Foreclosure on a current account in the RCC. Foreclosure on the funds of the management organization and the homeowners association

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A lawyer in a lawsuit develops a position by analyzing and examining all the circumstances of the case. The lawyer evaluates the totality of evidence that the opposing party uses as the basis for his position; the lawyer has the right to independently collect evidence in the case, although only the court has the right to add evidence to the case at the request of the lawyer.

Of particular importance in the trial is the final speech of the lawyer in the debate between the parties after the end of the proceedings on the merits. The debate consists of speeches by the parties to the case, the debate provides an analysis of the evidence in the case referred to by the parties, and at the end conclusions are drawn on the essence of the case.

For the convenience of residents of apartment buildings, management companies accept funds from them into their bank accounts in order to pay various utility bills: for water supply and sewerage, solid waste removal, elevator equipment repair services, etc. Management companies then transfer this amount to service providers.

The MIFTS of Russia No. 15 for the Altai Territory reminds that since January 1, 2010, it has been in effect that residents of a building acquire the status of a payer, the management company - the status of a paying agent, and organizations in the housing and communal services sector - the status of a service provider.

“The activity of the payment agent is only to accept funds, it does not take part in the provision of services between the payer and the service provider and does not provide other independent services other than the receipt and transfer of funds,” said the head of the operational control department of the inspection. Vladimir Yamshchikov.

When accepting payments, the paying agent is obliged to use a special bank account (accounts) to make payments, and also to hand over to the credit institution the cash received from payers when accepting payments for crediting in full to its special bank account (accounts).

“As practice shows, a number of management companies do not comply with these requirements: funds are transferred to regular current accounts. This year, employees of the Interdistrict Inspectorate of the Federal Tax Service of Russia No. 15 in the Altai Territory conducted 15 inspections of organizations - payment agents; in all inspections, facts were established that payments from individuals (consumers of services) were credited to the regular settlement account of management companies, which is an administrative offense,” said Vladimir Alekseevich.

The Code of Administrative Offenses of the Russian Federation provides for liability for this violation in the form of a fine, the amount of which for legal entities ranges from 40 thousand to 50 thousand rubles, and for managers - from 4 thousand to 5 thousand rubles.

Based on the results of consideration of cases by administrative commissions, penalties totaling 660 thousand rubles were imposed on all violating organizations, as well as their leaders. The decisions made to impose administrative liability were challenged in the courts. When considering cases in court, the position of the tax authority was supported, the complaints were left unsatisfied.

In order to comply with Federal legislation and prevent its violations, we remind managers of companies engaged in accepting payments from individuals of the need to open a special bank account with credit institutions for crediting received funds.

Federal Arbitration Court of the West Siberian District composed of:

presiding Trilya A.V.,

judges Dubinina T.N.,

Klat E.V.,

when recording the court session using audio recording devices, I considered in court the cassation appeal of the limited liability company Management Company "SOYUZ" against the decision of the Seventh Arbitration Court of Appeal dated February 18, 2014 (judges: Zhdanova L.I., Afanasyeva E.V., Kudryasheva E. .V.) in case No. A45-12779/2013.

A representative of the open joint-stock company Sberbank of Russia, V.A. Deinege, took part in the meeting. by power of attorney No. 01-81 dated November 23, 2012.

The court found:

limited liability company Management Company "Soyuz" (630054, Novosibirsk, Plakhotnogo str., 23, OGRN 1095404011207, INN 5404390972, hereinafter - the company) filed a claim with the Arbitration Court of the Novosibirsk Region against the open joint-stock company "Sberbank of Russia" (117997 , Moscow, Vavilova St., 19, OGRN 1027700132195, INN 7707083893, hereinafter referred to as the bank) for the recovery of RUB 3,851,738.03.

In support of the stated demands, the plaintiff referred to the fact that the bank illegally wrote off from the company's current account funds allocated for major repairs of apartment buildings as part of the implementation of Federal Law of July 21, 2007 N 185-FZ "On the Fund for Assistance to the Reform of Housing and Communal Services" .

By the decision of the Arbitration Court of the Novosibirsk Region dated November 20, 2013 (judge S.G. Zyuzin), the claim was satisfied.

In satisfying the stated requirements, the court proceeded from the fact that the plaintiff did not have ownership rights to the funds transferred to his current account in accordance with agreement No. 235 dated June 08, 2012 as part of the financing of major repairs of an apartment building; therefore, the disputed funds could not be written off by the bank to repay the company's debt to third parties.

By the decision of the Seventh Arbitration Court of Appeal dated February 18, 2014, the decision of the first instance court was canceled and the company’s claims were denied.

