Automatically translated version. May contain inaccuracies compared to the original.
Supreme Court: FGVD Delayed Filing Suit Against Lahun and Former Delta Bank Executives
23.07.2021 The Supreme Court refused to satisfy the cassation appeals of the Deposit Guarantee Fund and the liquidator of Delta Bank and left unchanged the decisions of the lower courts in case No.826/17810/18, which granted the claim of a depositor of the bankrupt Delta Bank, declared the inaction of the Deposit Guarantee Fund and the liquidator of Delta Bank unlawful, and obliged the defendants to file a suit against the significant owners and officers of Delta Bank.
During the litigation, the Deposit Guarantee Fund noted that the law “On the System of Guaranteeing Individuals’ Deposits” “provides the Fund with the right, not the obligation, to bring relevant claims against persons related to the bank” (quote). At the same time, the Fund assured that for a long time it had taken “legally significant and mandatory actions that were objectively necessary” to exercise that right.
In turn, the liquidator of Delta Bank expressed the view that filing such claims was possible after establishing that the bank’s assets were insufficient to satisfy creditors’ claims, and only after the liquidation process was completed. He also stated that ultimately the claim was filed in 2019.
The Supreme Court, however, pointed out that the liquidation of Delta Bank lasted several years, and the suit against the significant owners and officers of Delta Bank was filed only after the Delta Bank depositor had filed a suit against the Deposit Guarantee Fund. In view of this, the cassation court found the Deposit Guarantee Fund’s inaction unlawful.
At the same time, the Supreme Court reported that “the case materials contain evidence of an authorized person of the Deposit Guarantee Fund for the liquidation of JSC ‘Delta Bank’ contacting law enforcement agencies regarding possible episodes of crimes committed by the bank’s officers and significant owners” (quote).
Context
As Finbalance wrote, 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), which granted the claim of former top managers of the bankrupt Delta Bank and dismissed the Fund’s claim against them for damages in the amount of 19,83 billion UAH.
Among the defendants in that case are, inter alia, the former chair of Delta Bank’s supervisory board, its former majority shareholder Mykola Lahun, as well as former members of the board and supervisory board of the financial institution (Olena Popova, Vitalii Masiura, Figlus Marcin, Yaroslav Porokhniak, etc.).
The Fund motivated its claim by arguing that Delta Bank’s management in 2012–2015 years engaged in “economically unjustified risky activity involving active lending operations to corporate borrowers with excessive concentration, without proper collateral, and also in the interests of the bank’s significant owners, which indicates the scheme-like (artificial) nature of such operations, the sole purpose of which was to cover previously issued loans, as well as further withdrawal of funds through nonresident banks, which was not aimed at generating profit” (quote).
The courts of first instance and appeal concluded that jointly hearing the claims brought by the Fund “would impede clarification of the mutual rights and obligations of the parties and would significantly complicate resolution of the dispute, since in this case, during the proceedings, the court would have to evaluate the terms of each executed loan agreement, establish the circumstances of compliance with, performance/non-performance of the parties’ obligations under these agreements, the purposes and circumstances of their conclusion, as well as the correctness of the amounts claimed for recovery” (quote).
The Supreme Court also decided that “the plaintiff violated the rules for joining claims” (quote).
Previously, the Deposit Guarantee Fund estimated possible creditor losses of Delta Bank “as a result of bringing it to bankruptcy” (quote) at at least 24,5 billion UAH.
The Fund stated that the market value of Delta Bank’s assets was determined by independent appraisers at 27,4 billion UAH, or 30% of the amount “on paper” as of 01.01.2017 (94,27 billion UAH).
Depositors of Delta Bank were paid compensation within the guarantee amount totaling 15,9 billion UAH (97% of planned payments).
According to the NBU, Delta Bank’s refinancing debt as of early December-2019 amounted to 4,9 billion UAH.
About other FGVD claims against M. Lahun - here, about the claim of Ukreximbank - here, of Oschadbank - here.
Reference
25.05.2021 The Grand Chamber of the Supreme Court satisfied the Deposit Guarantee Fund’s claim against the managers of the bankrupt bank “Ukoopspilka” (in case No.910/11027/18) and ruled to jointly recover 77 million UAH from the defendants in favor of the plaintiff.
The Fund noted that “this is the first final court decision in this category of cases, which should form case law, and will also resume consideration of another 36 similar cases for recovery of damages by related persons concerning other banks.”
