Home Новости Company's news Investohills Vesta wins lawsuit against Aurum Finance and AMC Praktika

Investohills Vesta wins lawsuit against Aurum Finance and AMC Praktika

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On October 20, 2021, the Kyiv Economic Court granted the claim of Investohills Vesta Financial Company LLC against FC Aurum Finance LLC and Praktika-2020 LLC (formerly known as AMC Praktika LLC) in case No. 910/10787/16 on applying the consequences of invalidity of a void transaction.

According to court materials, Investohills Vesta bought the rights of claim of the bankrupt Ukrainian professional Bank (UPB) from the DGF under a number of loan agreements, guarantee agreements, collateral and mortgage agreements, including the agreement on opening a tranche credit line No. 48 dated 26.06.2008 and collateral agreements (the borrower was LLC Edge and the mortgagors were LLC Edge – 1, DP Edge Property).

The primary plaintiff in case No. 910/10787/16 was the liquidator of the UPB (its legal successor – Investohills Vesta), which motivated its claim by the fact that on 28.05.2015 UPB and FC Aurum Finance LLC entered into an agreement on the assignment of rights of claim under the mentioned agreement on opening a tranche credit line No. 48 of 26.06.2008, and, as the representative of the DGF noted, this happened in violation of the NBU Resolution No. 293/BT of 30.04.2015 (on classifying UPB as problematic), which prohibited UPB from transferring property and assets and obliged the UPB to make all payments in national currency through a correspondent account opened with the NBU.

In addition, the DGF stressed that the UPB, having assigned the right of credit claim on 28.05.2015, alienated property rights at a price lower than usual by more than 20% of the amount of property claims against LLC “Edge”, which is a sign of the nullity of the transaction. Also, the liquidator of the UPB pointed out that LLC “FC Aurum Finance”, on the one hand, being a depositor of the UPB, and on the other hand, buying the rights of credit claim from it, acquired advantages over other creditors, not established for it by law or internal documents of the UPB, which according to the law “on the deposit guarantee system of individuals” again is a sign of nullity of the transaction.

With this in mind, the DGF (and subsequently Investohills Vesta) asked the Kyiv Economic Court to apply the consequences of the invalidity of a void transaction – an agreement on assignment of rights of claim dated 28.05.2015, concluded between the UPB and FC Aurum Finance LLC; to oblige FC Aurum Finance LLC and AMC Praktika LLC to return to the UPB the rights of property claim obtained under the agreement on assignment of rights of claim dated 28.05.2015, concluded between UPB and FC Aurum Finance LLC and under the agreement on assignment of rights of claim dated 02.07.2015, concluded between FC “Aurum Finance” LLC and AMC Praktika LLC; return the original documents, according to the act of acceptance and transfer dated 28.05.2015.

On October 20, 2021, the Kyiv Economic Court granted the specified claim on the basis of the mentioned circumstances established, including by court decisions in cases No. 910/6980/17 and No. 910/21767/15.

Thus, the decision of the Economic Court of Kyiv of 12.02.2020 in case No. 910/6980/17, which was left unchanged by the decision of the Northern Economic Court of appeal of 17.09.2020 (Cassation proceedings on the complaint of the state enterprise Edge Property were closed by the decision of the Supreme Court of 02.03.2021), determined the following:

