MOSCOW, 5 March – RIA Novosti. Bankruptcy is one of the ways to get rid of debt. How to declare bankruptcy, who can do it and under what conditions, what will be the consequences for the debtor, as well as how much it costs to declare bankruptcy – in the material of RIA Novosti.
The essence of bankruptcy of individuals
The bankruptcy of an individual is the inability of a citizen recognized by law to pay off debts to creditors in full or to make mandatory payments. For many people, such a procedure is the only legal chance to get out of the financial hole – to write off debt on loans, housing and communal services, taxes and other obligations.
The process is regulated by the federal law of 26.10.2002 N 127-FZ “On insolvency (bankruptcy)”.
Federal Law on bankruptcy with the latest amendments
According to federal law, bankruptcy of individuals implies the recognition by an arbitration court of a citizen's inability to fulfill financial obligations and settle accounts with creditors. The document clearly distinguishes cases when a person is obliged to submit an application, and when he has the right to do it on his own initiative. Any citizen whose total debt to organizations and individuals exceeds 500,000 rubles is obliged to begin the procedure, and the delay has reached three months. However, it is not necessary to wait for the onset of these two circumstances. You can file for bankruptcy and with a smaller amount of debt, for example 200,000 or 300,000 rubles. The initiators of opening a bankruptcy case can also be the creditors themselves or an authorized body, for example, the tax authority.
This is a rather expensive procedure. In addition to the duty, the future bankrupt must pay for posting a message in the Kommersant newspaper, as well as in the Unified Federal Register of Bankruptcy Information. If we add to these expenses the services of a financial manager, the costs of participating in the trial, sending documents by mail, then the amount will approach 100 thousand rubles, or even more.
To make the procedure more accessible, it was simplified in 2020. Now debtors have the opportunity to go bankrupt for free without the participation of judges – through the MFC. The process was called a simplified out-of-court bankruptcy of individuals. Among other things, it is free. Federal Chamber of Notaries: Notaries advise
What does the bankruptcy of an individual give
As a result of bankruptcy, the debt of a citizen stops growing – the accrual of interest, penalties and fines stops – and at the end of the procedure it is written off. As a result, a person gets rid of the need to communicate with bailiffs and collectors. They will not have the right to call or come with claims for past obligations. In addition, bailiffs finish enforcement proceedings and remove all imposed restrictions, such as the seizure of property, a ban on travel abroad.
– Many people think that bankruptcy is a stigma. Allegedly, they will not give a loan, they will not be released abroad, they will be fired from work. All of this is not true. Dozens of people have already received loans after bankruptcy. You can travel abroad not only after bankruptcy, but also during the procedure, and the employer does not even know about the current situation, since neither the citizen himself nor the financial manager is obliged to notify him, '' lawyer Lilia Shikh told RIA Novosti.
Litigation bankruptcy in 2021
When to declare bankruptcy
A citizen of the Russian Federation is obliged to start the bankruptcy process, according to the “profile” Federal Law, when the total amount of debt is more than 500 thousand rubles and there is a delay in obligations within 3 months.
If the debt is less than 500 thousand rubles, but at the same time the citizen is not able to pay it off and is insolvent, then he himself can decide whether to apply or not.
Conditions for bankruptcy of individuals 2021
To conduct bankruptcy proceedings on the initiative of the debtor, the following conditions must be met, which indicate the insolvency of the citizen: – the total amount of debts on loans, taxes and fines, including penalties, is greater than the assessed value of the debtor's property; – there is an FSSP resolution on the end of enforcement proceedings on due to the lack of property available for sale; – the debtor stopped paying financial obligations, which led to a delay; – the official income of a citizen is not enough to make at least 10% of the mandatory monthly payments on loans.
In addition, the following requirements must be met: – the debtor is a bona fide borrower and made attempts to independently resolve the issue with creditors (you can provide correspondence with the bank); – the debtor does not hide his income or property, otherwise the court will refuse to declare bankruptcy. – the debtor is working or trying to find a job (in this case, be sure to be registered with the official employment service).
An individual can also declare himself bankrupt if he has circumstances that prevent the fulfillment of obligations. For example, if a citizen was fired from his job, he became seriously ill, suffered from damage to property, natural disasters and other things.
How to declare bankruptcy
To declare bankruptcy in 2021, you can submit an application and the necessary documents to the arbitration court or contact the MFC.
Stages of bankruptcy proceedings:
1) collection of documents;
2) payment of state fees;
3) selection of a financial manager;
4) submission of documents to the court;
5) consideration of a case, during which the court decides to carry out one of two procedures: debt restructuring or property sale;
6) providing the court with a report on one of the procedures and declaring the citizen bankrupt.
How to file a bankruptcy petition in court
– In order to file for bankruptcy of an individual in court, you can choose one of three options: take it personally to the office of the arbitration court at your place of residence and receive a note of acceptance on your copy, send it by mail or use the “My Arbitrator” system, where the application is uploaded and attachments to it in the form of scans, – said Lilia Shikh.
