Foreclosure on the funds of the management organization and the homeowners association. The Supreme Court decided when it is possible to foreclose on the property rights of the debtor. Foreclosure on a special account of the management company

• 1. For the debts of a professional participant in the securities market, collection cannot be made on cash of its clients located in a separate bank account (accounts) opened by a professional participant in the securities market in a credit organization (hereinafter referred to as the special account of a professional participant in the securities market) in accordance with Federal Law No. 39-FZ of April 22, 1996 “On the Securities Market securities" (hereinafter referred to as the Federal Law "On the Securities Market"),
• 2. For the debts of a professional participant in the securities market, collection cannot be made securities its clients located on personal accounts in the register maintenance system and securities accounts in depositories opened by a professional participant in the securities market in accordance with the Federal Law “On the Securities Market” (hereinafter referred to as personal accounts and securities accounts).
• 3. For debts management company of a mutual investment fund, foreclosure cannot be made on the funds and (or) securities of a person who submitted an application for the acquisition of investment units, stored in a separate bank account and (or) securities account of the management company of the mutual investment fund before an entry is made in the register of owners of investment units on the acquisition of investment shares.

A comment_

In Art. 73 establishes a rule according to which in enforcement proceedings it is necessary to distinguish between the property of a professional participant in the securities market and his clients. At the same time, a ban has been established on foreclosure on funds and securities of clients of a professional participant in the securities market.

The characteristics of professional participants in the securities market are defined in Art. 2-10.2 Federal Law No. 39. An analysis of these norms shows that professional participants in the securities market have the funds of their clients. Because of this, Federal Law No. 229 stipulates the means allowing the bailiff to distinguish between the property of professional participants in the securities market and their clients. The first such facility is named in Part 1 - a special account of a professional participant in the securities market, which accumulates the funds of his clients. Please note that the norm indicates special accounts of a professional participant in the securities market, which are opened in accordance with Federal Law No. 39. An analysis of its norms shows two such accounts. The first is a special brokerage account (clause 3, article 3). The second is a special depository account. It contains funds received in the event of provision of services to the depositor related to the receipt of income on securities and other payments due to the owners of securities. The depositary is obliged to keep records of the funds of each depositor located in a special depositary account (accounts) and report to the front. The funds held in these accounts for the debts of a professional participant in the securities market cannot be recovered.

A similar prohibition is established in relation to securities of clients of a professional participant in the securities market, which are on personal accounts in the register maintenance system and securities accounts in depositories opened by a professional participant in the securities market in accordance with Federal Law No. 39 (Part 2, Article 73).

Part 3 of the commented article regulates the specifics of foreclosure on the debts of the management company of a mutual investment fund. According to the Federal Law of November 29, 2001 No. 156-FZ “On Investment Funds”, a mutual investment fund is a separate property complex consisting of property transferred into trust management of a management company by the founder (founders) of trust management with the condition of combining this property with the property of other founders of trust management , and from the property received in the process of such management, the share in the ownership of which is certified by a security issued by the management company. A mutual fund is not a legal entity.

The terms of the trust management agreement for a mutual investment fund are determined by the management company in standard forms and can be accepted by the trust management founder only by acceding to the specified agreement as a whole. Joining a mutual investment fund trust management agreement is carried out by purchasing investment shares of the mutual investment fund issued by the management company that carries out the trust management of this mutual investment fund.

Only cash funds can be transferred to trust management of open-ended and interval mutual investment funds. Cash, as well as other property provided for in the investment declaration contained in the rules of trust management of this mutual investment fund, may be transferred to the trust management of a closed-end mutual investment fund, if the possibility of transferring such property is established by regulatory legal acts of the federal executive body for the securities market.

Funds transferred in payment for investment units of one mutual investment fund must be received in a separate bank account opened by the management company of this fund on the basis of an agreement concluded without indicating that the management company is acting as a trustee (transit account). The funds held in the transit account cannot be collected for debts of the management company. Property transferred as payment for investment shares, including those located in a transit account (transit securities account), cannot be foreclosed on for the debts of the management company or for the debts of a specialized depository.

The property that makes up a mutual investment fund is separated from the property of the management company of this fund, the property of the owners of investment shares, the property that makes up other mutual investment funds that are in trust management of this management company, as well as other property that is in trust management or for other reasons with the specified management company. The property that makes up the mutual investment fund is accounted for by the management company on a separate balance sheet, and independent accounting is maintained for it.

For settlements on operations related to the trust management of a mutual investment fund, a separate bank account (accounts) is opened, and to record rights to the securities that make up the mutual investment fund, a separate depository account (accounts) is opened.

Foreclosure of the debts of owners of investment units, including in the event of their insolvency (bankruptcy), on the property constituting a mutual investment fund is not permitted. For the debts of investment unit owners, foreclosure is applied to the investment units they own.

