The Ninth Arbitration Court of Appeal upheld the decision of Moscow Arbitration Court in cases of claims of the bank "Trust" to companies' Willow River "and" Retail Chain "," Trust "connected with the former shareholders. Resolution handed down on August 26 and 23, respectively, according to the information on the Court's website.
Thus, the capital arbitrage has canceled the additional agreement to the four loan agreements "Trust" bank, which is currently in the rehabilitation of the band "The opening of the holding." The total amount of these contracts - $ 132.4 million and 720 million rubles, the latter of which was signed shortly before the financial recovery procedure, "Trust.". The Court emphasized that the ultimate beneficiaries (owners) of the respondent companies are former major bank shareholders - Ilya Yurov, Nikolai Fetisov and Sergey Belyaev. "They were not interested in challenging these additional agreements to the loan agreements, they actually meant that circumstances have concluded with themselves", - noted the arbitration.
"These solutions are important for ons, because the recovery of distressed assets - is one of the key areas of the project on improvement of "Trust": it reduces the costs that the State is to reorganize, "- commented the director of the arbitration decision legal directorate of the bank" Trust "Sergei Massarsky. According to him, these decisions mean that the "Trust" may require fulfillment of the initial conditions of the loan agreements and compensation, which the bank has suffered as a result of changing conditions.
Sum of claims to "Willow River" and "Retail Chain" may amount to several billion rubles, calculated in the credit institution. "We have also established an important precedent for the entire institution of financial rehabilitation. Sanatorium can challenge transactions that were concluded on the obviously unfavorable for the rehabilitated banks mustache ditions before the recovery process ", - he added.
As follows from the case in November-December 2010, the "Trust" issued "Willow River" and "Retail Chain" on two loans. "Willow River" to get a loans for $ 31 million at the rate of 5% per annum and 200 million rubles. at 13.5% per annum. "Retail Chain" - at $ 81.5 million and 520 million rubles. at the same rates.
December 17, 2013 to December 17, 2014 (the last agreement was signed five days before the start of rehabilitation "Trust" December 22, 2014) to the credit contracts additional agreements in terms of which dollar loans have been concluded were converted into rubles, and, as explains, "Trust", "for it has been established non-market rate of 7% and unfavorable repayment schedule, providing long-term credit vacation." Of the contracts were also excluded the right of the bank to demand changes unilaterally in case of violation by borrowers of their obligations and the right to demand early repayment of the loan amount.
As the arbitration, at the time of the signing of additional agreements on the "Trust" as the sole executive body of the bank operated its chairman Oleg Dikusar. Now he and the former financial director of "Trust" Eugene Romak accused of complicity in the withdrawal of the bank's assets under vihome lending and transfer liquid "Trust" in the controlled company and are in custody awaiting trial. According to the investigation estimated that by their actions the bank has received the damage of 14.6 billion rubles.
On the side of the "Trust"
May 16 metropolitan Arbitration Court recognized an additional agreement on the four contracts invalid. The Court explained that the bank's right to change the rate unilaterally and to demand early repayment of the loan - a "standard terms and conditions of the loan agreement." "The exclusion of these terms and conditions are deprived of control of the bank debt, and guarantee the return of money that upset the balance of interests", stated in the decision.
Agreement, in the opinion of the court, were non-market nature and the bank missed profit in the form of interest income. The total amount provided by borrowings amounted to 1.3 billion rubles., Which is four times greater than the amount of own funds "Trust" at the time of concluding agreements.
As shown by comparing the results of the Central Bank changes the key rate to the effective interest rate on credit Dogsframes, the effective interest rate that reflects the effective yield on the loan agreements, was significantly below the level of the key. The peak level of the effective date fell on the extension of credit agreements, according to the ruling of the Moscow Arbitration. According to the data of the plaintiff suffered damage from transactions exceeded 566.4 million, and the bank lost the opportunity to recover even part of the loans granted until 2019.
According Massarsky, taking into account the decisions of the Court of Appeal, "Trust" may require, in particular, the execution of the original terms of the loan agreements, including a refund within the time specified therein.
Experts consider this decision as a precedent that could be supported by other banks. "There is a risk that the practice might spread to the" non-market "transactions in the" market ", that is, if a borrower took out a loan and somehow it restructured, and then the new administration it contested on the grounds that the restructuring took place in the supposedly unfavorable conditions for the bank ", - explains partner Tertychny Agabalyan Ivan Tertychnyi. "Mogie banks will follow this path, but in the case of sanctions such banks have a problem to prove affiliation to the former shareholders of companies and to challenge the deal the new owners ", - says deputy chairman of the bank MIA Dmitry Zubkov.
Remediation of "Trust", included at the time in the top 30 credit Russian banks by assets, began in late 2014. As explained by the central bank, in the work of the credit institution signs the withdrawal of assets, for which the bank used the scheme lending borrowers were found "not leading real economic activity, as well as the financing of investment projects, not bringing income." The regulator in May 2015 estimated the "hole" in the balance "Trust" to 114 billion rubles, where about half of the amount accounted for by non-performing loans that were given to structures close to the former owners of the bank -. Who is wanted internationally Ilya Yurov, and Fetisov and Belyaev.
Currently, the sanatorium "Trust" is the "opening of the holding", but due to changes in conditionss rehabilitation Deposit Insurance Agency (DIA) holds a competition for the selection of a new resort. "The opening of the holding" in late 2014 was to reorganize the "Trust" 127 billion rubles. from the state.
Return of assets derived in the form of loans to these structures, is the main difficulty in readjustment "Trust". In the spring of 2015, "Trust" is suing the family of corporate borrowers, some of which are linked to the former shareholders Yurov, Belyaev and Fetisov.