List of documents for filing bankruptcy
Personal documents for the procedure: – copy of the passport; – TIN; – SNILS; – certificate of lack of registration as an individual entrepreneur; – certificates of marriage and divorce, birth of children; – copy of the spouse's passport; – marriage contract, property division agreement, concluded within the last 3 years.
Documents on the presence of debt: – agreements with banks, microfinance organizations, etc.; – receipts for loans from individuals; – certificates confirming the formation of debt, payment schedules; – court decisions, orders on the initiation of enforcement proceedings by bailiffs; – claims , statements of claim from creditors; – payment claims from government agencies, for example, the tax office, the Pension Fund or the traffic police.
Documents confirming the presence of property and income: – certificate from the place of work in the form of 2-NDFL; – work book; – extract from an individual personal account; – certificates from the Pension Fund and the Social Insurance Fund on the appointment of pensions, benefits, other social payments; – a certificate from the employment service about the status of an unemployed; – certificates of the presence of accounts and deposits, bank statements, certificates of electronic money balances and their transfers; – certificates of state registration of ownership of real estate; – certificate of state registration of a vehicle; – information on the presence of a share in the authorized capital, an extract from the register of shareholders.
Documents on completed transactions for the last 3 years: – copies of agreements on transactions with property, securities, shares in the authorized capital; – copies of contracts of sale, donation, pledge and others.
Documents confirming the existence of circumstances that prevent the fulfillment of financial obligations (if any): – certificate of incapacity for work, disability; – information on incurred losses;
Also, to submit an appeal, you will need: – receipts for sending copies of applications to all persons involved in the case; – receipt for payment of state duty; – receipt for depositing money on the court's deposit to pay remuneration to the financial manager; – application for declaring a citizen bankrupt.
– Restructuring is the restoration of the solvency of an individual by changing the conditions for the payment of debt to creditors. The court can recognize the application as justified and introduce a debt restructuring procedure, – explained Lilia Shikh.
Such an interim court decision suggests that: – the application meets the requirements for it; – the citizen really has a debt to creditors that he is not able to pay off; – he meets the signs of insolvency; – if the application is submitted by a creditor or an authorized body, the debtor there is no objection to him.
If restructuring is not possible, then on the basis of the debtor's petition, a decision is made to declare him bankrupt and introduce another procedure – the sale of property.
After the message about the validity of the application is published, the creditors have 2 months to file claims against the debtor.
In order to be able to apply the debt restructuring procedure to an individual, it must meet the requirements: – to receive a stable income so that, in addition to paying off debts, it can satisfy its basic needs; – not be convicted of economic crimes; – not be prosecuted for administrative offenses related to embezzlement or destruction of property, deliberate bankruptcy; – have not made decisions on bankruptcy within the last 5 years; – have not had a debt restructuring plan for the last 8 years. – The debt restructuring plan is the basis for the implementation of the procedure. It can be offered by both the debtor himself and the creditor or the authorized body. The draft plan is sent to the financial manager within 10 days after drawing up the register of creditors' claims. If no one proposes the project, then at the meeting of creditors the issue of declaring a citizen bankrupt and selling his property will be decided, the lawyer explained.
Realization of property (bankruptcy estate)
If restructuring is not possible, the result of bankruptcy is the sale of the citizen's property from the auction and payment to all creditors in proportion to the debt (taking into account the priority). The court makes an appropriate decision, after which the financial manager within 15 days notifies the creditors and invites them to present their claims.
– The bankruptcy estate includes all property that can be foreclosed, wages and other sources of income. If the debtor owns the property jointly with other persons (for example, a spouse), only his share is subject to seizure. The inventory and assessment of the property is carried out by the financial manager, after which he provides a regulation on the procedure, conditions and terms of the procedure to the court. It also reflects the initial sale price of the property, – said Lilia Shikh.
At the same time, a penalty cannot be imposed: – on a dwelling, if it is the only dwelling; – on a land plot where the only dwelling is located; – on household items, with the exception of jewelry and luxury goods; – on child support; – on retirement and benefits; – income in the amount of the subsistence minimum.
The sale of the bankruptcy estate is carried out at auction. Two months are allotted for their implementation, after which the debt is repaid. If the money received is not enough, the bankrupt is released from its obligations to cover debts to creditors.
However, the law also specifies cases when the cancellation of debts of individuals (on loans, loans, taxes) is unacceptable: – if a citizen is held liable for illegal actions in bankruptcy, including fictitious bankruptcy; – if a citizen has evaded providing the necessary information or provided inaccurate data; – if illegal actions were committed in the performance of obligations, for example, fraud or deliberate destruction of property.
The entire process of selling a citizen's property should take no more than 6 months.
An amicable agreement is a court-certified document that ends bankruptcy proceedings because the debtor and creditors have reached a compromise. It can be concluded at any stage of bankruptcy.
“Such a document stops the actions of the bankruptcy administrator, the citizen proceeds to pay off the debt and the proceedings in the court are terminated,” the lawyer said.
The settlement agreement applies to the claims of creditors included in the register. If disagreements arise between the participants in the process, the terms of the execution of the agreement are considered by the court.
If the terms of the settlement agreement are violated, then the bankruptcy proceedings are resumed, and the procedure for selling the property by auction is applied to the debtor.