Debts under obligations arising in connection with the trust management of property constituting a mutual investment fund are repaid at the expense of this property. In case of insufficiency of the property constituting a mutual investment fund, recovery can only be applied to the management company’s own property.

ARBITRATION COURT OF THE CHELYABINSK REGION

454000, Chelyabinsk, Vorovskogo st., 2

In the name of the Russian Federation

SOLUTION

Chelyabinsk Case No. A76-9716/2014

Judge of the Arbitration Court of the Chelyabinsk Region L.A. Elkina,

When keeping the minutes of the court session by secretary V.A. Bashkirov.

Having considered it in open court on the premises of the Arbitration Court of the Chelyabinsk Region at the address: Chelyabinsk, st. Vorovskogo, 2, office. 708

Case on application

LLC Management Company "Kommunalshchik", Chebarkul

To the bailiff - executor of the Chebarkul GOSP UFSSP in the Chelyabinsk region Anna Aleksandrovna Vedyakova, Chebarkul

Third party:

Federal Bailiff Service of the Russian Federation, Chelyabinsk,

LLC Management Company "Kvartal", Chebarkul,

LLC "Cash Settlement Center", Chebarkul,

OJSC Gazprom Gas Distribution Chelyabinsk, Chelyabinsk

On declaring illegal the decision of the bailiff to foreclose on funds and the obligation to return written-off funds,

With the participation of the parties:

Applicant: Dzhamalutdinova N.D. - attorney-in-fact

Bailiff: Vedyakova A.A.

Installation:

The limited liability company "Management Company "Kommunalshchik of the City of Chebarkul" (hereinafter referred to as the Management Company "Kommunalshchik", society) appealed to the Arbitration Court of the Chelyabinsk Region with a statement to the bailiff of the Chebarkul GOSP UFSSP for the Chelyabinsk Region Vedyakova A.A. (hereinafter referred to as the bailiff) on declaring actions regarding foreclosure on funds in the debtor’s account illegal. In addition, the applicant asked to oblige the bailiff to return funds written off from special bank account No. 40821810507710011975 in the amount of 130,047 rubles. 44 kopecks

The applicant’s requirements were clarified in the application dated June 26, 2014.

The case was considered in the presence of the applicant's representative and the bailiff.

Third parties notified of the time and place of the court hearing did not appear and did not provide feedback on the case. The court considers third parties notified in the context of Art. , since in the case materials there are notices indicating that the parties were notified of the commencement of the process. By virtue of Art. after receiving notification of the commencement of the process, persons participating in the case must independently receive information about the progress of the case by any accessible ways, including by familiarizing yourself with judicial acts on the website of the Arbitration Court of the Chelyabinsk Region, where judicial acts are posted on the day of their adoption. Failure to take measures to obtain information about the progress of the case when negative consequences occur places a burden on the person who did not take proper measures to obtain such information.

In support of its application, the company pointed out the inadmissibility of foreclosure on funds held in a special account, since these funds do not belong to the debtor, but are consumer funds utilities– residents apartment buildings.

The bailiff did not recognize the stated claims, indicating that he did not have information about special purpose accounts, measures to foreclose on funds in the disputed account were canceled (resolution dated June 11, 2014) due to the repayment of the debt in full, the money cannot be returned, since it was distributed among the collectors of the enforcement proceedings.

As follows from the case materials, Management Company "Kommunalshchik", according to the presented agreements for the management of apartment buildings in the city of Chebarkul, is a management company whose responsibilities include, among other things, organizing the provision of utility services and carrying out activities aimed at achieving the goals of managing apartment buildings.

The company's responsibilities include calculating payments for utility services (heating, hot water supply, cold water supply, gas supply, electricity supply, sewerage), issuing payment documents and collecting payments established in the agreement.

In relation to the Criminal Code "Kommunalshchik" the bailiff initiated three enforcement proceedings (No. 6038/14/70/74, 12366/13/70/74, 25211/13/70/74), the claimants for which are, respectively, LLC "UK" Kvartal", Chelyabinsk Regional Gas Distribution Company (renamed OJSC Gazprom Gas Distribution Chelyabinsk), LLC Cash Settlement Center (total amount of recovery 428,563.69 rubles).

The bailiff established that the debtor has 4 current accounts, including accounts No. 40821810407710001975, 40821810507710001975, opened with JSCB Chelindbank. The accounts were opened accordingly on the basis of agreements No. 120 of September 30, 2011 and No. 127 of October 10, 211. According to clause 1.1 of the agreements, these accounts are special bank accounts opened for the client to carry out settlements with payment agents when they carry out activities of accepting payments from individuals carried out on the basis of agreements on acceptance of payments.

