The Association of Russian Banks (ADB) criticized the court decisions in favor of borrowers in disputes with the non-core assets bank “Trust” due to the revision of the terms of loan agreements amid the pandemic. The statement published on the ADB website cites two decisions of the court of first instance: the first on the claim of the Moscow Region shopping center of the Regions group (LLC TRK Krasnogorsk), the second on the claim of the united cinema network Cinema Park and Formula Kino (JSC Cinema the park”). In both cases, the courts satisfied the borrowers’ claims in full, that is, they restructured the debt.
The ADB stressed that a year ago, during the outbreak of coronavirus, the government identified a list of industries most affected by the pandemic that were to receive support. At the same time, court decisions provide legal protection “to those business entities to whom the legislator did not intend to provide it.” As a result, the courts force the bank to change the loan agreements on the terms of the borrower, which makes them “onerous deals” for the credit institution, the association believes.
“The consequence of such an imbalance will be the need for banks to provide for such risks in the cost of borrowed funds, which will inevitably lead to a vicious cycle: an increase in interest rates – unilateral revision of the terms of loan agreements – an increase in interest rates,” the ADB wrote, noting that they see “dangerous the shortsightedness of judicial decisions that diminish the principle of legality, and the consequence is the destruction of the public consensus on the issue of socially responsible behavior “during the period of restrictions due to the pandemic.
The general director of the cinema network, Alexei Vasyasin, declined to comment. Vedomosti sent inquiries to representatives of businessman Alexander Mamut (owns a cinema network), the Regions group and the Bank of Russia.
The representative of “Trust” said that these court decisions are dangerous for the entire lending market, since “they violate the balance of interests of the creditor’s bank and insolvent debtors and can cause a domino effect on the lending market.”
The position of lawyers
Cinemas were included in the list of industries most affected by the pandemic – they were there already in May 2020. Shopping centers were really not included in the list of affected industries, but only due to the lack of a separate code for such activities in the all-Russian classifier of economic activities, the judge noted in your decision. This industry, along with others, was among the most affected, as shopping centers were closed for several months, the court’s decision says.
ADB’s statement is a gross interference in the activities of the courts, said Mikhail Barshchevsky, plenipotentiary representative of the Russian government in the highest courts.
“The very statement of the Association of Russian Banks caused me great surprise, because this statement, from my point of view, this is my value judgment, is a direct direct and gross interference in the activities of the judicial branch of government. Not to mention the fact that this statement contains a lot of demagogic passages, ”he told Vedomosti. He stressed that we are talking about decisions that have not entered into legal force, therefore, such a statement can be considered as “direct pressure on the appellate instance.” “Nobody prevents the Association of Russian Banks from expressing its position by sending a letter to the appellate instance and offering its services as an expert organization. This is just direct pressure, ”he added. “This is my personal opinion,” Barshchevsky summed up.
The court’s decision on the Krasnogorsk TRK is balanced and well-reasoned, says Oles Gruzdev, a lawyer for Forward Legal. According to him, “the court justly did not confine itself to a formal description of the list of affected industries, but assessed not only the economic situation of the plaintiff, but also assessed the position of the bank.” The court also took into account the potential interests of the plaintiff’s other creditors, Gruzdev said.
“It is likely that in the situation with Cinema Park, the court came to similar conclusions. If he comes to the conclusion that the situation had a significant impact on the position of the borrower and the parties with a high degree of probability could not foresee this situation when they entered into the agreement, then the court must change the conditions, ”said Gruzdev. He does not consider the ADB statement itself to be pressure on the court, since “the text of the association does not contain any attacks either on the court or on the judicial system as a whole.”
