In some cases, a person is entitled to start the procedure of personal bankruptcy?
Alexei Afonin: the Citizen is obliged to apply for a Declaration of bankruptcy, if the total debt to creditors exceeds 500 thousand rubles, and the delay is three months. To apply to the arbitration court is obliged not later than 30 days after the occurrence of specified conditions. The citizen has the right not to wait for the occurrence of these circumstances, if you anticipate the possibility of bankruptcy, and apply early.
Initiate bankruptcy proceedings can only he a citizen?
Alexei Afonin: No, the initiators of bankruptcy of a citizen may also be creditors of the citizen or the IRS.
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What are the problems in the mechanism of personal bankruptcy?
Alexei Afonin: currently, the personal bankruptcy continues to be too complicated, time consuming and costly. The dominant is the procedure of sale of property of citizens-debtors, the cases, the approval of a plan of debt restructuring are rare.
Alexei Afonin: Causes of the unpopularity of restructuring rooted in the low, irregular or absent income of the debtors. Also lenders do not agree on long-term installment because of the uncertainty in the corresponding schedules of payments.
At arbitration courts, there is no uniformity to the approaches to the sale of assets and determination of the level of income. Each bankruptcy individually, not every objection of the debtor against the sale of property accepted, any income of the debtor for the restructuring toLgov.
the Debtor is usually advantageous to proceed immediately to the procedure of sale of property to reduce the time of the hearing, to reduce the risks of challenging transactions to limit the awareness of lenders and their ability to make demands. The hasty recognition of a citizen bankrupt is fraught with infringement of the rights of creditors in the case when the property is hidden and unscrupulous Manager carries out tasks on search and discovery.
when you first enter a debt restructuring, a decision on bankruptcy was adopted later, it is guaranteed that creditors have time to state their demands. During restructuring it is possible to more details to perform the transaction of the debtor, to take measures for their remedy.
Can the debtor and the creditor to settle?
Alexei Afonin: the settlement agreement in bankruptcy proceedings citizens are approved quite rarely. The conclusion of the settlement agreement demonstrates mutually beneficial terms for the parties. For example, the debtor extinguishes the principal debt, and the creditor waives penalty interest. The negative effects are eliminated when the bankruptcy is terminated upon the approval of the settlement agreement.
Alone should highlight the bankruptcy of the dead (bankruptcy estates). It occurs when contacting the heirs and creditors, and in case of death of the citizen declared bankruptcy, but did not live up to the court hearing. Of the deceased debtor in the process of replacing the person who accepted the inheritance.
If a person is declared bankrupt, he is absolutely write off all the debts?
Alexei Afonin: Personal bankruptcy is not exempt from certain types of debts. In addition to the current claims that have arisen after going to court, and liabilities directly associated with the person (salary, alimony, moral damages, etc.) remains the responsibility of the owners and managers of the company for damages or vicarious liability.
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discharge of the debtor from the obligations is not the purpose of bankruptcy law. Termination of execution of obligations applies in exceptional situations. Otherwise, unscrupulous people without any risk can accumulate credits, obviously intending not to return.
the Minimum amount in which the cost of bankruptcy of a natural person, in practice, can reach 150-200 thousand rubles. Therefore, in situations where the size of the debt reaches the minimum level, it is wise to abandon the procedure. If the debtor will not be funds to pay for the procedure, it will be stopped.
What to consider when deciding to start or not to start the procedure of personal bankruptcy?
Alexei Afonin: when making the decision on initiation of bankruptcy procedure, you should weigh the pros and cons. For example, if you cannot repay the mortgage the court’s recognition of insolvency may result in the sale of real estate at deliberately low price. Consider all the nuances without knowing the mechanisms of bankruptcy and relevant experience is impossible, so the best solution is to turn to professionals to obtain comprehensive legal advice on bankruptcy issues of individuals and take advantage of the subsequent legal support of the process.
What is lost the past the procedure of personal bankruptcy? In some cases, you suggest, what are not advised to undergo the process of personal bankruptcy?
Alexei Afonin: the Debtors do not know enough about the restrictions imposed on the bankrupt, such as the obligation 5 years point to the fact bankruptcy when applying for cueditor.
within three years from the date of completion in respect of a national of the procedure of sale of property or termination of proceedings on bankruptcy in the course of this procedure he is not entitled to occupy positions in management bodies of legal persons who otherwise participate in the management of a legal entity.
within ten years from the date of completion in respect of a national of the procedure of sale of property or termination of proceedings on bankruptcy in the course of this procedure he is not entitled to hold positions in the management bodies of the credit institution, otherwise participate in the management of the credit institution.
within five years from the date of completion in respect of a national of the procedure of sale of property or termination of proceedings on bankruptcy in the course of this procedure he is not entitled to occupy positions in management bodies of insurance companies, non-governmental pension Fund, management company, investment Fund, mutual Fund and private pension Fund or micro-Finance companies and otherwise participate in the management of such organizations.
Possible abuse: when bankruptcy will be the only reason not to pay the debt?
Alexei Afonin: of Course, possible. The most “popular” abuse of debtors, such. First: early withdrawal of assets or the silence about them when filing for bankruptcy.
How difficult is it to figure out what property was the debtor shortly before he started the procedure of bankruptcy?
Alexei Afonin: to Trace what property had the debtor prior to filing of the bankruptcy petition, if it is not subject to registration or of registration in a special register, can be difficult.
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If the statement of the debtor deemed valid, it is unlikely that the financial Manager is interested to independently carry out measures on search of property of the debtor. A reward of 25 thousand rubles (it was originally 10 thousand rubles), obviously with the necessary zeal will not do this and he needs help.
Another abuse: in the register of creditors of the debtor affiliates included with his creditors, the purpose of which – control of the creditors ‘ meeting to determine the order of sale of the property and address other significant issues of bankruptcy. In addition, the emergence affiliated (dummy) creditors contribute to the increase in the share registry and the bankruptcy estate by reducing the shares of other creditors.
in this case, to do bona fide creditors, whose share is declining?
Alexei Afonin: To protect the interests of bona fide creditor uses extensive practice of challenging the inclusion in the register of requirements of “their” creditors, acquired within the framework of bankruptcy procedures legal entities.
some possible abuse?
Alexei Afonin: Third: approval of loyal financial Manager. In practice, there are obstacles to achieve the desired unscrupulous arrangements between a debtor and a particular Treasurer on the conduct of bankruptcy with the desired result.
bona fide creditor may counteract this, in part, by complaints and litigation actions of financial Manager to the Prosecutor, the Federal service for state registration, SRO, to arbitration. Also to claim compensation of damages with a financial Manager and self-regulatory organizations. And to require the dismissal of financialpralaimejo from the performance of his duties or otherwise.
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the Fourth type of abuse of the Commission by the debtor of specific crimes in the preparation or during the bankruptcy. Often the actions of the debtor can detect signs of the crimes provided by article 159 of the criminal code (Fraud), part 1 of article 303 of the criminal code (Falsification of evidence in a civil case). For compulsion of the debtor to a bona fide lender behavior makes sense to fix the violations and to achieve excitation of criminal cases.
How would you propose to improve the procedure of personal bankruptcy?
Alexei Afonin: Perhaps the only thing that I would like to wish in this respect: consistency and clarity in judicial practice on cases on bankruptcy of individuals, which would allow to predict and estimate risks for individuals with a greater degree of probability to the client.