Complaint against the action or inaction of an arbitration manager: features of registration and filing

If you are sure that your rights are being violated by the insurance company in a bankruptcy case, you do not need to tolerate this. It doesn't matter whether you are a creditor or a bankrupt. Each person or legal entity in the cases under consideration retains rights, the violation of which is unacceptable. As soon as such violations have been recorded, it is important to immediately file a complaint against the arbitration manager in an attempt to resolve the problematic issue.

The AU, despite its key role at some stages of bankruptcy, is only an employee who does not have the right to self-government. Naturally, his actions may cause disagreement on the part of the participants in the case, but this dissatisfaction is not always based on objective grounds. Let's figure out when it is necessary to write a complaint, and when appealing the actions of the arbitration manager is useless.

The role of the arbitration manager

There are several participants in bankruptcy cases:

• Bankruptcy creditors;
• Debtor;
• People whom the debtor caused harm: their health, financial condition, etc.;
• Arbitration manager.

The main task of this specialist is to monitor the bankruptcy process. The AU works at different stages of the bankruptcy process, but at each stage it has its own tasks, supported by different powers. There are three types of arbitration managers:

• Temporary;
• External;
• Competitive.

But in any case, the manager takes upon himself most of the financial issues related to the debtor’s property. It can also liquidate previously conducted transactions with this property. The work of the AU is controlled by the judiciary, and its task is to satisfy the demands of creditors as much as possible or, if the debtors’ problems are not so serious, to improve their financial situation. In this case, the manager can work alone or collaborate with the head of the legal entity.

general characteristics

The arbitration manager is a key figure at the stage of bankruptcy proceedings. Its legal status is determined by Art. 20, 20.3, 127 and 129 of Law No. 127-FZ of October 26, 2002. The candidacy is approved by the court hearing the financial insolvency case. The specialist must meet a number of requirements:

• citizenship of the Russian Federation;
• membership in a professional self-regulatory association;
• higher education;
• 1 year of experience in holding a managerial position;
• successful internship as an assistant to an arbitration manager for 2 years;
• passing a qualifying exam;
• absence of disciplinary, administrative, criminal penalties that impede the implementation of activities.

The professional liability of the arbitration manager is necessarily insured (Article 24.1 of Law No. 127-FZ). The minimum amount of coverage is 10 million rubles. The actual amount is calculated based on an assessment of the book value of the debtor's assets.

The bankruptcy trustee participates only in bankruptcy procedures of legal entities. This is due to the specifics of the stage. It is allowed only when working with debtor companies. In case of insolvency of citizens, similar functions are performed by the financial manager. However, its status is somewhat different, and its powers are determined by other articles of the law.

Actions of the manager for appeal

Before filing a complaint against the actions of the arbitration manager, it is important to make sure that they really have the necessary grounds. After all, this specialist has a wide range of responsibilities and powers, and there are not many restrictions. There is no other way, because otherwise bankruptcy issues will take too long to resolve. But this does not mean that managers can afford negligence or even crimes. They are also subject to certain restrictions.

If there are no boundaries, this will entail a violation of the interests of the participants or unjustified expenses. When these violations are proven, the manager may be punished and compensate for losses. Moreover, such issues are regulated by Federal Law No. 127 “On Insolvency”.

When a complaint is made against the actions of the bankruptcy trustee, it is stated too vaguely. The law only addresses certain possible violations. For example:

• If the rights and interests of persons participating in the process are not respected (the manager works in his personal interests or the interests of other persons);
• If the obligations described in Articles 20 and 129 of the said law are not observed;
• If the deadlines and forms for submitting reports described in Articles 26 and 143 are violated;
• Failure to comply with a program designed specifically for the sale of property described in Article 130.

The Supreme Arbitration Court of the Russian Federation divided all types of offenses into two main categories:

1. Ignoring direct responsibilities.
2. Failure to comply with work regulations and government instructions.

In addition, the responsibilities of SRO managers are being withdrawn.

Violations for suspension

As mentioned above, a variety of violations can be attributed to arbitration managers. But these violations are not always serious enough to warrant filing a complaint. That is why we will highlight only those issues that are suppressed by the court - if not forever, then for a long time. So, among the most serious violations are the following:

• Direct responsibilities are not fulfilled. For example, the arbitration manager fails to act in terms of holding meetings of creditors or does not submit opinions on the work performed. These are his immediate responsibilities, failure to fulfill which indicates his professional incompetence;
• There are omissions in the conduct of creditor meetings, which should be held with a certain regularity. This is necessary to keep creditors who are interested in receiving financial compensation in the loop;
• There is a reason to hold an urgent meeting of creditors, but the manager ignores this reason;
• Bankruptcy proceedings were carried out, but reports on them were not presented to the courts;
• AU deliberately delays the procedure, but this is not necessary. In the end, everyone suffers losses;
• The assessment results are hidden from creditors. This behavior of the AC arouses suspicion and suggests the illegality of the operation;
• The creditor does not approve the price of the property for bankruptcy proceedings or make an effort to bring the property to a sale to satisfy debts.

You can start a procedure to appeal against the manager’s inaction or illegal actions if direct violations have been observed. The criterion by which it can be determined that a violation actually occurred is financial losses. If none were observed, it doesn’t matter either. Even the possibility of such losses may serve as a sufficient basis. In addition, the consistency of bankruptcy proceedings at the meeting plays an important role. Participants in the case must always be aware of what is happening. Also, reports on the procedure must be submitted to the NFRSB.

