Expert Bankruptcy of the counterparty: how to return money and protect the business

When a partner declares himself insolvent, the winner is not the one who resents louder, but the one who acts first and according to the rules.

Imagine a normal situation for logistics and production. You shipped a large shipment with a deferred payment. Or, on the contrary, made an advance payment to the supplier and wait for raw materials. A month later, a message appears in open sources: your counterparty filed for bankruptcy. Money that was “almost you” yesterday becomes a line in the requirements register – and it is far from certain that you will see it again.

This is no longer a rarity. The market has become tougher: cash gaps, sanctions restrictions, supply disruptions and currency swings are hitting companies one by one. The bankruptcy of the counterparty today is not a force majeure, but a well-calculated risk for which the business must be prepared in advance.

Let’s look at the steps that can really be done to not be left with anything.

The big mistake - wait

The most expensive reaction to a partner’s bankruptcy is a pause. “We will wait, maybe they will pay”, “we have a contract and invoices, will not go anywhere”. In bankruptcy, time works almost linearly against the lender: the longer you do not act, the less chance you have of getting your money back.

The fact is that in the insolvency procedure there is a strict logic of queues and deadlines. We missed the deadline, we stood at the end. You don’t have a requirement to participate in the distribution at all. And while you think about it, the debtor’s assets melt: they are withdrawn, sold, transferred to “friendly” companies.

Therefore, the first rule is simple: as soon as there are signs of problems with a partner, react without waiting for official bankruptcy.

Warning Signals: How to See Trouble in Advance

Bankruptcy almost never comes suddenly. It is preceded by months of signs that are visible in open sources:

• Arbitration files (kad.arbitr.ru) – a sharp increase in claims to

companies from other creditors;

• EFRSB notification of the intention of the creditors or the debtor

apply to court;

• Databank of Executive Proceedings of FSSP - growing

debts, account arrests;

• FTS service "Transparent business" - account blocking,

false information in the register, change of director or address;

• Household markers Delayed payments, “loss” of contact

persons, sudden reorganization.

If you see a company that owes you this, - This is a signal not to “wait”, but to accelerate: to collect debt through the court, to receive collateral, to stop further shipments.

The best protection is in the contract. before trouble

Most bankruptcy losses are not “unlucky,” but lack of collateral at the start of the transaction. When the contractor is already falling, there are few options. But if you’ve thought about the risks at the signing stage, your position is very different.

What really works as a defense:

• Pledge property, equipment, goods in circulation. Collateral

The lender is ahead of most others and receives payment.

from the cost of the collateral;

• Guarantee of the owner or related company if

The main debtor is empty, you make a claim to the guarantor;

• Bank guarantee and letter of credit - especially in the foreign trade and large

Supplies: the bank pays, not the “disappeared” partner;

• Controlled advance and phased payment - don't give everything

the amount forward without guarantees of counter performance;

• Retention, security payment, penalty - competently

written in the contract.

In our practice, it is the quality of contractual work that most often determines whether the company will return money or write it off at a loss. One well-thought-out clause on security can save millions - and this is the area where saving on a lawyer is the most expensive.

Contractor is already bankrupt: what to do now

If the procedure is launched, the main task is to get on the register of creditors’ claims in time and correctly. It's about timing.

At the observation stage The requirement must be stated within 30 calendar days from the date of publication of the notice on the introduction of surveillance – otherwise you will not get to the first meeting of creditors, where key decisions are made.

At the stage of competitive production The register is closed two months after the publication of information on the recognition of the debtor as bankrupt. Those who show up later become "registered" - their demands are met last, that is, almost never.

In order to include the claim, it must be confirmed: the contract, invoices and acts, acts of reconciliation, if any - a court decision on recovery. Errors in the documents or calculation of the amount are a common reason why the creditor is denied or reduced claim.

Further, it is important not to “pass the documents and forget”, but to participate: go to meetings of creditors, monitor the actions of the arbitration manager, track the sale of property. The manager proposed by the debtor himself is not always interested in the maximum return of money to creditors – and this should be monitored.

Why it is important to understand your turn

In bankruptcy, all creditors are not equal. First, current payments are extinguished (which arose after the application was accepted), then life and health claims, then salary arrears – and only then the third line, where most commercial debts for supply and services fall.

Inside the third stage, the main debt is paid first, and only then - penalties, penalties and fines. And according to the statistics of procedures, unsecured third-rate creditors return only a small fraction of what they are owed.

The conclusion is unpleasant, but honest: it is impossible to count on “and so everything will be returned to the registry”. The real return of money often comes not from the mass of competition, but from two other tools.

Hidden reserves: contesting transactions and personal liability

When a debtor company has “nothing,” the money almost always hasn’t disappeared – it’s taken out. And the law gives lenders powerful tools to repay them.

Contesting the debtor's transactions. Suspicious and preferred transactions made in the run-up to bankruptcy (usually within a few months to three years before filing an application) may be invalidated. Property and money are returned to the estate and distributed among all creditors. Often this is how the debtor’s “empty” balance is filled.

Subsidiary liability. If the company was brought to bankruptcy intentionally, hidden assets or withdrawn money, its debts are responsible for the controlling persons – the director, founders, and sometimes the actual beneficiary. Their personal property becomes a source of redemption. For a lender, this is often the only real way to get their way when the company itself is a dummy.

Both tools require the initiative and competent work of a lawyer: the court will not do it for you. But here lies the difference between “written off at a loss” and “returned most of it”.

The other side that is forgotten

There is also a mirror risk that affects you. If your partner paid with you before bankruptcy, this payment can also be challenged as a preference transaction and recover the received back, even after a long time. That is, money that you considered a closed issue can be returned as a claim to you.

Therefore, receiving payment from a company that looks shaky, it makes sense to evaluate not only the joy of closed debt, but also the sustainability of the payment itself.

What happens next?

The trend is obvious: bankruptcies in the economy are increasing, and control over them is deeper and more digital. Tax authorities, banks and arbitration courts are increasingly seeing the movement of assets and links between companies. Zero-and-go schemes are getting worse, and lenders, on the contrary, have more tools to get to the money withdrawn and those behind it.

This means that the winners will not be the largest, but the most prepared: those who check counterparties before the transaction, put security in the contract and respond to the first signals, not to a subpoena from the court.

Shortly.

Bankruptcy of the counterparty is not a verdict on your money, but a test of speed and preparedness. Put the security in the contract in advance. Monitor the status of open source partners. At the first sign, act, not wait. And if the procedure is already underway, get on the register in time and use disputed transactions and subsidiary liability to get to real assets.

In modern business, getting your money back is also a job. And it begins long before the partner utters the word “bankruptcy.”

Author: Sidorenko Olga SergeevnaHead of the contractual department of the law firm “PRO LAW”. Since 2015, the company has been accompanying bankruptcy and protecting the interests of creditors, conducting corporate and arbitration disputes. The material is informational in nature.