The approach of the courts in the cases of Trust to change the terms of contracts in the context of the spread of coronavirus infection can be perceived as a positive trend, Vera Richterman, partner of the litigation practice of Egorov Puginsky Afanasiev and Partners, told Vedomosti. “In this case, the courts, following the explanations of the Supreme Court of the Russian Federation, take into account the interests of the business affected by the pandemic and protect companies from inevitable bankruptcy,” she said, stressing that “the aggressive collection of PJSC Bank Trust debts goes against the general trend of protecting and support for business, established both in the instructions of the government of the Russian Federation and in the messages of the President of the Russian Federation. “
Court decisions
At the end of May 2021, the Moscow Arbitration Court satisfied in full the claim of LLC TRK-Krasnogorsk (a structure of the Regions group owned by the sons of State Duma deputy Zelimkhan Mutsoev Amiran and Alikhan, his brother Amirkhan Mori and family friend Alexander Karpov) to “ Trust “on the revision of the loan agreement due to coronavirus restrictions. Now the debt of “TRK-Krasnogorsk” (owns the SEC “June”) is 6.9 billion rubles. including interest, delay and interest, a representative of Trust told Vedomosti. The bank on June 25 filed an appeal against the “precedent court decision.” Due to coronavirus restrictions, TRK-Krasnogorsk asked Trust to postpone payments for two years while maintaining the rate and repay the loan not in 2023, but in 2025.
“Trust” was not satisfied with such conditions, according to the case file: in November, the bank demanded from the company the full repayment of the entire loan in the amount of 5.3 billion rubles. The requirement of “Trust” to repay the entire loan ahead of schedule without looking for other solutions is an abuse of the right, the judge considered, since the bank was aware of the difficult situation due to the pandemic. Restrictions in connection with the spread of coronavirus are a significant change in circumstances and are grounds for amending the loan agreement on the basis of Art. 451 of the Civil Code of the Russian Federation. A change in circumstances is recognized as significant when they have changed so much that if the parties could reasonably foresee this, the contract would not have been concluded by them at all or would have been concluded on significantly different conditions, as stated in the Civil Code of the Russian Federation.
“Trust” in a dispute with “TRK-Krasnogorsk” referred to the fact that due to amendments to the agreement, the state (the sole shareholder of the bank is the Central Bank) will incur losses. This argument is the court’s account insolvent, since the debtor does not refuse to pay the loan and asks to reduce its amount, but offers to repay the debt in full, including interest, but with a delay for the period of the restrictions. The bank stated that it continues to service the deposits of citizens, to which the court noted that in the composition of obligations, deposits of individuals amounted to only 171 million rubles. of 1.7 trillion rubles. 99% of the bank’s liabilities are the money of the Central Bank.
In the dispute between “Trust” and the united cinema network “Formula Kino” and “Cinema Park” on a credit line for 2.7 billion rubles. The Moscow Arbitration Court also fully satisfied the claims of the plaintiff. In a lawsuit filed by Cinema Park JSC in January 2021, the company insisted on increasing the loan term from 2023 to 2027, exemption from interest payments for the period of the complete closure of cinemas, and reducing the interest rate from 7.5% to 1%. with interest paid at the end of the loan term, Vedomosti wrote with reference to sources (the reasoning part of the decision has not yet been published). “Trust” will appeal against the decision of the court.
The cinema network noted that during the term of the loan agreement, Cinema Park transferred 916 million rubles to Trust. percent, but since March 2020 the company has stopped paying due to the epidemiological situation in the country. The activities of cinemas were included in the list of sectors of the economy most affected by the pandemic. In particular, Cinema Park cinemas were closed in Moscow from March 26 to August 1, 2020, in St. Petersburg – from March 20 to September 12, 2020, in Chelyabinsk – from March 26 to September 1, 2020.
Kinoseti insisted that during the period of restrictions the company continued to bear the costs of wages, maintenance of premises, etc., which led to an imbalance in income and expenses and the need to create conditions for the restoration of the company’s economic situation, a source familiar with the content of the claim told Vedomosti. The Trust called the conditions for the restructuring of loans proposed by the plaintiffs as unacceptable and pointed out that “the financial problems of the cinema chains did not begin in March 2020.”
.