The court came to the conclusion that the bank’s actions to write off the disputed amount from the company’s account were legal.

Having disagreed with the adopted judicial act, the company filed a cassation appeal, in which it asked to cancel the decision and leave the court decision in force.

The applicant of the complaint refers to the fact that, according to the additional agreement to the bank account agreement, the funds have a designated purpose (major repairs) and cannot be transferred to third parties, or written off to pay off the plaintiff’s debt for other obligations. According to the plaintiff, by virtue of the agreement concluded by the parties and the current legislation, foreclosure on funds located in a special bank account and not being the property of the debtor is illegal.

The bank finds the resolution legal and justified.

Having considered the arguments of the cassation appeal, the cassation instance considers that the complaint cannot be satisfied.

As follows from the case materials, a bank account agreement No. 4892/0304 dated June 10, 2010 was concluded between the bank and the company (client), under the terms of which the bank opened account No. 40702810344050002195 for the company and undertook to provide settlement and cash services to the client. At the same time, the parties signed an additional agreement that from the date of crediting funds to the client’s account in accordance with the Federal Law “On the Fund for Assistance to the Reform of Housing and Communal Services” and until the date of their debiting from the account in full, debit transactions on the account are carried out in the order determined by the said additional agreement.

Agreement No. 235 was concluded between the mayor's office of the city of Novosibirsk and the society on June 08, 2012 to provide a subsidy for the overhaul of an apartment building, included in the targeted program of the Novosibirsk region for the overhaul of apartment buildings for 2012.

Payment orders N N 427, 428, 434 dated July 10, 2012 transferred funds in the total amount of 5,356,259 rubles to the plaintiff’s bank account from the budget of the city of Novosibirsk.

The bank, executing the order of the bailiff to foreclose on the funds of the debtor - the company within the framework of the enforcement proceedings initiated against the latter on the writ of execution of the arbitration court, collection orders N 2221227 dated 09.12.2012, N 814597 dated 09.13.2012, payment order N 289660 dated 10/04/2012, debited funds from the company’s current account in the total amount of RUB 3,851,748.03.

Considering the bank's actions to write off targeted funds from an account opened for major repairs as illegal, the company filed a claim with the arbitration court.

By virtue of paragraph 1 of part 3 of Article 68 of the Federal Law of October 2, 2007 N 229-FZ “On Enforcement Proceedings” (hereinafter referred to as the Law on Enforcement Proceedings), one of the enforcement measures is the foreclosure of the debtor’s property, including money and securities.

According to Part 2 of Article 69 of the Law on Enforcement Proceedings, foreclosure on the debtor’s property, including funds in rubles and foreign currency, is applied in the amount of the debt, that is, in the amount necessary to fulfill the requirements contained in the executive document, taking into account the collection of expenses on the performance of enforcement actions, enforcement fees and fines imposed by the bailiff in the process of executing the enforcement document.

Part 3 of Article 70 of the Law on Enforcement Proceedings stipulates that if funds are available in several accounts of the debtor, then the bailiff in the resolution indicates from which account and in what amount the funds should be written off.

In accordance with Articles 854 and 856 of the Civil Code of the Russian Federation, funds are written off from the account by the bank on the basis of the client’s order. Without the client's order, debiting funds on the account is permitted by a court decision, as well as in cases established by law or provided for by an agreement between the bank and the client.

Thus, a necessary condition for holding the bank accountable for improper performance of transactions on the account in the case under consideration is the fact of unjustified debiting of funds from the client’s account.

Part 8 of Article 70 of the Law on Enforcement Proceedings stipulates that a bank or other credit organization may fail to execute the executive document in full if there are no funds in the debtor’s accounts or if the funds in these accounts are seized or when in order , established by law, transactions with funds are suspended.

The Law on Enforcement Proceedings does not contain restrictions on foreclosure on the debtor’s funds of a targeted nature.

The plaintiff did not provide evidence confirming the existence of the circumstances provided for in Part 8 of Article 70 of the Law on Enforcement Proceedings.

Taking into account the above, the court of appeal came to a reasonable conclusion about the legality of the bank’s actions to write off the disputed amount from the company’s account in pursuance of the writ of execution of the arbitration court when foreclosure on the debtor’s funds within the framework of the initiated enforcement proceedings.