On April 11, 2014, the bailiff issued a decision to foreclose on the funds located in the debtor’s specified accounts. The resolution was sent to the parties to the enforcement proceedings, as well as to the bank.

LLC "UK "Kommunalshchik", considering the bailiff's decision to be invalid, violating its rights as a management company and the interests of third parties (the population and resource supply organizations), appealed to the Arbitration Court of the Chelyabinsk Region with a statement declaring it illegal. In connection with the cancellation of measures to foreclose on funds (that is, in fact, the cancellation of the controversial decision), the applicant clarified the requirement, pointing out the illegality of the actions of the bailiff to foreclose on funds held in special accounts.

In support of his claim, the applicant points out that foreclosure on funds held in special accounts of the debtor in the interests of one (part) of the resource supplying organization(s) affects the interests of the population, both the consumer and other resource supplying organizations, and the interests of the applicant himself, responsible for fulfilling obligations to resource supply organizations.

Clause 7 of Part 1 of Article of the Federal Law of 02.10.2007 N 229-FZ “On Enforcement Proceedings” establishes that in the process of fulfilling the requirements of executive documents, the bailiff has the right to carry out enforcement actions, including in order to ensure the execution of the executive document, seize the property, which includes cash and securities.

According to Part 3 of Article 69 of the Law on Enforcement Proceedings, foreclosure on the debtor’s property under enforcement documents is applied primarily to his funds in rubles and foreign currency and other valuables, including those in accounts, deposits or deposits in banks and other credit organizations, with the exception of the debtor’s funds held in trading and (or) clearing accounts. The debtor's funds in foreign currency are levied in the absence or insufficiency of funds in rubles.

In accordance with paragraph 1 of article of the Civil Code Russian Federation A bank account is an account opened by a bank to its clients for the latter to participate in non-cash money circulation and accumulate funds on the account for their intended use. Under a bank account agreement, the bank undertakes to accept and credit funds received to the account opened for the client (account owner), carry out the client’s orders to transfer and withdraw appropriate amounts from the account and carry out other operations on the account.

The norms of Chapter 45 of the Civil Code of the Russian Federation regulate legal relations regarding a bank account.

The article of the Civil Code of the Russian Federation stipulates that by a court decision and in cases established by law, it is allowed to write off funds in the account without the client’s order.

Article 81 of the Law on Enforcement Proceedings regulates the seizure of funds held in a bank or other credit organization.

Foreclosure of funds is regulated by Article 70 of the same law.

From Part 2 of Article 70 of the Law on Enforcement Proceedings it follows that the transfer of funds from the debtor’s accounts is carried out on the basis of a writ of execution or a resolution of a bailiff without the submission of settlement documents to a bank or other credit institution by the recoverer or the bailiff.

In the context of the above rules, foreclosure on funds located in the debtor's current account is possible only if the funds in the current account (part of them) belong to the debtor, indicating this in the relevant resolution, subject to the possibility of determining the specific amount of funds belonging to the debtor , located on the account.

Federal Law dated 06/03/2009 N 103-FZ "On the activities of accepting payments from individuals carried out by payment agents" regulates the relations arising when the payment agent carries out the activity of accepting funds from the payer aimed at fulfilling the monetary obligations of the individual to the supplier for payment goods (works, services), as well as those sent to government bodies, bodies local government and institutions under their jurisdiction, within the framework of their performance of functions established by the legislation of the Russian Federation.

In accordance with Part 1 of Article 3 of the said Law, the activity of accepting payments from individuals is recognized as the acceptance by a payment agent from the payer of funds aimed at fulfilling monetary obligations to the supplier to pay for goods (works, services), including payment for residential premises and utilities services in accordance with the Housing Code of the Russian Federation, as well as subsequent settlements with the supplier by the paying agent.

Until September 29, 2011, the obligation of the paying agent to use special accounts when making payments to accept payments was not enshrined in Federal Law No. 103-FZ of June 3, 2009 “On the activities of accepting payments from individuals carried out by payment agents” (hereinafter referred to as Law No. 103 -FZ) for the supplier.

The need to open special accounts arose in connection with the adoption of Federal Law dated June 27, 2011 N 162-FZ “On Amendments to Certain legislative acts Russian Federation in connection with the adoption of the Federal Law "On National payment system", which amended Law No. 103-FZ (came into force on September 29, 2011).

According to Part 18 of Article 4 of the Law on Activities for Accepting Payments, the supplier is obliged to use a special bank account when making settlements with the payment agent when accepting payments. According to this account, by virtue of paragraph 19 of Art. 4 of the Law, operations can be carried out to credit funds written off from a special bank account of the paying agent, and write off funds to bank accounts.

