Supreme Court: DGF legally sold T. E. K.’s debt to Cambio to Investohills

19.10.2021 the Supreme Court refused to satisfy the cassation appeal of T. E. K. LLC and upheld the decision of the Kyiv Economic Court of 09.11.2020 and the decision of the Northern Economic Court of appeal of 02.06.2021 (in case No. 910/399/20), by which T. E. K. LLC refused to satisfy the claim against the DGF for invalidating the sale of the plaintiff’s debt to “Cambio” bank for the financial company Investohills Vesta.

We are talking about debt under the loan agreement No. 129/08-13 dated 28.08.2013 (the loan amount was UAH 30 million, secured – land plots).

These decisions were made by the courts taking into account the recognition by the Guarantee Fund of transactions for repayment of the debt of T. E. K. LLC to Cambio bank at the expense of deposit funds.

Thus, the Northern Economic Court of Appeal in its decision of 02.06.2021 noted:

“The transfer of funds was carried out within the bank, during the period of obvious inability to fulfill its monetary obligations, without attracting real funds to pay for the contract.

The panel of judges agrees with the conclusion of the court of first instance that such repayment violated the essence and purpose of restrictions established by the NBU Board Resolution No. 510/BT of 19.08.2014 on accepting settlements under contracts exclusively through the NBU correspondent account.

Settlement under these agreements took place within the bank – as a result, there was no real receipt of funds to the bank’s account, but the structure of the bank balance sheet was adjusted by changing the accounting of monetary obligations.”

The Supreme Court in the same context added:

“The company [T. E. K.] filed claims for cancellation of the fund’s decision to approve the sale of assets of the Bank’s property (in a certain part) and for invalidation of the results of the auction, without being a participant in the relevant auction.

At the same time, the company did not justify (and did not prove in the courts of previous instances) that at the time of filing a claim in this case, anyone would have made any claims related to the result of these auctions. The very theoretical possibility of making such claims in the future does not indicate a violation of the rights/legitimate interests of the company, especially since it will not be deprived of the right and opportunity to object to them (if they are presented) on general grounds.

In addition, the Supreme Court in its decision of 19.02.2020 in case No. 639/4836/17 noted that “the legislation does not establish the grounds for invalidity of the contract on assignment of the right of claim in the event of transfer of a claim under an obligation with the amount of which the party does not agree, or if certain components of such debt are accrued groundlessly. Circumstances related to the actual performance or non-performance or partial performance of obligations under the relevant agreement are not determined by the norms of substantive law as the basis for invalidating a transaction On Assignment of the right of claim under such agreements (assignment agreement). The issue of proper or improper performance by the parties of obligations under the loan agreement, the right of claim for which was transferred under the disputed agreement, is subject to investigation within the framework of the dispute on debt collection and does not affect the legality and validity of the agreement on assignment of the right of claim. By itself, the fact of entering into an assignment agreement does not create an unconditional obligation for the borrower to pay the debt exactly in the amount specified in the disputed agreement at the time of its execution. If a corresponding claim is received from a new creditor, the debtor is not deprived of the right to express its objections to such a claim on the basis of the evidence available to it on the main obligation arising on the basis of the loan agreement.”

Similar legal conclusions are set out in the decisions of the Supreme Court of 16.10.2018 in case No. 914/2567/17, of 19.11.2019 in case No. 924/1014/18, of 28.01.2020 in case No. 924/1208/18, of 10.04.2020 in case No. 346/2447/17, of 07.06.2021 in the case No. 648/3596/19 (production No. 61-12225sv20)”.