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Complaint against the manager in the sro. Appealing the actions of the bankruptcy trustee

For several years in a row, there have been rumors in the construction community that the system of self-regulation as we know it will soon come to an end. That the heads of self-regulatory organizations are about to roll (and with them the collected money of builders will fly in an unknown direction). And that everything is about to become completely different. Now it is clear that it was in 2017 that these rumors really became reality. At […]

The boy cried “wolf” for a very long time. So, gentlemen: wolves. This is far from the first construction self-regulatory organization to be excluded from the Rostekhnadzor register following a tip from the National Association. This is not the first time that hundreds of careless construction companies remain without clearance, thousands of construction workers are left without work, and many thousands of their family members are left without a livelihood (and all this […]

The cost of joining an SRO is one of the first indicators of a self-regulatory organization that you should pay attention to. Unless, of course, overpaying twice or more for the same things is not in your rules. However, if this were in your rules, you would hardly successful businessman, is not it?

How many bloody tears have already been shed over regionalization... But regionalization is not the only rotten apple that the legislators have treated construction industry in 372-FZ. There is also " single register specialists”... This innovation concerns everyone. Builders transferring to regional SROs. Builders who are not moving anywhere. Designers and surveyors who were not affected by regionalization at all. Requirements for specialists [...]

That's it, gentlemen. All notifications have been accepted, notifications are no longer accepted. The deadline for submitting them was the first of December. What does this mean for those who made it – and for those who didn’t? What to do next? Let's figure it out. The first stage of changes associated with the transition to regional self-regulatory organizations has been completed. At this stage, the builders were required to make a decision [...]

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In the process of declaring the financial insolvency of legal entities and individuals, if there are violations in the actions of the arbitration manager, participants in the bankruptcy process can complain about the manager to one of the authorities supervising the work of specialists.

Dear readers! Each case is individual, so check with our lawyers for more information.Calls are free.

The role of the arbitration manager in a bankruptcy case

Arbitration managers perform the most important control, regulatory and supervisory functions in the bankruptcy process of legal entities and individuals. Managers, as professional participants in bankruptcy cases, are called upon to maintain a balance of interests between creditors and to prevent abuse on the part of both parties. Depending on the stage, the process involves competitive, external and temporary managers. Depending on the stage, managers are vested with different powers.

The peculiarity of the bankruptcy manager is the wide range of his official powers and tasks performed in the case. He completely takes over the management of the debtor at the stage, must identify and return all property belonging to him, evaluate it and conduct auctions, and ensure settlements with staff.

Often in the process of working with bankruptcy trustees, creditors and the debtor arise, which give these parties grounds to appeal his actions in in the prescribed manner.

Grounds for filing a complaint against an arbitration or bankruptcy trustee

A complaint against the arbitration manager is filed for the purpose of protection legal rights and interests of bankruptcy creditors and authorized bodies.

The grounds for filing a complaint against a manager who is involved in a bankruptcy case are:

Failure to respect the rights and interests of persons participating in a bankruptcy case(for example, if the manager acts only in relation to a certain circle of participants and is, in fact, an interested party).
In case of non-compliance, which are assigned to the manager according to the law in Art. 20, 129 127-FZ.
In case of violation of legal requirements regarding the form and timing, which are listed in paragraph 11 of Art. 26.1, 143 127-FZ.
In case of non-compliance with the approved procedure of the debtor according to Art. 130 127-FZ.

The Supreme Arbitration Court, in its explanations, divided the misdeeds of the manager in a bankruptcy case into two large groups:

Ignoring his direct responsibilities.
Failure to comply with the work of managers and requirements for it according to Government Decrees.

The following violations in the work of a trustee in a bankruptcy case are considered the most serious:

Failure to fulfill direct duties(for example, the manager ignores legal requirements to conduct or does not submit reports on time).
Inaction(for example, on the issue of collecting receivables from bankrupt debtors, convening a creditors’ meeting, or returning and searching for the debtor’s property).
Hiding information from creditors or its deliberate distortion.
Overestimating the cost of third-party services. The manager has the right to involve in bankruptcy proceedings independent experts and third party specialists. Their payment is made from . But abuse of this right by the arbitration manager can lead to infringement of the interests of creditors.
Abuse of the right to refuse to accept creditor claims for inclusion in, challenging the debtor’s transactions and other rights.
Failure to comply with the instructions of the creditors' meeting.

