankruptcy process must obviously be a first-class manager and manager.

For several months, a court-appointed specialist has been running the company, trying to return it to a stable existence. But quite often all the efforts made do not lead to a positive result. A bankruptcy trustee is introduced into the bankruptcy process only when a bankrupt company cannot be saved.

The role of the bankruptcy trustee is to sell the property of a potential bankrupt as profitably as possible in order to be able to fully fulfill the requirements of the creditors. An employee specializing in bankruptcy must have a higher education as a lawyer or economist. Moreover, he must be a member of one of the SROs.

Another important role of the bankruptcy manager is to find the most effective ways to solve the company's financial problems. The duties of the bankruptcy trustee include:

• preliminary inventory and assessment of property value;
• ensuring the safety of all documents;
• entering all data on property into the unified bankruptcy register;
• timely informing all interested parties about the current state of affairs;
• timely informing the employees of the debtor company about the upcoming dismissal 2 months in advance, as well as timely payment to them on the last working day;

Rights vested in the competition specialist:

• challenging any suspicious transactions made by the previous management over the past 3 years;
• sale or disposal in the most profitable way of the property of a potential bankrupt;
• closing all bank accounts of the debtor, except for the one that will be used to pay off all debts;
• making official requests to any organization about the presence of unaccounted property of a company that has fallen into bankruptcy;
• refusal to participate in bankruptcy.

To fully form the image of the KU, we will consider all the conditions that a candidate applying for this position must meet. All of them are listed in the twentieth article of Federal Law No. 117 (On Bankruptcy). There is also a list of conditions, full compliance with which contributes to prompt enrollment in the SRO:

• citizenship of the Russian Federation;
• having a higher education diploma in economics or law;
• 1 year of work experience as a manager;
• 2-year preliminary practice as an assistant to an arbitration manager (each organization can set its own requirements);
• “excellent” grade in the exam according to the approved program for financial managers;
• no criminal record;
• absence of dismissals from management positions and exclusions from other SROs;
• availability of valid insurance in the amount of ten million rubles (professional liability insurance).

Actions of the manager subject to appeal

Throughout the insolvency case, the bankruptcy trustee is forced to make responsible decisions. This employee plays key roles in all office work. His work must be carried out in full compliance with the law. In cases where the rights of the parties to the case are not respected or the arbitration manager commits illegal actions, the relevant regulatory authorities must be notified.

Before you write a complaint about the actions of an employee, you need to make sure that there really are all grounds for it. The fact is that the Control Committee performs a wide range of responsibilities and has many powers for this. But there are not so many restrictions on his activities. All this is necessary to quickly resolve all problematic issues related to the recognition of bankruptcy. Otherwise, this process may take a long time.

The main document that regulates the preparation of written complaints against an employee’s work is federal law number 127 “On Insolvency”. This document contains vague wording of violations and misconduct:

• trampling on the rights and ignoring the interests of all those involved in the case;
• action in the interests of a certain circle of persons;
• own interest in the matter;
• failure to comply with the obligations prescribed in articles 20 and 129 of this law;
• ignoring deadlines and failure to comply with the correct execution of reports prescribed in the 26th and 143rd articles of this law;
• violation of the program that regulates the sale of property of a legal entity, noted in Article No. 130 of this bill.

Managers comply with the regulations and rules designated by the SROs of which they are members. The activities of these organizations are regulated by the Government of the Russian Federation and explained by the Supreme Arbitration Court of the Russian Federation. This authority, in letter No. 88 dated December 30, 2004, divided the misconduct and violations of specialists into two types:

• neglect of professional obligations;
• failure to comply with established regulations and Government instructions specified in the relevant letters.

In addition, there are rules that are established by the SRO. In practice, various violations are attributed to the arbitration manager. However, behind these claims there are often unconfirmed statements. And here is a list of those offenses, as a result of which the judge immediately removes the specialist from work:

• failure to fulfill direct professional obligations. Severe violations include the employee’s inaction in the matter of collecting and notifying lenders about the next meeting or failure to present the results of their own activities;
• regular disruptions of lenders' meetings. At this event, interested participants should be notified in a timely manner about the financial situation of the legal entity;
• ignoring requests to urgently organize a credit meeting;
• failure to submit reports on the results of bankruptcy proceedings;
• deliberately slowing down all procedures without obvious need. Such actions lead to unnecessary expenses;
• concealing the results of the examination from creditors, which evaluates the property of a legal entity. Such actions often mean that the employee performed the procedure illegally or has something to hide;
• failure to provide creditors with the opportunity to set prices for the property being sold;
• deliberately slowing down the process of selling property.

It is worth filing a complaint in case of inaction or when direct violations of the duties of the AU are identified. One of the main criteria indicating dishonest work is financial losses. In this case, even potential losses can be an evidence base for assessing the poor quality of the specialist’s work. Coordination of the bankruptcy process with all participants in creditor meetings also plays a special role. Stakeholders must receive up-to-date information in a timely manner.