The argument that the funds, in the applicant’s opinion, could not be written off as part of the execution of enforcement actions, since they had a strictly intended purpose, is untenable. By virtue of Article 152 of the Budget Code of the Russian Federation, recipients of budget funds act as participants in the budget process. Therefore, according to Article 220.1 of the said Code, accounting for budget execution operations carried out by participants in the budget process within the framework of their budgetary powers is carried out on personal accounts opened in accordance with the provisions of the Code in the Federal Treasury or the financial authority of a constituent entity of the Russian Federation.

In this case, we are talking about funds placed in an account opened in a commercial bank (Sberbank of Russia), and the transfer of budget funds for the intended purpose cannot be regarded as a circumstance limiting the right of the bailiff to carry out actions against the debtor to collect debt from his account opened in a commercial bank, in the manner prescribed by the legislation on enforcement proceedings. Accordingly, the same responsibilities are assigned to the bank servicing the debtor for the execution of executive documents of the arbitration court

The contested resolution corresponds to the legal position set out in the resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated July 6, 2010 N 2106/10.

Taking into account these circumstances, the cassation court does not see any violations of the law that could be grounds for canceling the decision.

Due to the fact that the applicant was granted a deferment in the payment of the state duty until the consideration of the cassation appeal, 2,000 rubles are subject to recovery from the company as federal budget revenue. state duty.

Guided by paragraph 1 of part 1 of Article 287, Article 289 of the Arbitration Procedural Code of the Russian Federation, the Federal Arbitration Court of the West Siberian District

decided:

the decision of the Seventh Arbitration Court of Appeal dated February 18, 2014 in case No. A45-12779/2013 is left unchanged, the cassation appeal is not satisfied.

To recover 2,000 rubles from the limited liability company Management Company "SOYUZ" to the federal budget. state duty.

The decision comes into force from the day of its adoption.

Document overview

A subsidy for the overhaul of an apartment building was transferred to the management company’s bank account from the city budget as part of a targeted regional program.

Enforcement proceedings were initiated against the management company. During this, the bank, executing the bailiff’s order, wrote off funds from the specified account.

The company, considering the bank's actions illegal, filed a claim against it to recover the written-off amount.

The district court agreed with the appellate court, which rejected the company's claim.

In accordance with the Law on Enforcement Proceedings, a bank may not fully execute a writ of execution if there are no funds in the debtor’s accounts. Or in the case when the funds located in these accounts are seized. Or when transactions with funds are suspended in accordance with the procedure established by law. The company did not provide evidence confirming the existence of such circumstances. At the same time, the law does not contain restrictions on foreclosure on the debtor’s funds of a targeted nature.

The argument that the funds could not be written off as part of the execution of enforcement actions, since they had a strictly intended purpose, is untenable. By virtue of the Budget Code of the Russian Federation, recipients of budget funds are participants in the budget process. Therefore, accounting for budget execution operations carried out by participants in the budget process within the framework of their budgetary powers is carried out on personal accounts opened with the Federal Treasury or the financial authority of a constituent entity of the Russian Federation (municipal entity).

In the disputed case, we are talking about funds placed in an account with a commercial bank. And the transfer of budget funds for the intended purpose cannot be regarded as a circumstance limiting the right of the bailiff to carry out actions against the debtor to collect debt from his account opened in a commercial bank. Accordingly, the same responsibilities are assigned to the bank servicing the debtor for the execution of court enforcement documents.

Often, the funds actually collected from management organizations and homeowners' associations are not so easy to obtain, since it can take a long time to hide money from creditors using agents.

The payment system for housing and communal services actively uses the model of information and settlement centers (ISC), unified settlement centers (SPC), and cash settlement centers (RCC). The essence of this system is that payments for housing and communal services are calculated by third-party organizations that are not related to management organizations (MA) and HOAs, but on the basis of the information provided by them, in connection with which the question is: how to recover money from management companies, becomes significantly more complicated.

As a rule, the algorithm for the work of the IRC and MA is based on an agency agreement. In accordance with paragraph 1 of Art. 1005 of the Civil Code of the Russian Federation, under an agency agreement, one party (agent) undertakes, for a fee, to perform legal and other actions on behalf of the other party (principal) on its own behalf, but at the expense of the principal or on behalf and at the expense of the principal. The principal is obliged to pay the agent a fee. Its amount and payment procedure are established in the agency agreement.

The agent accrues and collects funds. He then transfers them either to the MA or to the providers of housing and communal services. Payments for supplied utility resources are also split according to this scheme: incoming funds, bypassing the settlement accounts of the management company, go directly to resource-supplying organizations. But not everyone uses such a scheme. Many HOAs and management organizations prefer to maintain a staff of employees whose responsibilities include calculating and issuing receipts for payment of housing and communal services.