The criterion that clearly indicates that the manager has committed an offense is the presence of direct property damage caused by his actions to the parties to the bankruptcy case.

How to write

A complaint against an arbitration manager is a procedural document, but is drawn up in a free format. It is served at mandatory compliance written format.

The structure of the complaint must comply with the provisions of Art. 131 Code of Civil Procedure. It consists of the following parts:

Introductory part indicating details and contact details of all parties.
A descriptive part indicating the essence of the problem and presenting evidence of the events described.
The operative part indicating the applicant's requirements.

The document must contain mandatory information and details, in particular:

Information that allows you to clearly identify the authority to which the document is submitted (SRO, arbitration court, division of Rosreestr, etc.).
Information about the applicant: its name or full name, details and contact information.
Bankruptcy case number.
Legal norms on which the applicant bases his claims: what procedural norms were violated by the manager, what provisions of substantive law were violated, etc.
The applicant's claims to the court or other authority. For example, remove the manager from work, cancel the decision he made, or bring him to property liability.

A sample complaint against an arbitration manager can be downloaded. The persons filing the complaint, or their representatives, if a power of attorney has been issued to them, must sign the complaint. The power of attorney must be notarized and delegate responsibilities for signing such documents.

If the complaint is submitted to the arbitration court, then it must comply with the rules of the APC.

Who can submit

It is worth considering that the list of persons who can file a complaint against the manager is legally limited. Only direct participants in the bankruptcy case have the right to appeal the actions of the manager:

Debtor, whose property is managed by the manager.
Creditor, which is aimed at maximizing recovery in its favor.

If a citizen or company is only indirectly connected with the bankruptcy procedure, then they cannot complain against the insolvency administrator. Their complaint will be left without consideration.

Where and how to file a complaint

Interested parties whose rights were violated during the bankruptcy process may complain against the insolvency practitioner:

To Rosreestr.
SRO managers.
Federal Tax Service.
Arbitration court.
Other authorities.

These institutions differ in terms of their competence and range of issues they consider, as well as the measures available to them to influence the manager.

A complaint against an arbitration manager should be submitted within the established time frame: within 30 days after receiving information about a violation of the rights of a certain party to the bankruptcy process.

You can submit complaints in one of the following ways:

Personally.
By registered mail.
Using electronic services, if they are developed by the department.

Rosreestr

Rosreestr performs the duties of recording SROs and monitoring their work. You can also go here to appeal the actions of SRO managers.

In Part 3 of Art. 14.13 of the Code of Administrative Offenses states that violations committed or inaction of the manager are an administrative offense. To hold the manager accountable under the norms of the Administrative Code, you can complain about him to the territorial division of Rosreestr.

If the complaint is sent to the central office of the department, it will not be considered or its consideration will take longer than expected.

Based on the results of consideration of the complaint, Rosreestr may hold the manager accountable or petition for his removal from office.

SRO

You can complain about the manager’s failure to comply with his tasks and low professionalism to the SRO. It must monitor the professional level of its members. Upon receipt of a complaint by the SRO, a special disciplinary commission will be convened, which will determine the future fate of the manager.

Based on the results of consideration of the complaint by the SRO, the organization may decide to impose penalties on the manager or disqualify him.

The Federal Tax Service

The Federal Tax Service should also monitor bankruptcy cases of legal entities. This can be addressed, in particular, when identifying financial fraud committed by a manager, or when actually raider takeover enterprises, property of the debtor.

It is worth sending a complaint to the Federal Tax Service for serious offenses. Based on the results of the complaint, the manager may also face criminal penalties. If he is found guilty, he faces disqualification.

Also, the manager may be removed from the case and subject to punishment in the form of a fine in the amount of 25 thousand rubles.

Appeal to the arbitration court

The procedure for considering complaints against the manager is considered in separate provisions of 127-FZ. In particular, in Art. 60 127-FZ. - This is the first instance where participants in a bankruptcy case should turn to protect their interests. After all, it is the court that is called upon to monitor the activities of appointed arbitration managers. He also has the exclusive prerogative to remove the manager from the case and recover property damage from him. The court may also overturn individual decisions of the trustee in a bankruptcy case.

