The uninformed Sberbank case: a request regarding the transaction of kickback form “Alpi” was filed with the SCA

07.06.2012

The Supreme Court of Arbitration may have to deal with the phenomena which originated from the 2008 crisis, when the banks hurried to recover debts and to take away the debtors’ property, and the other creditors were prevented from receiving anything under bankruptcy procedures. Judge Sergey Sarbash is studying the claim moved by a creditor of the “Alpi” retailer, who contests the kickback deal made by Sberbank during the 6 months period before the bankruptcy procedure initiation. Earlier the courts considered it legal, since the bank managed to show is unawareness of the retailer’s problems.

The Russian authorities have long believed Russia insured against the economic crisis of 2008, even mentioning “safe haven”, but the crisis ended up hitting Russian economy with more force than most other developed countries. And retail was one of the economy sectors that the decrease of the population’s income and crediting interruption affected very seriously. The Siberian “Alpi” (owner of 64 hypermarkets in several Russian regions) was one of the commercial networks that felt the impact immediately. As soon as August 6, 2008, the company declared a technical default, not being able to buy out the offered bonds of the debut issue for the amount of 1,4 billion roubles (the total sum of the issue was of 1,5 billion roubles). By the end of September of 2008 the default ceased being technical, and several bond holders, the largest among them – “Troyka Dialog” investment group, entered courts.

Several moths past, in March of 2009, “Pervaya Eskalatorno-Liftovaya Kompaniya (First Escalator and Elevator Company)” LLC initiated “Alpi”’s bankruptcy, and one month later the network itself filed a similar request to the Court of Arbitration of the Krasnoyarsky Territory. It stated that it owed to its creditors over 6 billion roubles, and the debt of compulsory payments exceeded 3 billion roubles.

However, the list of assets owned by “Alpi” had grown much shorter by then. The banks, which had credited the company, had already seized much of its property. For example, “Kommersant” newspaper wrote that “URSA-Bank” received four stores (according to some evaluations, the transaction was values within 3 billion roubles, and the objects were afterwards rented by the Siberian retailer “Sistema RegionMart”), and Sberbank gained almost half of “Alpi”’s immovable property under the kickback agreement executed in December of 2009 as compensation for the debt of 6,5 billion roubles.

“Alpi”’s property was later ceded to the state bank’s subsidiary created for work with problem assets, which sold it in early 2010 on auction. The company “AMK-Farma” (representing the interests of the SC “Regiony (Regions)” of Mutsoev brothers, Alik and Amiran) won the auction, gaining 24 commercial complexes with the total area of 324000 square meters. The lot was initially valued at 6,5 billion roubles, but the resulting price was lowered to 3,5 billion roubles.

And now the kickback agreement between “Alpi” and Sberbank may become subject to consideration by the Supreme Court of Arbitration of Russia. “Format” LLC (successor of “Sib-Eko” LLC, a creditor) filed a request with the highest court instance. “Format” has already tried to contest (case A27-7949/2011) the agreement dated December 29, 2008, according to which the state bank came into possession of an “Alpi” object – “Laplandia” trade center, with the area of almost 70000 square meters, - in the Court of Arbitration of the Kemerovo region. The claimant believed that the transaction was to be ruled invalid, since it had been aimed at the decrease of the bankruptcy assets and executed during the 6-month period before the bankruptcy procedure initiation.

The Court of Arbitration of Kemerovo region by its ruling dated December 6, 2011, dismissed the claim completely. On April 13, 2012, the 7th Arbitration Court of Appeal left the ruling unchanged. As the instance of appeal indicated in its judgment, “the claimant presented no proof of premeditated actions by the respondents aimed at causing damages to “Format” LLC”. The court also pointed to that earlier, within the framework of the “Alpi” bankruptcy case, “Sib-Eko” LLC was denied ruling the transactions with Sberbank invalid.

The courts’ main argument was that the bank could not know of the retailer’s problems. As proof, the argument of the existence of a report by “Finansovy sovetnik (Financial Advisor)” LLC (member of the list of valuer organizations for work with individuals borrowers of the Moscow Bank of Sberbank of Russia), which conducted the evaluation of “Alpi”’s condition for the bank, was given. The document said: “On the basis of the analysis of the debtor’s activity indicators, one may note that the enterprise’s financial situation is stable, and the company is sufficiently dependent on the external sources of financing. No negative tendencies are visible in the activity, judging by the analysis of the venture’s accountability reports. In the situation of financial instability the food retail market stays sufficiently stable”. Besides, the courts took into account that the information on “Alpi” bankruptcy was officially published by “Kommersant” newspaper as late as June 26, 2009 – “later that the date of completion of the contested transactions”.

“Format” does not agree with those conclusions. Its request says: “The court’s conclusion that “Sberbank Capital” was not aware of “Alpi”’s financial difficulties is based on the fact that as of the moment of completion of the contested transactions… the bank was unable to learn of the insolvency signs of the company or of their appearance in the future from official sources. But the bank could not know of it of the official publications about bankruptcy, since those could not exist”. Such documents only appear, once the bankruptcy procedure has been initiated. As far as “Finansovy sovetnik (Financial Advisor)” LLC report goes, it characterizes the retailer’s condition as of October 1, 2008, and not as of the moment of completion of the transactions, therefore “that proof is irrelevant and unacceptable”. The claimant also points out that “the court gave no evaluation of the fact that “Sberbank Capital” LLC is a subsidiary of Sberbank of Russia, specially created for managing the problem assets, which by itself may indicate awareness”.

Evgeny Mitrofanov, Director of “Format”, said to “Pravo.Ru”: “The whole problem is that the courts of all three instances charged us, the creditor, the claimant, with the duty to prove that Sberbank had known of the future bankruptcy of “Alpi”, but dismissed the fact that it was Sberbank who had to prove that it was not aware of the retailer’s condition”.

Many experts believe that there is no courts’ mistake in this situation. Artem Kukin, Partner of the Law Firm "YUST", is convinced: “In order to contest a transaction, one needs to prove that the creditor knew of the near-bankrupt condition of the debtor and executed the transaction in ill-faith. However, the court acts show that “Sberbank Capital” has proven that it had no possibility to learn of the real financial situation of “Alpi”. Moreover, the property was pledged, so that other third order creditors still can’t claim it”.

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The banks demanded that the pledges be charged as early as the summer of 2008, which fact also confirms that Sberbank structures were aware of “Alpi”’s problems. Andrey Gravanov, Vice President and a co-owner of “Alpi”, said: “The banks [then] claimed the pledged property, which caused large indebtedness. Obligations under tax payments arose, and the company can’t honor them. We had long-term facilities, but those were promptly withdrawn under various pretexts”.

Sberbank group was not available for comments. “Sberbank Capital” refused all contact, since it “has no press service, and is not authorized to make any declarations”. And the press service of “Sberbank” gave no reply to “Pravo.Ru” questions as of the moment of publishing this material (the questions were sent two days ago).

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“Alpi” OJSC was registered on February 26, 2006. The “Alpi” group included a network of stores of the same name and poultry factories. According to the evaluation by Oleg Tsarkov, managing partner of Svarog Capital, the holding’s earnings in 2008 reached 1 billion USD. According to SPARK, ALPI OJSC’s assets in 2007 were valued at 17 billion roubles. Alexey Podskhin, Evgeny Kharkov, Andrey Gravanov and Oleg Kriukov were the main shareholders.

The source of the publication is available here.