Automatically translated version. May contain inaccuracies compared to the original.
The Supreme Court ordered consideration of the FGVO’s lawsuit against Demchak and former top managers of Erde Bank
05.08.2021 The Supreme Court satisfied the cassation appeal of the Deposit Guarantee Fund and annulled the ruling of the Commercial Court of Kyiv dated 15.12.2020 and the decision of the Northern Commercial Court of Appeal dated 25.02.2021 (in case No. 910/19584/20), by which the Fund’s lawsuit against former officials of "Erde Bank" seeking joint recovery of 137,5 million UAH was returned to it.
The court of cassation transferred this case to the court of first instance to decide the issue of opening proceedings on the Fund’s claim.
Among the defendants is, among others, Ruslan Demchak — a former shareholder of that bank, a former People's Deputy, and a former deputy chair of the Verkhovna Rada Committee on Financial Policy and Banking.
According to the court files, the Fund justified its claim by stating that the defendants, who were members of the bank's governing bodies, “made unreasonable decisions to lend to borrowers directly or indirectly related to the bank’s owners, without providing any collateral (or collateral commensurate with the loan amount), with excessive concentration of credit risk and unjustified extensions of loan terms, which led to losses to the bank in the amount of 137 454 309,83 UAH” (quote).
The courts of first and appellate instance decided that by filing this claim the Fund violated the rules on joinder of claims.
By contrast, the Supreme Court noted the following on this matter:
“The courts of previous instances referred to the fact that each credit transaction is an independent legal relationship and gives rise to civil rights and obligations of the parties to that legal relationship, which precludes joinder of claims under Article 173 of the Commercial Procedural Code even if the plaintiff combined the amounts of the damages into a single amount.
<...> From the case materials it is apparent that the common ground for the Fund’s bringing of this claim is the improper performance by the officers of the Bank’s governing bodies of their official duties, as a result of which, according to the plaintiff, the Bank sustained losses.
At the same time, from the claims and the reasoning part of the statement of claim there is no discernible difference in the subject composition of the defendants who made decisions on each of the agreements.
The claims asserted by the plaintiff against the five defendants are interconnected by the submitted evidence regarding the need to examine the circumstances of the bank’s insolvency, the banking operations carried out and their impact on the bank’s overall financial condition.
The Fund’s claims against the five defendants — individuals (who were members of the Bank’s governing bodies) — are linked by the same method of protecting the rights and legitimate interests: joint recovery of the damages caused.
In the ruling of the Grand Chamber of the Supreme Court dated 25.05.2021 in case No. 910/11027/18 conclusions were made regarding the need to consider within one case the claims filed by the Fund pursuant to Article 58 of the Law “On Banks and Banking Activity” against 14 persons related to the bank who are officials of two different governing bodies of the bank (the supervisory board and the management board).
<...> This gives grounds to consider that the Fund did not violate the rules on joinder of claims provided for in part 1 of Article 173 of the Commercial Procedural Code, and therefore the courts of previous instances reached an erroneous conclusion about the need to return the Fund’s statement of claim and the documents attached thereto under paragraph 2 of part 5 of Article 174 of the Commercial Procedural Code.”
“Erde Bank” was placed into liquidation as early as January 2013. The respective process was completed in November 2018.
As Finbalance wrote, in 2018 the Deposit Guarantee Fund filed a claim against former top managers of "Erde Bank" to recover damages in the amount of 587 million UAH.
Among the defendants was, among others, R. Demchak.
In 2012 R. Demchak ran for the Verkhovna Rada in a single-mandate district in Vinnytsia region. Amid a conflict with some representatives of the then-authorities he was detained in pretrial detention for several months (law enforcement accused him of organizing schemes to launder funds), which, it should be understood, ultimately deepened the challenges for "Erde Bank" and was accompanied by the withdrawal of the financial institution from the market.
In April 2018 the Deposit Guarantee Fund reported that depositors of "Erde Bank" received compensation within the guaranteed amount totaling 457,8 million UAH.
The Fund-approved book value of the bank’s assets is 1,1 billion UAH, while the appraised value is 246,3 million UAH.