Based on Part 1 of Art. 60 FZ-127 of 2002, complaints from creditors in a bankruptcy case about violations of rights and legitimate interests are considered in arbitration courts no later than a month from the date of receipt. The complaint is considered by the arbitration judge alone.

Based on the results of consideration of the complaint in the arbitration court, a ruling is issued. It can be appealed in accordance with the procedure established in Federal Law No. 127.

According to Part 2, 3 Art. 60 127-FZ of 2002, the following categories of complaints must be considered within thirty days:

regarding disagreements between the manager and citizens, in whose favor an act of recovery of damage caused to life and health was issued;
between the manager and representatives of the debtor's employees for the situations specified in paragraph 11 of Art. 16 127-FZ (disagreements related to the priority, amount of requirements for payment of severance pay and wages);
on actions of the arbitration manager that violate the interests of persons participating in the process.

In paragraph 4 of Art. 60 127-FZ stipulates that applications filed by persons who do not have the right to appeal (those who are not participants in the bankruptcy case and whose rights have not been violated), or with violations, are returned to the applicant.

Other authorities

In addition to the authorities listed above, a complaint against the manager can be filed with the prosecutor's office, the Ministry of Finance or the Ministry of Internal Affairs.

Thus, participants in a bankruptcy case have the right to appeal the actions or inactions of the arbitration manager, as a result of which they suffered property damage. A complaint can be filed with an arbitration court, Rosreestr, Federal Tax Service or SRO managers.

1.1. This document defines the Company's policy with limited liability" " (hereinafter referred to as the Company) regarding the processing of personal data.

1.2 This Policy has been developed in accordance with current legislation Russian Federation about personal data.

1.3 This Policy applies to all processes of collection, recording, systematization, accumulation, storage, clarification, extraction, use, transfer (distribution, provision, access), depersonalization, blocking, deletion, destruction of personal data carried out using automation tools and without the use of such means.

1.4. The policy is strictly followed by the Company's employees.

Definitions

Personal Information- any information relating to a directly or indirectly identified or identifiable individual (subject of personal data);

operator - government agency, municipal body, legal or individual, independently or jointly with other persons organizing and (or) carrying out the processing of personal data, as well as determining the purposes of processing personal data, the composition of personal data to be processed, actions (operations) performed with personal data;

processing of personal data- any action (operation) or set of actions (operations) performed using automation tools or without the use of such means with personal data, including collection, recording, systematization, accumulation, storage, clarification (updating, changing), extraction, use, transfer (distribution, provision, access), depersonalization, blocking, deletion, destruction of personal data;

automated processing of personal data- processing of personal data using computer technology;

dissemination of personal data- actions aimed at disclosing personal data to an indefinite number of persons;

provision of personal data- actions aimed at disclosing personal data to a certain person or a certain circle of persons;

blocking of personal data- temporary cessation of processing of personal data (except for cases where processing is necessary to clarify personal data);

destruction of personal data- actions as a result of which it becomes impossible to restore the content of personal data in the personal data information system and (or) as a result of which material media of personal data are destroyed;

depersonalization of personal data- actions as a result of which it becomes impossible without using additional information determine the ownership of personal data to a specific subject of personal data;

personal data information system- the totality of personal data contained in databases and ensuring their processing information technologies and technical means.

Principles and conditions for processing personal data

3.1. The processing of personal data is carried out on the basis of the following principles:

1) The processing of personal data is carried out on a legal and fair basis;

2) The processing of personal data is limited to the achievement of specific, predetermined and legitimate purposes. Processing of personal data that is incompatible with the purposes of collecting personal data is not permitted;

3) It is not allowed to combine databases containing personal data, the processing of which is carried out for purposes incompatible with each other;

4) Only those personal data that meet the purposes of their processing are subject to processing;

6) When processing personal data, the accuracy of personal data, their sufficiency, and, if necessary, relevance in relation to the stated purposes of their processing are ensured.