As follows from agreements No. 120, 127, the parties agreed that special accounts will be used in accordance with Federal Law No. 103-FZ of June 3, 2009 for crediting funds debited from special bank accounts of Paying Agents, as well as for debiting funds to bank accounts . At the same time, during the use of accounts by the client, the legal regime and restrictions established in relation to this type of account by the current legislation of the Russian Federation and regulatory documents of the Central Bank of Russia will be observed.

Funds received from owners and users of residential premises for services for the maintenance and repair of residential premises minus the Agent's remuneration (Cash Settlement Center LLC) in accordance with the agency agreement dated February 10, 2012, are also credited to a special account of the company for further transfer of funds direct providers of housing services.

That is, money from the owners of residential premises or their users is credited to special accounts for utilities and other services related to the maintenance of the property of the owners or users of housing, which are provided to them by third parties. These transfers also include funds from Management Company “Kommunalshchik” in the form of remuneration for organizing the provision of disputed services and fulfillment of other obligations under management agreements apartment building, but these amounts cannot be determined before the end of settlements with resource supplying organizations (before the end of settlement periods).

Under such circumstances, funds received in a special bank account cannot be recognized as the debtor’s funds, since they include payments from citizens for utility services provided by resource supply organizations and have a special purpose.

The bailiff did not provide evidence confirming the presence of funds in a certain amount belonging to the debtor in the specified account, or the possibility of determining it.

Thus, foreclosure on funds held in a special account of the debtor in the interests of one (part) of the resource supplying organization(s) affects the interests of the population as a consumer and other resource supplying organizations. Foreclosing on disputed funds can have socially significant negative consequences, such as non-transfer of funds collected from the population to other resource supply organizations, withdrawal of funds necessary to eliminate accidents, carry out major repairs, etc.

Based on the above, it is unlawful for a bailiff to levy recovery on funds held in special accounts of the debtor that have a designated purpose and are payments by individuals for utility services and housing management services provided by resource-supplying organizations. Foreclosing on disputed funds does not comply with the requirements of the legislation on enforcement proceedings and violates the rights and legitimate interests of LLC "UK Kommnalshchik" and third (individuals and legal entities) persons.

The lack of information from the bailiff about the purpose of these accounts (could have occurred in a controversial legal relationship, since in the certificate tax authority the list of the debtor’s accounts does not indicate the purpose of the accounts) cannot serve as a basis for recognizing as legal the foreclosure of disputed (special) accounts. In this connection, actions to foreclose on special accounts without confirming the ownership of a specific part of the funds accumulated in these accounts by the debtor in enforcement proceedings are subject to recognition as illegal.

At the same time, the requirement for the return of funds written off from a special bank account in the amount of 130,047 rubles. 44 kopecks cannot be satisfied. The specified funds, in accordance with the resolution dated 04/23/2014 and registers of transferred amounts dated 04/24/2014 Nos. 5511, 5510, were distributed in favor and transferred to the claimant LLC Cash Settlement Center, Chebarkul. The receipt of funds by the claimant took place within the framework of enforcement proceedings initiated on the basis of a writ of execution by the Arbitration Court of the Chelyabinsk Region in case No. A76-2498/2013. That is, the receipt of funds is legal, and therefore is not subject to return (claims) from the creditor. The withholding of the disputed amount also took place in connection with the execution of the writ of execution. Due to the absence of the disputed money in the GOSP deposit account, the bailiff cannot fulfill the applicant’s demand. In this circumstance, the applicant has the right to choose another method of protection provided for in Art. , including recovery of loss or damage caused by the actions of the bailiff, proving that the disputed amount exceeds the amount of his own funds located in the disputed account in the disputed period.

Guided by the articles, Section III. Proceedings in the arbitration court of first instance in cases arising from administrative and other public legal relations > Chapter 24. Consideration of cases challenging non-normative legal acts, decisions and actions (inaction) government agencies, local government bodies, other bodies, organizations vested by federal law with certain state or other public powers, officials > Article 201. Arbitration court decision in a case challenging non-normative legal acts, decisions and actions (inaction) of bodies exercising public powers, officials persons" target="_blank">201, part 2 of Art. Arbitration Procedural Code of the Russian Federation, Federal Arbitration Court

The applicant's demands are partially satisfied.

Recognize the actions of the bailiff A.A. Vedyakova as illegal. in terms of foreclosure on the funds of LLC Management Company Kommunalshchik, Chebarkul, located in special bank accounts No. 4022180407710001975, 4022180507710001975, opened with JSCB Chelindbank OJSC.

The rest of the demands are denied.

The decision can be appealed within a month from the date of its adoption to the Eighteenth Arbitration Court of Appeal through the Arbitration Court of the Chelyabinsk Region.

