The ninth arbitration appeal court left without change the decision of the Moscow Arbitration court on cases about the claims of the Bank “trust” to “willow river” and “Retail chain” associated with the former shareholders of “Trust”. Resolution passed 26 and August 23, respectively, according to information on the court’s website.
Thus, the capital’s arbitration court has cancelled the supplementary agreement to the four credit contracts, the Bank “trust”, which is currently in rehabilitation from a group of “OTKRITIE holding. The total amount of these contracts is $of 132.4 million and 720 million rubles., the last of which was signed shortly before the beginning of procedure of financial recovery of “Trust”. The court emphasized that the ultimate beneficiaries (owners) of companies-defendants are former principal shareholders of the Bank — Ilya Yurov, Nikolay Fetisov and Sergey Belyaev. “They were not interested in challenging these additional agreements to loan agreements which are actually in view of this circumstances have concluded with themselves,” — said the arbitration.
“These decisions are important for us, because the recovery of distressed assets is one of the key directions of the project for the improvement of the Trust”: it reduces the costs that the state bears to the rescue”, — commented on the decision of arbitration Director of the legal Directorate of the Bank “trust” Sergei Massarsky. According to him, these decisions mean that the trust may demand performance of the original terms of credit agreements and reimbursement of the loss incurred by Bank as a result of changing conditions.
The amount of claims to “willow river” and “Retail chain” can amount to several billion rubles, calculated in the credit institution. “We have also created an important precedent for the institution of financial rehabilitation. Sanatory can challenge transactions, which were concluded in obviously unprofitable for the rehabilitated banks conditions before starting the procedure of improvement,” he added.
As follows from the case materials in November-December 2010, the trust issued a “willow river” and “Retail chain” two credits. Willow river received loans of $31 million at a rate of 5% per annum and on RUB 200 million at a rate of 13.5% per annum. “Retail chain” — at $81.5 million and 520 million rubles at the same rates.
From 17 Dec 2013 to 17 Dec 2014 (the last agreement was signed five days before the beginning of rehabilitation “Trust” on December 22, 2014) to the credit agreements have been signed the additional agreement under which dollar-denominated loans were converted to ruble, and, as explained by “trust”, “were installed non-market rate of 7% and unfavorable amortization schedule, providing for a long vacation credit”. Contracts were also excluded the Bank’s right to demand changes unilaterally in case of violation by the borrowers of their obligations and be entitled to demand the repayment of the loan amount.
As noted by the arbitration at the time of signing additional agreements of “Trust” as the sole Executive body of the Bank has acted the Chairman of the Board Oleg Dikusar. Now he and former chief financial officer of the Trust “Eugene Romakov are accused of complicity in the withdrawal of the Bank’s assets under the guise of granting loans and the translation of the liquidity of the Trust” controlled by the company and are in custody awaiting trial. According to the estimates of investigators, the result of their actions, the Bank received damage at 14.6 billion rubles.
On the side of “Trust”
May 16, the Metropolitan, the Arbitration court declared the additional agreement in the four agreements invalid. The court explained that the right of the Bank to change the rate unilaterally and to demand early repayment of the loan is a “standard terms and conditions of the loan agreement”. “The exclusion of these conditions of supplementary agreements deprived the Bank to monitor debt and ensure a refund that upset the balance of interests,” he said in the decision.
The agreement, according to the court, had non-market character of the Bank and the missed benefit in the form of interest. The total amount of provided loan funds amounted to 1.3 bln roubles, which at the time of conclusion of the agreements exceed four times the amount of equity funds of the Trust”.
As shown by the results of the comparison of changes in key Central Bank with an effective interest rate under the credit agreements, the effective interest rate reflecting the real return on the loan agreements was considerably below the level of the key. The peak level had an effective on the date of prolongation of credit agreements, says the decision of capital arbitration. According ISETs incurred from the transactions of the damage exceeded $ 566,4 million, and the Bank lost the opportunity to recover even part of the loans by 2019.
According to Massarsky, taking into account the appeals court decision, “the trust may require, in particular, the performance of the original terms of the loan agreements, including refund in the terms specified in them.
Experts believe this decision by predecent that can be supported by other banks. “There is a risk that this practice may spread “non-market” transactions in the “market”, that is, if a borrower took out a loan and somehow it restructured, and then the new administration challenged it on the grounds that the restructuring took place on a supposedly disadvantageous to the Bank conditions,” explains Tertychny Law Ivan tertychnyy. “Many banks will go on this path, but in the case of sanctions to banks which have a problem to prove the affiliation of companies to the former shareholders to challenge the deal the new owners,” — said the Chairman of the Bank MIA Dmitry Zubkov.
Sanitation of “Trust”, which at that time in top-30 Russian credit banks by assets, began in late 2014. As explained, the Central Bank, this credit institution was found signs of withdrawal of assets, which the Bank used the scheme for lending to borrowers, “no leading real economic activity, as well as financing investment projects, not income generation”. The regulator in may 2015 estimated “hole” in the balance of “Trust” to 114 billion roubles, where about half of the amount accounted for unserviced loans that were issued to structures close to the former owners of the Bank — the internationally wanted Ilya Yurov, and Fetisov and Belyaev.
At the present time; “Trust” is the “OTKRITIE holding, but in connection with change of conditions of reorganization of the Agency for Deposit insurance (DIA) is holding a new contest to choose the nursing home. “The opening of the holding at the end of 2014 received for the rehabilitation of “Trust” 127 billion rubles from the state.
The return of assets withdrawn in the form of loans for these structures is the main difficulty in rehabilitation “Trust”. In the spring of 2015, “trust” is suing the family of corporate borrowers, some of which are associated with the former shareholders Yurov, Belyaev and Fetisov.