“The Deposit Guarantee Fund has initiated 64 similar cases against 774 defendants (shareholders and related persons of insolvent banks) totaling more than 97,2 billion UAH, 36 of which were stayed pending the Grand Chamber of the Supreme Court’s review of the Ukoopspilka case,” the Fund stated.
27.01.2021 The Supreme Court opened cassation proceedings on the Deposit Guarantee Fund’s cassation appeal against the Commercial Court of Kyiv’s ruling dated 14.09.2020 and the Northern Commercial Court of Appeal’s decision dated 08.12.2020 (in case No.910/12955/20), which returned the Fund’s claim against former board members and the supervisory board of Platinum Bank for recovery of 1,48 billion UAH (among the defendants is, inter alia, former acting bank CEO Kateryna Rozhkova, who now serves as first deputy head of the NBU).
26.02.2021 The Supreme Court stayed consideration of that case pending the Grand Chamber’s review of case No.910/11027/18 (the aforementioned Deposit Guarantee Fund’s claim against former managers of Ukoopspilka for recovery of 76,9 million UAH of damages).
18.05.2021 The Northern Commercial Court of Appeal refused to grant the Deposit Guarantee Fund’s appeal and left unchanged the Commercial Court of Kyiv’s decision dated 01.02.2021 (in case No.910/9851/20), which denied the Fund’s claim against the former managers of Trust Bank for recovery of damages in the amount of 395 million UAH, which, according to the Fund, were caused by the “improper performance by the defendants of their employment duties” — conducting “risky activities contrary to the interests of Trust Bank and its creditors” (quote).
04.03.2021 The Northern Commercial Court of Appeal refused to grant the Deposit Guarantee Fund’s appeal and left unchanged the Commercial Court of Kyiv’s decision dated 24.09.2020 (in case No.910/12930/18), which denied the Fund’s claim against former board members, the supervisory board, and the credit committee of Daniel Bank for recovery of 1,13 billion UAH.
11.01.2021 The Northern Commercial Court of Appeal refused to grant the Deposit Guarantee Fund’s appeal and left unchanged the Commercial Court of Kyiv’s ruling dated 14.08.2020 in case No.903/515/20, which returned the claim against 9 individuals for recovery of 123,3 million UAH in damages, which, the Fund believes, were caused to “Zakhidinkombank.”
10.06.2020 The Northern Commercial Court of Appeal refused to grant the Deposit Guarantee Fund’s appeal and left unchanged the Commercial Court of Kyiv’s decision 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 for recovery of 764 million UAH in damages, which, according to the Fund, were caused by a shortage of the bank’s assets to cover creditor claims and by the defendants’ wrongful actions.
19.02.2020 The Northern Commercial Court of Appeal refused to grant the Deposit Guarantee Fund’s appeal against the Commercial Court of Kyiv’s decision dated 13.03.2019 (in case No.910/12803/18), which denied the Fund’s claim against former officials of Tavrika Bank for joint recovery of 2,68 billion UAH in damages.
24.10.2019 The Kharkiv Regional Commercial Court refused to satisfy the Deposit Guarantee Fund’s claim against former top managers of Zoloti Vorota Bank for joint recovery of 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 grant the Deposit Guarantee Fund’s appeal and left unchanged the Commercial Court of Kyiv’s decision dated 28.02.2019 (in case No.910/11371/18), which denied the Fund’s claim against former officials of Legbank for recovery of 412,2 million UAH in damages.
25.07.2019 The Supreme Court, in case No.916/2733/18, returned the Deposit Guarantee Fund’s claim against former beneficiaries and top managers of Imexbank for recovery of 18,98 billion UAH in damages (quote).
08.04.2019 The Supreme Court, in case No.910/16336/18, returned the Fund’s claim against some former shareholders and top managers of Nadra Bank for recovery of 10 billion UAH in damages.
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 for recovery of 1,99 billion UAH in “damages caused to the bank by related persons” (quote). The cassation court remitted 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 the spring of 2018 the Pechersky District Court of Kyiv refused to grant the Fund’s claims. Later the Kyiv Court of Appeal annulled that ruling, citing improper venue. The appellate court’s decision was left unchanged by the Supreme Court in September-2019.
25.07.2019 The Supreme Court refused to satisfy the cassation appeal of former CEO and shareholder of Kyivska Rus Bank Viktor Bratko and left unchanged the Northern Commercial Court of Appeal’s decision dated 21.02.2019, which transferred case No.910/15469/18 (the Deposit Guarantee Fund’s claim against V. Bratko and other bank officials for recovery of 1,67 billion UAH) to the Commercial Court of Kyiv for consideration.
finbalance
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