  1. in the absence of funds in the correspondent account, PJSC UPB was unable to execute Payment Order No. 82 dated 28.05.2015 on the transfer of funds from the current account of FC Aurum Finance LLC, opened in PJSC UPB, to the transit account opened also in PJSC UPB in accordance with the terms of the agreement on assignment of rights of claim dated 28.05.2015, concluded between PJSC UPB and FC Aurum Finance LLC. Thus, the bank did not actually receive funds, but the structure of the bank’s balance sheet was adjusted by changing the accounting of monetary obligations.
  2. taking into account that there was no sufficient balance of funds on the correspondent account of PJSC UPB and it was actually impossible to conduct a transaction for payment of the contract on assignment of rights of claim, the bank, contrary to the provisions of Resolution No. 293/BT, made an artificial transaction to transfer the accounting of funds from the account of FC Aurum Finance LLC to the account specified in the contract on assignment of rights of claim dated 28.05.2015. That is, in fact, the bank alienated property free of charge, assumed obligations without establishing the counterparty’s obligation to perform relevant property actions, refused its own property claims, which is the basis for the nullity of the transaction in accordance with paragraph 1 of Part 3 of Article 38 of the law “On the deposit guarantee system for individuals”.
  3. considering that as a result of the conclusion of an agreement on assignment of rights of claim dated 28.05.2015 between PJSC UPB and FC Aurum Finance LLC, the funds were not reflected either in the correspondent account or in the bank’s cash desk – such funds are not highly liquid, and therefore cannot be used to satisfy creditors ‘ claims. So, having concluded an agreement on assignment of rights of claim with FC Aurum Finance LLC, the bank alienated its own assets, which in no way improved its liquidity and led to insolvency and inability to fulfill monetary obligations to other creditors in terms of the amount of assignment, which is the basis for the nullity of the transaction in accordance with paragraph 2. Part 3 of Article 38 of the law “On the deposit guarantee system of individuals”.
  4. the price for assignment, which FC Aurum Finance LLC must pay in favor of the bank, according to the terms of the agreement on assignment of rights of claim (Clause 5 of the agreement) is 5 million UAH, while the amount of property claims of the bank to the borrower is 2.25 million dollars and 2.23 million euros (equivalent at the NBU exchange rate on the date of assignment – 98.17 million UAH). Thus, the bank, having concluded a transaction of assignment of the right of claim, alienated property (property rights) at a price significantly lower than usual (more than 20%), which is the basis for the nullity of the transaction, which is the basis for the nullity of the transaction in accordance with paragraph 3 of part 3 of Article 38 of the law of Ukraine “On the deposit guarantee system for individuals”).
  5. FC Aurum Finance LLC is a lender of the bank under the relevant agreements, in particular, under the agreement No. 315-UOC for joining the agreement of comprehensive banking services of business entities dated 18.05.2015 and the Deposit Agreement No. 245 of the term bank deposit “Deposit line “Flexible” dated 20.05.2015. The contract of assignment of the right of claim dated 25.05.2015 was concluded in order to provide FC Aurum Finance LLC with the opportunity to meet its monetary claims out of Turn, which caused a change in the order of satisfaction of creditors ‘ claims for obligations that arose before the date of introduction of temporary administration in the bank, which is the basis for the nullity of the transaction, which is the basis for the nullity of the transaction in accordance with paragraph 7 of Part 3 of Article 38 of the law “on the deposit guarantee system of individuals”.
  6. since the contract of assignment of the right of claim dated 28.05.2015 is void by virtue of the law, in such circumstances LLC “FC “Aurum Finance” did not acquire property rights under such a contract, and therefore, the latter had no legal grounds for alienation of such rights AMC Praktika LLC, in connection with which the contract of assignment of rights of claim from 02.07.2015 contradicts the requirements of Parts 1, 2 of Article 319, Part 1 of Article 321 and Article 658 of the Civil Code of Ukraine and it does not bear any legal consequences.

Similar circumstances were established by the decision of the Kyiv Economic Court of 14.02.2020 in case No. 910/21767/15, which was left unchanged by the decision of the Northern Economic Court of appeal of 19.01.2021 (the cassation appeal of AMC Praktika LLC was returned to the complainant by the decision of the Supreme Court of 19.05.2021).

Recall that the state enterprise Kray Property, Kray LLC, Kray 1 LLC, Kray-2 LLC, AMC Praktika LLC were associated with Anatoliy Yurkevich. In the state register, the owner of FC Aurum Finance LLC and Kray-1 LLC, as well as the director of Kray-2 LLC, is Valentina Pshenichnaya.