7) The storage of personal data is carried out in a form that makes it possible to identify the subject of personal data no longer than required by the purposes of processing personal data, unless the period for storing personal data is established by federal law, an agreement to which the subject of personal data is a party, beneficiary or guarantor. The processed personal data is subject to destruction or depersonalization upon achievement of the processing goals or in the event of loss of the need to achieve these goals, unless otherwise provided by federal law.

8) The Company in its activities proceeds from the fact that the subject of personal data provides accurate and reliable information during interaction with the Company and notifies Company representatives about changes in his personal data.

3.2. The company processes personal data only in the following cases:

processing of personal data is carried out with the consent of the subject of personal data to the processing of his personal data;
the processing of personal data is carried out in connection with the participation of a person in constitutional, civil, administrative, criminal proceedings, proceedings in arbitration courts;
processing of personal data is necessary for the execution of a judicial act, an act of another body or official subject to execution in accordance with the legislation of the Russian Federation on enforcement proceedings (hereinafter referred to as the execution of a judicial act);
processing of personal data is necessary for the execution of an agreement to which the subject of personal data is a party or beneficiary or guarantor, as well as for concluding an agreement on the initiative of the subject of personal data or an agreement under which the subject of personal data will be a beneficiary or guarantor;
the processing of personal data is necessary to protect the life, health or other vital interests of the subject of personal data, if obtaining the consent of the subject of personal data is impossible;

3.4. The company has the right to entrust the processing of personal data of citizens to third parties on the basis of an agreement concluded with these persons.
Persons processing personal data on behalf of LLC Law Firm“Start” undertake to comply with the principles and rules for the processing and protection of personal data provided for by Federal Law No. 152-FZ “On Personal Data”. For each person, a list of actions (operations) with personal data that will be performed is determined legal entity processing personal data, the purposes of processing, the obligation of such a person to maintain confidentiality and ensure the security of personal data during their processing is established, and the requirements for the protection of processed personal data are also specified.

3.5. If the Company entrusts the processing of personal data to another person, liability to the subject of personal data for the actions the specified person is borne by the Company. The person processing personal data on behalf of the Company is responsible to the Company.

3.6. The Company does not make decisions based solely on automated processing of personal data that give rise to legal consequences in relation to the subject of personal data or otherwise affect his rights and legitimate interests.

3.7. The company destroys or depersonalizes personal data upon achieving the purposes of processing or in the event of the loss of the need to achieve the purpose of processing.

Subjects of personal data

4.1. The company processes personal data of the following persons:

employees of the Company, as well as entities with whom civil contracts have been concluded;
replacement candidates vacant positions in company;
clients of LLC Legal Company "Start";
users of the website of LLC Legal Company "Start";

4.2. In some cases, the Company may also process personal data of representatives of the above-mentioned personal data subjects authorized on the basis of a power of attorney.

Rights of personal data subjects

5.1. The subject of personal data whose data is processed by the Company has the right to:

5.1.1. Receive from the Company within the time limits provided for by law the following information:

confirmation of the fact of processing of personal data by LLC Legal Company “Start”;
on the legal grounds and purposes of processing personal data;
about the methods used by the Company for processing personal data;
about the name and location of the Company;
about persons who have access to personal data or to whom personal data may be disclosed on the basis of an agreement with LLC Legal Company "Start" or on the basis federal law;
a list of processed personal data relating to the citizen from whom the request was received and the source of its receipt, unless a different procedure for providing such data is provided for by federal law;
about the terms of processing of personal data, including the periods of their storage;
on the procedure for a citizen to exercise the rights provided for by the Federal Law “On Personal Data” No. 152-FZ;
name and address of the person processing personal data on behalf of the Company;
other information provided for by the Federal Law “On Personal Data” No. 152-FZ or other federal laws.

5.1.2. Request clarification of your personal data, their blocking or destruction if the personal data is incomplete, outdated, inaccurate, illegally obtained or is not necessary for the stated purpose of processing.

5.1.3. Withdraw your consent to the processing of personal data.

5.1.4. Demand elimination misconduct Company in relation to his personal data.

5.1.5. Appeal against the actions or inaction of the Company in Federal service for supervision in the field of communications, information technology and mass communications or in judicial procedure in the event that a citizen believes that Start Legal Company LLC processes his personal data in violation of the requirements of Federal Law No. 152-FZ “On Personal Data” or otherwise violates his rights and freedoms.