“Such a large discrepancy in the figures is due, among other things, to the fact that, for example, even before the bank was declared insolvent loans were granted to a limited circle of counterparties. As of early August 2012 the total indebtedness of these borrowers amounted to 484,88 million UAH, which was 70,38% of the entire corporate loan portfolio. At the same time, almost 44% of these loans are blank (nominal), and for others the value of collateral did not cover the actual amount of indebtedness.
As part of the liquidation procedure receipts to the bank from asset sales amounted to 131,00 million UAH. Receipts from loan repayments and interest on loans amounted to 39,65 million UAH.
During the liquidation, 41 reports were filed with law enforcement regarding facts of violations of legislation discovered during work at the bank for a total amount of 785,06 million UAH.
In addition, the Fund presented claims in the amount of 587 046 174,11 UAH against 23 persons related to the bank, whose actions or inaction led to harm to creditors and the bank,” the FGVO said in an official statement.
In February 2018 the Antimonopoly Committee of Ukraine (AMCU) allowed Ruslan Demchak to concentrate more than 50% of RVS Bank’s shares. At the same time permission was granted to Oleksandr Stetsyuk to acquire more than 25% of RVS Bank’s shares, and to receive from R. Demchak, under a corporate rights management agreement, more than 50% of the bank’s shares into management.
RVS Bank was created in August 2015 on the basis of the insolvent Omega Bank and was purchased by the “Ukrainian Business Group” (UBG), which, it was reported, was controlled by R. Demchak and which owned "Erde Bank." In November 2016 the NBU revoked RVS Bank’s status as a transitional bank and granted it a full banking license.
As of 01.01.2021 the owner of 99% of RVS Bank’s shares was Oleksandr Stetsyuk, and the owner of 1% of the shares was Ruslan Demchak.
Context
As Finbalance wrote, 28.07.2021 the Supreme Court satisfied the cassation appeal of the Deposit Guarantee Fund and annulled the ruling of the Commercial Court of Kyiv dated 14.09.2020 and the decision of the Northern Commercial Court of Appeal dated 08.12.2020 (in case No. 910/12955/20), by which the Fund’s claim against former members of the management board and supervisory board of Platinum Bank seeking joint recovery of 1,48 billion UAH was returned to it.
Among the defendants are Kateryna Rozhkova (former acting chair of Platinum Bank’s management board, currently first deputy governor of the NBU), Kostyantyn Smolskyi (former head of Platinum Bank’s management board), Hryhoriy Hurtovyi (former chair of the supervisory board), and others.
The Supreme Court transferred that case to the Commercial Court of Kyiv to decide the issue of opening proceedings.
25.05.2021 The Grand Chamber of the Supreme Court satisfied the Deposit Guarantee Fund’s claim against the managers of the insolvent bank “Ukoopspilka” (in case No. 910/11027/18) and decided to jointly recover 77 million UAH from the defendants in favor of the plaintiff.
The Deposit Guarantee Fund noted that “this is the first final court decision in this category of cases that should form case law, and will also resume consideration of another 36 similar cases about recovery of damages by related persons in respect of other banks.”
“The Deposit Guarantee Fund initiated 64 similar cases against 774 defendants (shareholders and related persons of insolvent banks) for a total amount of more than 97,2 billion UAH, 36 of which were suspended pending the Grand Chamber of the Supreme Court’s consideration of the Ukoopspilka case,” the Deposit Guarantee Fund stated.
16.10.2020 The Supreme Court refused to satisfy the Deposit Guarantee Fund’s cassation appeal and left unchanged the ruling of the Commercial Court of Kyiv dated 16.09.2019 and the decision of the Northern Commercial Court of Appeal dated 27.11.2019 (in case No. 910/7186/19), by which the former top managers of the bankrupt Delta Bank’s motion was granted and the Fund’s claim against them to recover damages of 19,83 billion UAH was left without consideration.
Among the defendants in that case were, among others, the former chair of Delta Bank’s supervisory board and its former major shareholder Mykola Lagun, as well as former members of the management board and supervisory board of the institution (Olena Popova, Vitaliy Masiura, Figlus Marcin, Yaroslav Porokhniak, etc.).
25.07.2019 In case No. 916/2733/18 the Supreme Court returned to the Deposit Guarantee Fund its statement of claim against former beneficiaries and top managers of Imexbank seeking recovery of 18,98 billion UAH of caused damages (quote).
08.04.2019 In case No. 910/16336/18 the Supreme Court returned to the Fund its claim against some former shareholders and top managers of Nadra Bank seeking recovery of 10 billion UAH of damages.