Judge L.A. Elkina

Court:

AS of the Chelyabinsk region

Plaintiffs:

MUP "UK Kommunalshchik"
LLC "UK Kommunalshchik"

Defendants:

SPI Chebarkul GOSP Vedyakova A. A. Federal Bailiff Service Administration for the Chelyabinsk region
SPI Chebarkul GOSP UFSSP for the Chelyabinsk region Vedyakova A. A.

Judicial practice on:

Abuse of right

Judicial practice on the application of Art. 10 Civil Code of the Russian Federation

Often, the funds actually collected from management organizations and homeowners' associations are not so easy to obtain, since it can take a long time to hide money from creditors using agents.

The payment system for housing and communal services actively uses the model of information and settlement centers (ISC), unified settlement centers (SPC), and cash settlement centers (RCC). The essence of this system is that payments for housing and communal services are calculated by third-party organizations that are not related to management organizations (MA) and HOAs, but on the basis of the information provided by them, in connection with which the question is: how to recover money from management companies, becomes significantly more complicated.

As a rule, the algorithm for the operation of the IRC and MA is based on agency agreement. In accordance with paragraph 1 of Art. 1005 of the Civil Code of the Russian Federation, under an agency agreement, one party (agent) undertakes, for a fee, to perform legal and other actions on behalf of the other party (principal) on its own behalf, but at the expense of the principal or on behalf and at the expense of the principal. The principal is obliged to pay the agent a fee. Its amount and payment procedure are established in the agency agreement.

The agent accrues and collects funds. He then transfers them either to the MA or to the providers of housing and communal services. Payments for supplied utility resources are also split according to this scheme: incoming funds, bypassing the settlement accounts of the management company, go directly to resource-supplying organizations. But not everyone uses such a scheme. Many HOAs and management organizations prefer to maintain a staff of employees whose responsibilities include calculating and issuing receipts for payment of housing and communal services.

The system of settlement centers provides another advantage for HOAs and management organizations - the ability to “hide” money from creditors on more or less legal grounds. In an agency agreement, the principal can issue instructions that are binding on the agent. Such instructions make it possible to provide the possibility of transferring funds to the accounts of other companies directly. In this case, we are talking not only and not so much about payments for utilities, but about funds received under the heading “maintenance and repairs”.

The withdrawal scheme is quite simple:

• a legal entity or individual entrepreneur is created, a contractor who provides the HOA or management organization with the necessary services and performs work on the maintenance and current repairs common property in an apartment building;
• on the basis of a letter of instruction, all funds received from the population for housing services, are transferred from the agent’s account to the contractor’s account, bypassing the current account of the management organization and, accordingly, the imposition of a penalty on them by the creditor.

It is worth mentioning right away that with great desire, economic opportunities and political will, in this scheme you can find elements of various crimes, liability for which is provided for by the Criminal Code of the Russian Federation. But this is not always easy to do. This is confirmed by its use by many management organizations and homeowners associations. It is quite difficult to block settlements of management organizations and homeowners associations at the RPI level. And this could have far-reaching consequences for creditors.

Example

LLC "Unified Settlement Center-Dubna" appealed to the Arbitration Court of the Moscow Region to the Federal Bailiff Service to collect debt from the management company in the amount of 40.833 million rubles.

Involved in participating in the case as third parties who do not make independent claims regarding the subject of the dispute are: legal entities who claimed or could claim the specified amount of money after its collection by the bailiff service: Russian-Finnish company Ecosystem LLC, PTO GH OJSC, Energia-Tensor OJSC, Ecotech LLC, Zhilishchno- Municipal Administration No. 2”, LLC “Housing and Communal Administration - Dubna”.

It is worth mentioning right away that LLC “ERC-Dubna” was created during the “housing and communal wars” in Dubna and is a structure affiliated with the owner of three large management organizations of the city. The arrest of cash flows at the RPI level was precisely the result of political will - a reaction to the fact that money from the population to pay for utilities stopped flowing to resource supply companies.

Even earlier, ERC-Dubna LLC applied to the Arbitration Court of the Moscow Region with a statement to the bailiff of the Dubna GOSP UFSSP of Russia for the Moscow Region to declare illegal and cancel the decisions to foreclose on the debtor’s funds held in a bank or other credit organization. Based on this resolution, funds were written off for a total amount of more than 40 million rubles.

During enforcement proceedings, bailiffs identified agency agreements concluded by debtors LLC Housing and Communal Management No. 2, LLC Housing and Communal Management - Dubna and LLC ERC-Dubna. In accordance with these agreements, the agent of ERC-Dubna LLC acts as a representative of the principal. The agent performs on behalf of the principals LLC "ZhKU No. 2" and LLC "ZhKU - Dubna" or on its own behalf, but always at the expense of the principal, actual and legal actions in order to carry out the functions and tasks that form the subject of agreements on the organization of accrual and payment by citizens for housing utilities, namely fees:

• for the maintenance and repair of common property for tenants and owners of residential premises in apartment buildings, which are under the maintenance and management of the principal;
• major renovation common property of the same houses for owners of residential premises;
• utilities - heating, cold and hot water supply, sanitation, as well as other payments in accordance with the internal documents of the principal.

