The courts recognized Investohills as the new creditor of T. E. K.

25.11.2021 The Economic Court of Kyiv refused to satisfy the claim of LLC “T. E. K.” to the liquidator of Bank “Kambio” and to LLC “Financial company “Investohills Vesta” (in case No. 910/12113/19) for invalidating the results of the auction for the sale by the Guarantee Fund for “Investohills Vesta” of the rights of claim of Bank “Kambio” to LLC “T. E. K.” under the loan agreement No. 129/08-13 of 28.08.2013 (the loan amount was UAH 30 million, secured by land plots in the Kyiv region).

During the trial, T. E. K. LLC tried to prove the absence of debt, taking into account, as it was assured, the operation to repay the debt at the expense of the company’s deposit funds that were in Kambio bank.

At the same time, Kambio bank transferred the rights of the loan claim to T. E. K. LLC as collateral for the NBU as collateral for refinancing debt obligations. And in case of early repayment of the debt of T. E. K. LLC to Kambio, this bank would have to pay its debt to the regulator. What was not done. According to the court’s conclusions, taking into account the circumstances of the case, this also “confirms the fact that there is no real receipt of funds from T. E. K. LLC to the account of Bank Kambio PJSC” (quote).

Thus, the Kyiv Economic Court took into account that on 19.10.2021 the Supreme Court refused to satisfy the cassation appeal of T. E. K. LLC and upheld the decision of the courts of previous instances in case No. 910/399/20, by which T. E. K. LLC again refused to satisfy the claim against the DGF to invalidate the sale of debt to Kambio bank for Investohills Vesta.

Within the framework of consideration of Case No. 910/399/20, the courts established the following circumstances:

– the transfer of funds was carried out within the limits of Kambio bank, during the period of obvious inability to fulfill its monetary obligations, without attracting real funds to pay for the contract;

– such repayment violated the essence and purpose of restrictions established by NBU Board Resolution No. 510/BT of 19.08.2014 on accepting settlements under contracts exclusively through the NBU correspondent account;

– taking into account the restrictions established by the NBU Board Resolution No. 510/BT of 19.08.2014, it is from this account that funds should be debited during transactions involving the transfer of funds from the bank’s customer accounts, and it is on this account that funds should be reflected in case of their actual receipt;

– the settlement 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;

– since the transaction carried out on 11.09.2014 regarding the transfer of funds by the company in the amount of UAH 30 million is void, the contracts concluded as a result of such an operation are void.

Quote from the decision of the Economic Court of Kiev dated 25.11.2021:

“Taking into account the principle of legal certainty, the circumstances are established in case No. 910/399/20 regarding the absence of real receipt of funds to the bank account due to the transfer of TOB “T. E. K.” 11.09.2014 funds in the amount of 300000000 UAH in repayment of the loan under the loan agreement No. 129/08-13 of 28.08.2013, the nullity of the specified operation for the transfer of funds due to the requirements of paragraph 7 of Part Three of Article 38 of the law of Ukraine “on the deposit guarantee system individuals”, do not need to be re-proved during the consideration of this dispute.

<…> The court concluded that the claims for invalidating the results of public bidding for the sale of PJSC Bank Kambio the right of claim under the loan agreement No. 129/08-13 dated 28.08.2013 and invalidating the agreement No. 14 on the assignment (purchase and sale) of the rights of claim and property rights dated 22.10.2019 are unfounded, and therefore the claim should be rejected.”