5.1.6. To protect your rights and legitimate interests, including compensation for losses and/or compensation for moral damage in court.

Responsibilities of the Company

6.1. In accordance with the requirements of Federal Law No. 152-FZ “On Personal Data”, the Company is obliged to:

Provide the subject of personal data, upon his request, with information regarding the processing of his personal data, or, on legal grounds, provide a reasoned refusal containing a reference to the provisions of the Federal Law.
At the request of the personal data subject, clarify the processed personal data, block or delete if the personal data is incomplete, outdated, inaccurate, illegally obtained or is not necessary for the stated purpose of processing.
Keep a log of requests from personal data subjects, which should record requests from personal data subjects to receive personal data, as well as facts about the provision of personal data in response to these requests.
Notify the subject of personal data about the processing of personal data if the personal data was not received from the subject of personal data.

The following cases are exceptions:

The subject of personal data is notified of the processing of his personal data by the relevant operator;

Personal data was obtained by the Company on the basis of federal law or in connection with the execution of an agreement to which the subject is a party or beneficiary or guarantor.

Personal data was obtained from a publicly available source;

Providing the subject of personal data with the information contained in the Notice of processing of personal data violates the rights and legitimate interests of third parties.

6.2. If the purpose of processing personal data is achieved, the Company is obliged to immediately stop processing personal data and destroy the relevant personal data within a period not exceeding thirty days from the date of achieving the purpose of processing personal data, unless otherwise provided by the agreement to which the subject is a party, beneficiary or guarantor personal data, another agreement between the Company and the subject of personal data, or if the Company does not have the right to process personal data without the consent of the subject of personal data on the grounds provided for by No. 152-FZ “On Personal Data” or other federal laws.

6.3. If the subject of personal data withdraws consent to the processing of his personal data, the Company is obliged to stop processing personal data and destroy personal data within a period not exceeding thirty days from the date of receipt of the said withdrawal, unless otherwise provided by an agreement between the Company and the subject of personal data. The Company is obliged to notify the subject of personal data about the destruction of personal data.

6.4. If a subject receives a request to stop processing personal data in order to promote goods, works, and services on the market, the Company is obliged to immediately stop processing personal data.

6.5. The company is obliged to process personal data only with consent from writing subject of personal data, in cases provided for by Federal Law.

6.7. The company is obliged to explain to the subject of personal data the legal consequences of refusal to provide his personal data if the provision of personal data is mandatory in accordance with Federal Law.

6.8. Notify the subject of personal data or his representative about all changes concerning the corresponding subject of personal data.

Information about the measures taken to protect personal data

7.1. When processing personal data, the Company takes the necessary legal, organizational and technical measures to protect personal data from unauthorized or accidental access, destruction, modification, blocking, copying, provision, distribution of personal data, as well as from other unlawful actions in relation to personal data.

7.2. Ensuring the security of personal data is achieved, in particular:

identifying threats to the security of personal data during their processing in information systems ah personal data;
application of organizational and technical measures to ensure the security of personal data during their processing in personal data information systems necessary to fulfill the requirements for the protection of personal data, the implementation of which ensures the levels of personal data security established by the Government of the Russian Federation;
the use of information security means that have passed the compliance assessment procedure in accordance with the established procedure;
assessing the effectiveness of measures taken to ensure the security of personal data before putting into operation the personal data information system;
taking into account computer storage media of personal data;
detecting facts of unauthorized access to personal data and taking measures;
restoration of personal data modified or destroyed due to unauthorized access to it;
establishing rules for access to personal data processed in the personal data information system, as well as ensuring registration and accounting of all actions performed with personal data in the personal data information system;
control over the measures taken to ensure the security of personal data and the level of security of personal data information systems.
assessment of the harm that may be caused to subjects of personal data in the event of a violation of the legislation of the Russian Federation in the field of personal data, the relationship between this harm and the measures taken aimed at ensuring compliance with the legislation of the Russian Federation in the field of personal data.