By the contested decisions, the bailiffs seized the bank accounts of the agent of ERC-Dubna LLC and wrote off funds from the accounts, i.e., they foreclosed on the debtor’s property held by a third party in the absence of a judicial act. By doing this, the bailiffs violated Part 1 of Art. 77 of the Federal Law of October 2, 2007 No. 229-FZ “On Enforcement Proceedings” (hereinafter referred to as the Law on Enforcement Proceedings).

The bailiff referred to the fact that Part 1 of Art. 77 of the Law on Enforcement Proceedings does not apply in the event of foreclosure on funds held in accounts, deposits or deposits in banks and other credit institutions. The court did not accept this argument. Reason: this exception applies to funds held in accounts opened with banks and other credit institutions, i.e., with third parties, by the debtor himself. In the case under consideration, the accounts were opened not by the debtors of LLC ZhKU No. 2 and LLC ZHKU - Dubna, but by LLC ERC-Dubna - a third party within the meaning of Art. 77 of the Law on Enforcement Proceedings.

Guided by these considerations, the court declared the decisions of the bailiffs to be completely illegal (see the decision of the Arbitration Court of the Moscow District dated July 24, 2015 in case No. A41-74942/2014).

The decision made became the basis for presenting statement of claim in the amount of 40.833 million rubles. Considering the case, the court noted that when making decisions, the bailiffs did not take into account that foreclosure on the debtor’s property held by third parties is carried out only on the basis of a judicial act. Judicial procedure guarantees protection not only of the parties, but also of persons who have the debtor’s property. The bailiff did not follow the specified procedure. As a result, the interests of third parties were violated:

• owners of premises in apartment buildings, whose funds are accumulated in the account of ERC-Dubna LLC for further transfer to resource supplying organizations for utilities and other services;
• other persons and other management organizations also crediting funds to this account.

Therefore, the impugned resolutions are illegal.

The court concluded that the defendant must compensate the plaintiff for losses incurred in the stated amount. This will allow the plaintiff to restore his business activities in order to fulfill his obligations to other participants in economic relations.

From the Russian Federation, represented by the Federal Bailiff Service, funds in the amount of 40,833,064 rubles were recovered from the treasury of the Russian Federation in favor of ERC-Dubna LLC. 52 kopecks (see the decision of the Arbitration Court of the Moscow Region dated October 7, 2015 in case No. A41-35607/2015).

• Assessing different methods of paying for utilities

The case under consideration is interesting precisely because the money of the management company was seized by the bailiffs and written off from the account of a third party solely by the willful decision of the bailiffs. They did not wait not only for the court decision to foreclose on funds held by a third party, but also for the results of the appeal of the decisions they made.

How effective is the mechanism for foreclosure on funds held by third parties in relation to the situation under consideration with the participation of the IRC and management organizations? The courts often side with the HOA and the management company, not allowing them to block settlements at the RPI level.

Example 1

The Arbitration Court of the Murmansk Region partially satisfied the claim: 16.938 million rubles were recovered from the HOA in favor of the enterprise. debt, the rest of the claim was denied. A writ of execution was issued, on the basis of which enforcement proceedings were initiated. The debtor did not fulfill the requirements in full. The bailiff appealed to the court with a statement: to foreclose on 30% of the funds to be transferred to the debtor LLC "Unified Settlement Center" in accordance with the agency agreement and the agreement on acceptance of payments, minus 1% of the remuneration from the amount of payments to be transferred to the resource supply organizations, within the debt - 14,940 million rubles. Funds must be transferred to the deposit account of the bailiffs department.

The courts of appeal and cassation came to the conclusion that funds accumulated in a separate settlement account of the URC at the expense of the population, intended for transfer to resource supply and service organizations, cannot be recognized as the property of the debtor (HOA), for which, in accordance with Art. 77 of the Law on Enforcement Proceedings, a penalty may be imposed. They are not the debtor’s funds and have a specific purpose: payment for housing and communal services provided by resource supply organizations, housing management services, payment of remuneration to the Unified Center under an agency agreement and an agreement on accepting payments.

No evidence of the presence of funds belonging to the debtor at the SRC was provided (see the ruling of the Supreme Court of the Russian Federation dated October 27, 2015 No. 307-ES15-13032 in case No. A42-5404/2012).

Example 2

The company appealed to the arbitration court with a statement: to foreclose in the amount of 3.491 million rubles. on the debtor’s property held by third parties, namely:

• for the funds of the HOA located in the current account of the State Unitary Enterprise “Computer Center for Collective Use of the Diversified Housing Complex”;
• for funds received after the adoption of a judicial act from the population living in houses managed by the HOA.

