The Economic Court of Kyiv refused to cancel the sale of Ostinvest’s the sale of Ostinvest’s debt to Investohills

04.11.2021 The Economic Court of Kyiv refused to satisfy the claim of “Ostinvest” LLC against “Investohills Vesta” Financial Company LLC (in case No. 910/13192/21) for invalidating the assignment by the Guarantee Fund for “Investohills Vesta” of the right of Credit claim of “Fortuna-Bank” to “Ostinvest” under the credit line Agreement No. 04KL/05/2170/legal entity dated 31.08.2015.

According to court materials, on 31.08.2015 “Ostinvest” transferred an integral property complex to “Fortuna-Bank” for a mortgage at the address: Zhytomyr region, Ovruch district, Bilokaminka village, Budivelnykiv str., 38.

09.11.2016 – that is, shortly before “Fortuna-Bank” was declared insolvent (this happened in January – 2017) – deposit funds of “Bestom” LLC (UAH 10 million) were also provided as collateral for this financial institution as collateral for Ostinvest’s debt obligations.

At the same time, on 23.03.2021, the Northern Economic Court of Appeal in case No. 910/17629/18 (910/15195/19) satisfied the claim of “Investohills Vesta” on applying the consequences of the invalidity of the relevant transaction – the Pledge Agreement dated 09.11.2016 and recognized “Investohills Vesta” as the mortgagee under the mortgage agreement dated 31.08.2015.

This decision was made by the court, including taking into account the fact that before entering into a pledge agreement with “Best” LLC (which “Ostinvest” considers the basis for recognizing its debt obligations to “Fortuna-Bank” as repaid), the bank prematurely terminated the pledge agreement for the property right to dispose of deposit funds, which was concluded with “Ukroilprodukt” LLC, thus violating the NBU’s ban on the bank releasing collateral for credit operations until full repayment borrowers of debt.

According to the conclusions of the Northern Economic Court of Appeal, since the repayment of Ostinvest’s debt to Fortuna-Bank did not take place properly, the grounds for termination of mortgage legal relations arising from the mortgage agreement dated 31.08.2015 have disappeared, and the mortgage is valid. Accordingly, this is why the financial company “Investohills Vesta” was recognized as the mortgage holder, since it bought out the corresponding rights of claim from the DGF.

The Kyiv Economic Court stated that the circumstances established by the Northern Economic Court of Appeal in case No. 910/17629/18 (910/15195/19) are of primary importance for the case No. 910/13192/21 mentioned at the beginning (on the claim of “Ostinvest” against “Investohills Vesta”), and therefore the court considers that the financial company “Investohills Vesta” proved the validity of the mortgage under the mortgage agreement dated 31.08.2015 and the fact that this financial company owns the rights of the mortgagee.

“The plaintiff [Ostinvest] did not prove in accordance with the procedure established by law the termination of obligations under the mortgage agreement dated 31.08.2015 under the register number 294 and the impossibility of including the rights of claim under such an agreement in the contested agreement on the assignment of the right of claim dated 28.12.2019 № FB-PV-12/19-1 [concluded between the DGF and “Investohills Vesta”], “the decision of the Economic Court of Kyiv summarizes from 04.11.2021.