A SMALL FRACTION IS A BIG QUESTION

Razhdanin applied to the arbitration court with an application for exclusion from the bankruptcy estate of a share in the ownership of residential premises (case no. A35-5079/23).

The courts of two instances, refusing to satisfy the stated claim, proceeded from the fact that the debtor is registered and resides at a different address, the disputed property does not have enforcement immunity and does not belong to the property, which, by virtue of procedural legislation, cannot be levied. The debtor has not proved that the average market value of a share in the right of common shared ownership of residential premises does not exceed the established threshold, and the income from its sale will not significantly affect the satisfaction of the debtor's creditors' claims. 

The cassation sent the dispute for reconsideration, noting that the courts had not checked and established the circumstances essential to the case, namely, the value of the disputed property, the amount of expenses for organizing and conducting auctions, which currently does not allow us to conclude about the economic feasibility of selling a share in the ownership of residential premises. The legal approach, according to which the debtor's illiquid property can be excluded from the bankruptcy estate, the value of which is insignificant, and incurring the costs of organizing and conducting auctions will lead to a decrease in the bankruptcy estate, that is, the sale of property as a way to repay debts to creditors will not make real economic sense, is set out in judicial practice. 

The courts should consider the issue of the market value of the disputed share in the right of common equity ownership and assess the prospects for repayment of debts to creditors through its sale (taking into account the market value of the share and the costs of organizing and conducting auctions, interest payments on remuneration of the financial manager).

 

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