Acceptable ambiguous actions

The trustee does not work on bankruptcy cases independently. According to the law, he can hire and use the services of all specialists whose help he seems necessary. Moreover, he does this not at his own expense, but at the expense of the debtor and, indirectly, the creditors. They may not have enough money after bankruptcy proceedings, since payment for the services of all these professionals is carried out from the bankruptcy estate. That is why it is important to control the appetites of an overly trying manager.

In addition, the manager can perform actions that are considered controversial, but at the same time are not prohibited by the court:

• Conclude lease agreements for the debtor’s real estate on his behalf;
• Involve other specialists in the work (here we mean the help of lawyers);
• Refuse certain creditors to present certain debtor documents or case documentation;
• Contest (bankruptcy trustee) the debtor's transactions (for example, actions for the sale of real estate and other valuable property).

Typically, a complaint against a financial manager will be considered unfounded if he acted in accordance with the instructions agreed upon at the meeting of creditors. According to court rules, it is the meeting of creditors that is the main regulatory body. It’s another matter if this meeting was not held or, due to the fault of the manager, not all creditors were included in the queue.

Where to file a complaint

The next pressing question: where to complain about the bankruptcy trustee in bankruptcy? If you decide to complain about the AC, you can contact the following organizations:

1. Arbitration court. The first instance where a complaint is filed is the arbitration court. You can submit a document here, since it is this body that must control the activities of the appointed AU. According to the law, participants in the case can complain, while complying with the requirements for claims of the Arbitration Procedure Code of the Russian Federation. In addition, in court you need to justify your opinion and provide evidence. Not all complaints of the injured parties are satisfied in court. To fully satisfy the requirements for appealing the actions of managers, it is advisable to hire professional lawyers. They will help you draw up documents correctly or dissuade you from starting a deliberately losing business.
2. Another option is a complaint to Rosreestr. The third part of Article 14.13 of the Code of Administrative Offenses of the Russian Federation states that violations or inaction of the administrative authority entail administrative liability (if this is not a crime for which criminal liability already arises). But in order for the case to be considered as quickly as possible, a complaint against the manager must be sent to the territorial office of Rosreestr. If you send it to the central one (in Moscow), the case will either not be considered, or it will take longer than necessary.
3. SRO. For example, a sample document is submitted to self-regulatory organizations (SROs) if the AU does not fulfill its professional duties. This body monitors the work of its own employees, since all independent companies can legally work only after they are included in the SRO. If a complaint is received against a specialist by the SRO, it is considered by a commission specially created for this purpose - the disciplinary committee.
4. Federal Tax Service. This is the authorized body dealing with bankruptcy cases. You can complain here when the bankruptcy trustee harms creditors or the debtor (for example, if he took over a bankrupt enterprise).

In addition to the listed government bodies, there are other organizations where you can complain about a dishonest AU. For example, a complaint against the bankruptcy trustee is filed with the prosecutor's office, the Ministry of Finance or the Ministry of Internal Affairs. In order for a complaint to be considered, it must be taken into account that each organization minds its own business. If you send a document to an authority whose competence does not involve working with financial crimes, the culprit will not be properly punished.

Who can submit

It is worth considering that the list of persons who can file a complaint against the manager is legally limited. Only direct participants in the bankruptcy case have the right to appeal the actions of the manager:

1. Debtor whose property is managed by the manager.
2. A creditor who aims to collect the debt as completely as possible in his favor.

If a citizen or company is only indirectly connected with the bankruptcy procedure, then they cannot complain against the insolvency administrator. Their complaint will be left without consideration.

Contents of the complaint

This is a procedural document drawn up in writing. The document must provide accurate information to determine who is the applicant and who will have to respond. In addition, you must indicate to which body the complaint is being sent.

But in terms of its structure, the document must meet certain requirements. The most important thing is to adhere to a certain structure. So, the document must consist of several mandatory points:

1. Introductory part. In this part of the document you need to enter where it is being submitted, set the details of the court and the participants in the process. Do not forget to indicate specific names, full names and addresses (including the city). The bankruptcy case number is also indicated, otherwise the court will not be able to find out what the claim is about.
2. Descriptive, or, as it is called, basic. It needs to reveal what exactly the problem is that caused so much negativity. It is necessary to describe the actions or inactions of the AC that aroused suspicion. But statements should not be unfounded. Each claim must be supported by articles from the law.
3. Demanding (the second name of this part of the document is operative). In this part, the injured party must indicate what exactly it requires, taking into account the powers of the body to which this document is submitted. For example, you can demand to cancel some action of a specialist or exclude him from the process.

You can understand what a document should look like using a sample.

Deadlines

Complaints against the AU are sent within 30 days from the moment the problem is identified (for example, the deadline for action by the bankruptcy authority has passed, and the report has not been submitted). But the law provides for several cases when the time frame can be shifted. For example, if the applicant mistakenly sent a complaint to the address of the wrong body, which is competent to resolve such problems. If there are no problems with sending the papers, the judge personally reviews the complaint. The court hearing is held no later than a month after receipt of the papers. If the address is wrong, they come back.

How to submit a document

There are two ways to submit an application - in person or by registered mail through the postal system. Creditors can expect measures imposed on the manager after filing a complaint with the court.

But in order for the trial to take effect, strong evidence of guilt is necessary.

The bankruptcy trustee has the right to appeal; he can do this in the form of complaints or statements sent to the court, as well as in the form of claims submitted to the relevant authorities.

A complaint sent to the court can guarantee the imposition of a disciplinary fine on the violator, and, if serious violations are proven, removal from official position.