On July 2, the Central Bank announced the completion of the reorganization of Otkrytie FC. It was the first bank taken by the regulator for recovery to the Banking Sector Consolidation Fund (FCBS). From August 2017, the Central Bank allocated 456.2 billion rubles for the recapitalization of FC Otkrytie, and until the end of December 2017, the bank had 710 billion rubles. liquidity from the regulator. Now the bank complies with all regulations and has become profitable.
On the same day, July 2, the Central Bank, in the name of Otkritie, filed a lawsuit against the former management of the bank with the Moscow Arbitration Court and presented it with lost profits from the money spent on reorganization. The amount of the claim - 290 billion rubles., The regulator said. This is a record - in December 2018, Promsvyazbank demanded 282.2 billion rubles. with the former owners of the bank of the Ananyev brothers and its top managers.
No money left
The Central Bank has not yet received anything from the former managers of FC Otkritie, which is why a claim for damages is filed to them, Deputy Chairman Vasily Pozdyshev handed over to Vedomosti through the press service. Founder and largest co-owner of the bank Vadim Belyaev, former president of FC Otkritie Ruben Aganbegyan, former CEO Evgeny Dankevich, board members Elena Budnik and Gennady Zhuzhlev, as well as the owner of 53% of the bank - Otkryt Holding. Belyayev and Aganbegyan are named by the Central Bank as persons who actually exercised control over the bank.
This is the first lawsuit in which the regulator demands from former managers to compensate not just the losses inflicted on the bank, but, in fact, the lost profits of the Central Bank due to reorganization. This right came to the regulator a year ago. The magnitude of the loss is determined based on the fact that the Central Bank could not issue money for rehabilitation free of charge or at a preferential rate, but place them in a bank at a key rate in effect at the time the funds were transferred to rehabilitation in the FSCS. At the same time, the damage is estimated both when the funds are injected into the bank’s capital and when funds are issued on a return basis at a rate lower than the market rate.
The question of bringing such claims is being considered in relation to controlling persons in all banks undergoing rehabilitation, says Pozdyshev. He points out that Promsvyazbank’s lawsuit against controlling parties, despite a slightly different legal structure, also includes costs for financial recovery. They amounted to 88 billion rubles.
Control at Otkritie FC at the time of the decision to reorganize it at the end of August 2017 belonged to Otkrytie Holding. Its largest beneficiaries are Belyaev (17%), as well as the co-owners of Lukoil Vagit Alekperov and Leonid Fedun (11.9%), VTB (9.9%), Aganbegyan (7.1%), etc.
Bank shareholders themselves appealed to the Central Bank for support, a bank spokesman said in August 2017. But already a few months after the bank was reorganized, the Central Bank ceased interaction with Belyaev, and in March last year Belyaev and Otkritie FC exchanged claims. Belyaev demanded the return of 21.3 million rubles. savings: the bank blocked the money on its deposit after the Central Bank took “Otkrytie FC” for reorganization. Part of the funds from a personal account - 5.8 million rubles. - were written off to repay Belyaev’s debt on a credit line, and the remaining 15.5 million rubles. the bank refused to give out to the businessman. FC Otkrytie filed a counterclaim to the businessman for 5.8 million rubles. However, in November, the parties withdrew the lawsuits and agreed that the money from the deposit minus the debt would be used to repurchase the Otkrytie Holding bonds.
Zhuzhlev, Budnik and Aganbegyan left their posts after the beginning of rehabilitation. Dankevich left the bank in September, and in February of this year, the Investigative Committee declared him on the wanted list, accusing 34 billion rubles of embezzlement. According to investigators, Dankevich entered into an agreement with borrowers from FC Otkritie and ordered to buy their bonds at a cost that is 2 times higher than the real one.
On all fronts
When asked why the Central Bank seeks compensation for damages, rather than attracting the co-owners and managers of FC Otkritie to secondary liability, Pozdyshev responded that the claims of the Central Bank for the recovery of damages are analogous to subsidiary liability. In the case of rehabilitation, damages are recovered, and in bankruptcy we are talking about subsidiary liability, he explained. But civil claims of the Central Bank do not cancel the criminal prosecution, if there is a reason for this, adds Pozdyshev. The provisional administrations and the boards of the rehabilitated banks filed a number of applications with the law enforcement agencies — criminal proceedings were instituted in some of them, he stated.
Recovery of damages in any case remains a matter of proof in court, the partner of the FMG Group Nikolay Kolenchuk is sure. However, the decision on reorganization and on the amount of money injections into capital is taken by the Central Bank itself unilaterally: in fact, the Central Bank proposes to recover additional losses from the former owners of banks arising from the actions of the Central Bank itself, Kolenchuk says. Filing a claim for loss of profits as an option for damages is the fastest and most effective way for the Central Bank to protect its interests as opposed to subsidiary or criminal liability, says Forward Legal lawyer Danil Bukharin.
The court can formally attract Otkrytie Holding shareholders in a joint manner, establishing a different degree of guilt for each of them and, accordingly, a different amount of responsibility, Bukharin says.
The risks for co-owners of Otkritie Holding, which is the defendant in the lawsuit, to be involved in the proceedings are high, Kolenchuk is sure. But the Central Bank will have in addition to the collected material to prove the relationship of each new respondent with the loss that was caused.
Aganbegyan declined to comment, but failed to contact Belyaev and Zhuzhlev, Dankevich, Budnik, as well as the representatives of Otkritie Holding, VTB, Fedun and Alekperov did not respond to Vedomosti requests.