The courts of the first and appellate instances came to the conclusion that the funds received by the IRC on the basis of the agreement have a specific purpose - payment for utilities, maintenance and repair of the common property of apartment buildings. Foreclosing on these funds will lead to a violation of the rights and legitimate interests of the population who conscientiously fulfill their obligations to pay for housing and communal services. The courts rejected the application. The Court of Cassation supported their decisions (see the decision of the Arbitration Court of the North-Western District dated March 10, 2015 No. F07-9617/2013 in case No. A56-55814/2012).

Similar conclusions are contained in other judicial acts (see, for example, decisions of the Federal Antimonopoly Service of the North-Western District dated 09.24.2013 in case No. A42-8505/2012, of the North Caucasus District dated 07.26.2013 in case No. A53-30115/2012, Far Eastern District dated 09.12.2013 No. F03-5741/2013 in case No. A04-4881/2011).

But the exact opposite approach also occurs.

• Non-payments in housing and communal services and 5 ways to increase debt collection

Example 3

The bailiff of the Pervomaisky district department of bailiffs of the Federal Bailiff Service of Russia for the Penza Region appealed to the Arbitration Court of the Penza Region with a statement: to foreclose on the funds of the Yuzhanka Homeowners Association, arriving at the settlement account of Regional Information Center LLC, on the basis of Art. 77 of the Law on Enforcement Proceedings.

Refusing the applicant, the courts of first and appellate instances considered that payments received from the population for housing and utility services are not the property of the HOA, since they do not relate to the sources from which the defendant’s funds are generated.

However, according to Art. 151 of the Housing Code of the Russian Federation, the following property may be owned by the HOA:

• movable;
• real estate located inside or outside an apartment building.

The funds of the partnership are:

• obligatory payments;
• entrance and other fees of members of the partnership;
• income from the economic activities of the partnership aimed at achieving its goals, objectives and obligations;
• subsidies for ensuring the operation of common property in an apartment building, carrying out current and major repairs, providing certain types of utilities and other subsidies;
• other supply.

By virtue of Part 5 of Art. 155 of the Housing Code of the Russian Federation, members of the homeowners’ association make mandatory payments and (or) contributions related to the payment of expenses for the maintenance, current and major repairs of common property in an apartment building and utilities, in the manner established by the management bodies of the HOA.

Thus, the law directly classifies payment for housing and utilities as mandatory payments, which constitute the funds of the partnership.

The court canceled the judicial acts and decided to satisfy the stated requirements (see the decision of the Federal Antimonopoly Service of the Volga District dated March 4, 2010 in case No. A49-43/08).

• Can a management company increase housing maintenance rates unilaterally?

Example 4

The bailiff asked to foreclose on the debtor's funds coming to the bank account of a third party - the company "RKTs" Finance Technologies "". The court of first instance refused the applicant. Reasons:

• there is no evidence in the case materials that the funds held by a third party belong to the debtor;
• funds have a designated purpose.

At the same time, the court indicated that the collection of funds received from the population in the interests of one of the energy supply organizations affects the interests of the population as a consumer and may entail socially significant negative consequences: non-transfer of funds collected from the population to other energy supply organizations; lack of funds to eliminate accidents and carry out major repairs.

The Court of Appeal overturned the ruling of the court of first instance and partially satisfied the bailiff's statement: the collection can be applied to the debtor's funds held by a third party, within the limits of the actual debt under the writs of execution to the collectors. The court indicated that the conclusion of the court of first instance that the disputed funds belonged to the population did not comply with the Rules for the provision of public services to citizens, approved. Decree of the Government of the Russian Federation dated May 23, 2006 No. 307. The management organization is the provider of utility services, i.e., the person providing utility services, and not the consumer’s representative in relations with suppliers of utility resources (see Decree of the Federal Antimonopoly Service of the Ural District dated December 23, 2013 No. F09 -13364/13 in case No. A50-22039/2012).

A similar position was taken by the courts in other judicial acts (see decisions of the Federal Antimonopoly Service of the Ural District dated 10/02/2013 No. F09-8297/13 in case No. A71-1897/2010, Central District dated 06/06/2014 in case No. A14-18679/2009 and other judicial acts).

Thus, the judicial authorities have not developed a unified position on the category of cases under consideration. In this regard, there is scope for both judicial discretion and law enforcement creativity.

You can register limited liability companies and change agents quite often. Therefore, it seems more reasonable to block settlements at the RPI level. Otherwise, unscrupulous debtors may structure their relationship with the agent in such a way that creditors will not see their money at all.