We will separately consider the actions of the bankruptcy trustee, which are allowed by the court, but at the same time may cause an ambiguous reaction among the participants in the case. During bankruptcy proceedings, the manager quite often turns to representatives of other professions for help. The law allows him to hire those employees whose professional skills he needs in a particular case. These employees are paid for by the insolvency company and are also paid in part by creditors. The parties are advised to monitor this item of expenses of an overly diligent administrator, since after bankruptcy proceedings, with careless expenses, the parties may not have enough funds to pay the invoices.

Let's list a few more working aspects of a financial manager that may cause an ambiguous reaction, but the court does not prohibit them from being carried out:

• concluding lease agreements on behalf of the bankrupt party;
• involving in the work process the required number of lawyers involved in resolving various issues;
• refusal to provide documentation of a bankrupt company or papers from the case to some creditors;
• challenging the debtor's transactions.

If the bankruptcy trustee acts according to the rules agreed upon at the creditors’ meeting, then in this case the court will most likely recognize the complaint as unfounded. Judges always focus on creditor meetings as the main controlling body. If the meeting did not take into account some nuances, or decisions were made that were not unanimous, without taking into account the minority of votes, then the court will also recognize the complaint as unfounded.

Ways to file a complaint against a financial manager

There are the following ways to file a complaint against a financial manager:

• sending a complaint by mail . This method is convenient if the court, organization or government agency is located in another city. The disadvantages of such sending are also obvious: the duration of the actual sending of the postal item, queues at the post office, the inability to make changes to the sent complaint (if, for example, you forgot to attach a document);
• dispatch by courier delivery . This method of sending will cost the applicant more than when using postal services, but, as a rule, the delivery time of the item will be significantly reduced;
• personally . Delivering a complaint in person is the easiest and most reliable way to file a complaint. The advantage of this method is that you will receive a mark on your copy indicating that the application has been delivered. When sending a complaint to a government agency, officials can point out the presence of errors that can be corrected on the spot. The downside is that all participants in the bankruptcy case must receive copies of the complaint, since, otherwise, the court simply will not accept the application for consideration;
• remotely . A complaint to the arbitration court against the actions of the financial manager can be filed through the on-line document submission service “My Arbitr”. Rosreestr, FNL, and the prosecutor’s office also provide the opportunity to send an application in electronic form. When using this method of sending a complaint, the main thing is to follow all the rules that are established by the servers for submitting documents remotely.

The procedure for considering complaints against the actions of the arbitration manager

The specifics of considering complaints about the actions/inactions of an arbitration manager depend on the body or official that is considering the received application, but some general features can be identified.

Such a complaint must be considered within a period not exceeding one month from the date of receipt of the application by the authority. The parties have the right to familiarize themselves with the content of the complaint, the case materials, send objections, provide evidence, and take direct part in the consideration of the complaint.

The result of consideration of the application is the establishment of violations of the law on the part of the arbitration manager or the recognition of the filed complaint as unfounded.

The decision made on the received complaint can be appealed to a higher authority or to the court.

Consequences of removal of a bankruptcy trustee

Violation of the bankruptcy procedure can lead to consequences - the removal of the arbitration manager. Let us note that in addition to the removal of the arbitrator, certain rules may also be applied to him:

1. administrative code;
2. civil code (subsidiary liability of the bankruptcy trustee);
3. criminal code.

It is worth saying that improper performance or failure to fulfill obligations can become not only a basis for removal from one’s obligations. This should include:

• the consequences of removing the bankruptcy trustee from office as a whole;
• excluding him from the self-regulatory organization;
• disqualification if his actions entailed administrative punishment.

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Bankruptcy proceedings

Before looking for a sample complaint and sending an appeal to the appropriate authority, you should carefully understand the nuances of bankruptcy proceedings. So,

bankruptcy proceedings are a procedure that aims to manage the bankruptcy process of a legal entity and cover the company’s debts to creditors. Bankruptcy proceedings are the last step before the final bankruptcy of the enterprise.

As part of bankruptcy proceedings, the court can appoint a so-called bankruptcy trustee, who, in fact, begins to manage the debtor’s property. The point of the bankruptcy trustee's work is that he seeks to cover all debts to creditors, but sometimes he can act in his own interests and look for options for profit by gaining access to the debtor's property.

Also, as part of bankruptcy proceedings, the debtor may be completely removed from the process of managing his own property. This opens up the opportunity for the bankruptcy trustee to make unfair decisions.

You may also be interested in:

• How to become a bankruptcy trustee, his powers, rights and obligations
• What is the responsibility of a guarantor in bankruptcy?
• How are payments to employees handled when a company goes bankrupt?