18.05.2021 The Northern Commercial Court of Appeal refused to satisfy the Deposit Guarantee Fund’s appeal and left unchanged the decision of the Commercial Court of Kyiv dated 01.02.2021 (in case No. 910/9851/20), which denied the Fund’s claim against former managers of Trust Bank to recover damages in the amount of 395 million UAH, which, according to the Fund’s estimates, were caused by “improper performance by the defendants of their employment duties” — engaging in “risky activities contrary to the interests of Trust Bank and its creditors” (quote).
04.03.2021 The Northern Commercial Court of Appeal refused to satisfy the Deposit Guarantee Fund’s appeal and left unchanged the decision of the Commercial Court of Kyiv dated 24.09.2020 (in case No. 910/12930/18), which denied the Fund’s claim against former members of the management board, supervisory board, and credit committee of Daniel Bank to recover 1,13 billion UAH.
11.01.2021 The Northern Commercial Court of Appeal refused to satisfy the Deposit Guarantee Fund’s appeal and left unchanged the ruling of the Commercial Court of Kyiv dated 14.08.2020 in case No. 903/515/20, by which the Fund’s statement of claim against 9 individuals seeking recovery of 123,3 million UAH of damages alleged to have been caused to Zakhidincombank was returned to it.
10.06.2020 The Northern Commercial Court of Appeal refused to satisfy the Deposit Guarantee Fund’s appeal and left unchanged the decision of the Commercial Court of Kyiv dated 16.01.2020 (in case No. 910/15260/18), which denied the Fund’s claim against former members of the supervisory board, management board, and credit committee of the bankrupt Standard Bank to recover 764 million UAH of damages that, according to the Fund, were caused due to insufficient bank assets to cover creditors’ claims and by unlawful actions of the defendants.
19.02.2020 The Northern Commercial Court of Appeal refused to satisfy the Deposit Guarantee Fund’s appeal on the decision of the Commercial Court of Kyiv dated 13.03.2019 (in case No. 910/12803/18), which denied the Fund’s claim against former officials of Tavryka Bank to jointly recover 2,68 billion UAH of damages caused.
24.10.2019 The Commercial Court of Kharkiv Region refused to satisfy the Deposit Guarantee Fund’s claim against former top managers of Zoloti Vorota Bank to jointly recover caused damages in the amount of 563,2 million UAH (case No. 922/2860/18).
18.09.2019 The Northern Commercial Court of Appeal refused to satisfy the Deposit Guarantee Fund’s appeal and left unchanged the decision of the Commercial Court of Kyiv dated 28.02.2019 (in case No. 910/11371/18), which denied the Fund’s claim against former officials of Lehbank to recover damages of 412,2 million UAH.
07.08.2019 The Supreme Court satisfied the Deposit Guarantee Fund’s cassation appeal in case No. 910/10888/18 and annulled the decisions of lower commercial courts that had left the Fund’s claim against former top managers of Forum Bank to recover 1,99 billion UAH of “damage caused to the bank by related persons” (quote). The court of cassation transferred that case for consideration to the Commercial Court of Kyiv, which returned the Fund’s claim without consideration.
The Fund also filed a civil claim against former officials of Forum Bank for 1,99 billion UAH (case No. 757/75153/17-c). In spring 2018 the Pechersky District Court of Kyiv refused to satisfy those claims of the Fund. Later the Kyiv Court of Appeal annulled that decision, citing improper jurisdiction. The appellate court’s ruling was left unchanged by the Supreme Court in September–2019.
25.07.2019 The Supreme Court refused to satisfy the cassation appeal of the former head of the management board and shareholder of Kyivska Rus Bank, Viktor Bratko, and left unchanged the decision of the Northern Commercial Court of Appeal dated 21.02.2019, by which case No. 910/15469/18 (on the Deposit Guarantee Fund’s claim against V. Bratko and other officials of Kyivska Rus Bank to recover 1,67 billion UAH) was transferred to the Commercial Court of Kyiv for consideration.
finbalance
Document: PDF proof of the original version of the news item "Верховний Суд наказав розглянути позов ФГВФО до Демчака й екс-топів Ерде Банку". It records the publication content at the moment of the first scan, the preservation date and the source: ANTIKOR.