Why the court can refuse
– The court refuses to accept the application when there are gross errors in it (it must comply with the APC, Articles 37 and 213.3 4 of the Federal Law on bankruptcy), the package of documents is not complete, there is no receipt. In addition, this happens if the citizen has not proven his insolvency, and when there is a dispute between the debtor and the creditors that needs to be resolved through the action, ”Lilia Shikh explained.
When an individual is declared bankrupt
After the submitted application and all the necessary documents confirming the existence of a debt that cannot be paid, the court makes an appropriate decision on the bankruptcy of an individual.
How much does litigation bankruptcy cost
– The cost of turnkey bankruptcy services for an individual varies from 80,000 to 170,000 rubles. All expenses for payment of services of a financial manager, state duty, expenses for filing declarations in a bankruptcy case, services of a lawyer are included, – said Lilia Shikh.
Simplified out-of-court bankruptcy of individuals
– On September 1, 2020, the law on free out-of-court bankruptcy of citizens came into force. This means that there is an opportunity to write off the debt through the MFC for free and without a trial, '' Ekaterina Kuznetsova, a lawyer, expert on bankruptcy of individuals and individual entrepreneurs, told RIA Novosti.
Simplified bankruptcy is available subject to the following conditions: – the total amount of the debt is not less than 50,000 and not more than 500,000 rubles; – on the date of filing an application against the debtor, enforcement proceedings have been completed in connection with the return of the court order to the claimant on the basis of paragraph 4 of part 1 of Article 46 of the Federal Law October 2, 2007 N 229-FZ “On enforcement proceedings” (regardless of the volume and composition of the claims of the claimant); – no other enforcement proceedings were initiated after the return of the order of execution to the claimant.
How to file bankruptcy for free through the MFC
– An application for recognizing a citizen as bankrupt in an extrajudicial procedure is submitted by him at his place of residence or place of stay to a multifunctional center for the provision of state and municipal services. After six months from the date of publication, the citizen is exempted from further execution of the claims of the creditors indicated by him in the application, – noted Ekaterina Kuznetsova.
List of documents for submission free of charge through the MFC: – application; – copy of passport; – list of creditors in the prescribed form.
Creditors or obligations that are not indicated in the list will not be affected by the extrajudicial bankruptcy procedure, that is, a person is not exempt from such debts. It is also important to correctly indicate in the application the correct information about taxes and fees, the exact amount of debts.
Consequences of bankruptcy of an individual
– Within 5 years, a citizen declared bankrupt is not entitled to assume obligations under credit agreements and (or) loan agreements without indicating the fact of his bankruptcy; has no right to file a petition for declaring him bankrupt; has no right to hold positions in the management bodies of an insurance organization, a non-state pension fund, a management company of an investment fund, a mutual investment fund and a non-state pension fund or a microfinance company, as well as otherwise participate in the management of such organizations, – explained Ekaterina Kuznetsova.
In addition, for 3 years a citizen is not entitled to hold positions in the management bodies of a legal entity, and for 10 years – positions in the management bodies of a credit institution, as well as in any other way to participate in the management of a credit institution.
Bankruptcy salary and pension
– During the bankruptcy procedure, a bankruptcy estate is formed (property, funds that can satisfy the claims of creditors in some part). Salaries and pensions are also included in the bankruptcy estate, but it is important to note that the debtor is left with money in the amount of the subsistence minimum for him and his family members, – said Ekaterina Kuznetsova.
Restrictions during and after bankruptcy proceedings
Before the bankruptcy procedure, you cannot make transactions that can be challenged by the financial manager during the bankruptcy procedure, for example, fictitious transactions.
Also, during the bankruptcy procedure, all rights in relation to property, the state of the bankruptcy estate are exercised only by the financial manager and cannot be exercised by a citizen personally. Transactions made by a citizen personally without the participation of a financial manager are void.
Pros and cons of litigation bankruptcy
– The main plus of judicial bankruptcy is the ability to write off debts if a person is in a difficult financial situation. Although there is an exception: the debts on alimony, on the payment of wages and severance pay, subsidiary liability, harm caused to life and health are not subject to cancellation, – said Ekaterina Kuznetsova.
Also, the pluses include: – the possibility of writing off debts “once every five years”, that is, every 5 years, if the debtor becomes financially insolvent, he has the right to go to court to declare him bankrupt; – the only housing that is not encumbered with a pledge will remain with the debtor and will not be sold at auction; – the duration of the procedure: on average, it takes from 4 to 6 months if there is no property and from 6 to 12 months if there is property.-The disadvantages of bankruptcy, according to a specialist, are: – the risk of losing property that is pledged (for example, mortgage). – lack of a rule of law and clear practice for the return of capital from the sale of property.
How to choose the right financial manager
– It is worth paying attention to the experience of the arbitration manager, his practice, reviews. On the official website of the Unified Federal Register of Bankruptcy Information, you can see the current financial managers, the number of their cases. In addition, when choosing a financial manager, you should consult with bankruptcy lawyers, as a rule, they cooperate with financial managers and can recommend a competent and experienced specialist, – explained Ekaterina Kuznetsova.