However, the position of the Supreme Court of the Russian Federation, set out in the refusal ruling, gives reason to doubt the widespread practice of foreclosure of debt on the funds of HOAs and management companies in the settlement accounts of the IRC. This means that it will be possible to hide money from creditors, while observing reasonable caution, for quite a long time.

Federal Arbitration Court of the North Caucasus District in Resolution dated March 12, 2010 No. A53-1956/2009 made a very interesting conclusion: the funds received by the management organization from the owners of premises to pay for utilities have a specific purpose; foreclosure on funds received from the population in the interests of one of the energy supply companies affects the interests of the population as a consumer and may have socially significant negative consequences.

Consequently, satisfying the claimant’s demands at the expense of these funds will lead to a significant violation of the interests of third parties. Let’s try to figure out to what extent this conclusion is justified and complies with current legislation.

Without exaggeration, it can be argued that the conclusion of the FAS North Kazakhstan region is a “balm for the soul” both for management organizations and for homeowners’ associations. In the Resolution of the Federal Antimonopoly Service of North Kazakhstan, perhaps for the first time, the role of the management organization in resource supply relations is reduced to the intermediary function of transferring funds from consumers to resource supply companies. In addition, the court came to the defense of third parties who were not parties to the dispute under consideration (energy supplying enterprises and owners of premises in apartment buildings who faithfully fulfill their obligations).

However, it is not possible to agree with the court’s opinion due to the current rules of law. Let us justify this conclusion.

Management organizations and homeowners associations are providers of public services ( clause 3 of the Rules for the provision of utility services). The law imposes on them the obligation to enter into agreements with the RNO (clause “c” clause 49 of the Rules for the provision of utility services). These contracts are concluded on behalf and at the expense of the utility service provider himself. Resource supplying enterprises make demands on their counterparty - the utility service provider, and these requirements must be satisfied by transferring funds available in the account of the utility service provider.

According to clause 7 art. 155 Housing Code of the Russian Federation owners of premises in an apartment building, which is managed by a management organization, pay fees for residential premises and utilities to this organization. In accordance with pp. 1 item 2 art. 151 Housing Code of the Russian Federation HOA funds consist, among other things, of obligatory payments, entrance and other contributions of members of the partnership.
It is obvious that the above rules diverge from the position of the arbitrators set out in. Payments from owners deposited into the current account or cash register of the management organization (HOA) are at its full disposal and are not protected from foreclosure on them for the debts of the management organization (HOA). It seems that this is precisely the conclusion that corresponds to the current legislation.

The management of an apartment building, carried out by a management organization, partnership, or other company, is broader than performing the functions of an intermediary between the owners of premises in the building and the RSO (contractors). Hence the high risks and responsibility of managers.

In practice, there are cases when management organizations enter into agreements with RSOs on behalf and at the expense of the owners of premises in the house. Payments from citizens go directly to the accounts of the RSO, and the management organization receives remuneration under the agency agreement. Such a scheme contradicts current legislation, since it cannot be attributed to any of the three methods of managing an apartment building.

We continue to insist that if the owners of the premises in the house have chosen a management organization or HOA to manage the house, then the latter are liable to the RSO to the extent of all funds in their accounts, regardless of the intended purpose of the funds. Most arbitrators share this position (see, for example, Resolution of the Federal Antimonopoly Service No. A63-2216/2008-S3-13 dated 04/09/2009, No. A49-43/08 of the Federal Antimonopoly Service dated 03/04/2010, No. F10-3426/09 of the Federal Antimonopoly Service dated 12/04/2009).

So, Resolution dated March 4, 2010 No. A49-43/08 FAS PO recognized as lawful the imposition of a penalty on the funds of the HOA received into the bank account of the information and settlement center (agent) from the owners of the premises. In support of its position, the court referred to Art. 151, paragraph 5 of Art. 155 Housing Code of the Russian Federation and indicated that the law directly classifies payment for housing and utilities as mandatory payments, which constitute the funds of the partnership. A Federal Law of October 2, 2007 No. 229-FZ“On Enforcement Proceedings” allows for foreclosure on the debtor’s property held by third parties (Article 77).

At the same time, funds received from citizens to the account of the cash settlement center, which are obligatory payments to the HOA or payment for the services of the management organization, cease to be the property of the partnership and organization as soon as they are transferred to the contractor’s bank account (in payment for work performed for the HOA or management organization) . In other words, it is unacceptable to foreclose on funds that constitute the income of a third party ( Resolution of the Federal Antimonopoly Service UO dated 07/08/2009 No. Ф09-4599/09-С2).

In conclusion, we note that management organizations and HOAs should not attach decisive importance to the opinion of the arbitrators set out in Resolution of the Federal Antimonopoly Service of North Kazakhstan region dated March 12, 2010 No. A53-1956/2009. As stated earlier, their conclusion is not supported by the provisions of the current legislation, which has supreme force.