The system of settlement centers provides another advantage for HOAs and management organizations - the ability to “hide” money from creditors on more or less legal grounds. In an agency agreement, the principal can issue instructions that are binding on the agent. Such instructions make it possible to provide the possibility of transferring funds to the accounts of other companies directly. In this case, we are talking not only and not so much about payments for utilities, but about funds received under the heading “maintenance and repairs”.

The withdrawal scheme is quite simple:

• a legal entity or individual entrepreneur, a contractor, is created that provides the HOA or management organization with the necessary services and performs work on the maintenance and ongoing repairs of common property in an apartment building;
• on the basis of a letter of authorization, all funds received from the population for housing services are transferred from the agent’s account to the contractor’s account, bypassing the current account of the management organization and, accordingly, the imposition of a penalty on them by the creditor.

It is worth mentioning right away that with great desire, economic opportunities and political will, in this scheme you can find elements of various crimes, liability for which is provided for by the Criminal Code of the Russian Federation. But this is not always easy to do. This is confirmed by its use by many management organizations and homeowners associations. It is quite difficult to block settlements of management organizations and homeowners associations at the RPI level. And this could have far-reaching consequences for creditors.

Example

LLC "Unified Settlement Center-Dubna" appealed to the Arbitration Court of the Moscow Region to the Federal Bailiff Service to collect debt from the management company in the amount of 40.833 million rubles.

To participate in the case as third parties who do not make independent claims regarding the subject of the dispute, legal entities were involved that claimed or could claim the specified amount of money after its collection by the bailiff service: LLC Russian-Finnish company Ecosystem, OJSC PTO GH", OJSC "Energia-Tensor", LLC "Ecotech", LLC "Housing and communal management No. 2", LLC "Housing and communal management - Dubna".

It is worth mentioning right away that LLC “ERC-Dubna” was created during the “housing and communal wars” in Dubna and is a structure affiliated with the owner of three large management organizations of the city. The arrest of cash flows at the RPI level was precisely the result of political will - a reaction to the fact that money from the population to pay for utilities stopped flowing to resource supply companies.

Even earlier, ERC-Dubna LLC applied to the Arbitration Court of the Moscow Region with a statement to the bailiff of the Dubna GOSP UFSSP of Russia for the Moscow Region to declare illegal and cancel the decisions to foreclose on the debtor’s funds held in a bank or other credit organization. Based on this resolution, funds were written off for a total amount of more than 40 million rubles.

During enforcement proceedings, bailiffs identified agency agreements concluded by debtors LLC Housing and Communal Management No. 2, LLC Housing and Communal Management - Dubna and LLC ERC-Dubna. In accordance with these agreements, the agent of ERC-Dubna LLC acts as a representative of the principal. The agent performs on behalf of the principals LLC "ZhKU No. 2" and LLC "ZhKU - Dubna" or on its own behalf, but always at the expense of the principal, actual and legal actions in order to carry out the functions and tasks that form the subject of agreements on the organization of accrual and payment by citizens for housing utilities, namely fees:

• for the maintenance and repair of common property for tenants and owners of residential premises in apartment buildings, which are under the maintenance and management of the principal;
• major repairs of the common property of the same houses for owners of residential premises;
• utilities - heating, cold and hot water supply, sanitation, as well as other payments in accordance with the internal documents of the principal.

By the contested decisions, the bailiffs seized the bank accounts of the agent of ERC-Dubna LLC and wrote off funds from the accounts, i.e., they foreclosed on the debtor’s property held by a third party in the absence of a judicial act. By doing this, the bailiffs violated Part 1 of Art. 77 of the Federal Law of October 2, 2007 No. 229-FZ “On Enforcement Proceedings” (hereinafter referred to as the Law on Enforcement Proceedings).

The bailiff referred to the fact that Part 1 of Art. 77 of the Law on Enforcement Proceedings does not apply in the event of foreclosure on funds held in accounts, deposits or custody in banks and other credit institutions. The court did not accept this argument. Reason: this exception applies to funds held in accounts opened with banks and other credit institutions, i.e., with third parties, by the debtor himself. In the case under consideration, the accounts were opened not by the debtors of LLC ZhKU No. 2 and LLC ZHKU - Dubna, but by LLC ERC-Dubna - a third party within the meaning of Art. 77 of the Law on Enforcement Proceedings.

Guided by these considerations, the court declared the decisions of the bailiffs to be completely illegal (see the decision of the Arbitration Court of the Moscow District dated July 24, 2015 in case No. A41-74942/2014).

The decision made became the basis for filing a claim in the amount of 40.833 million rubles. Considering the case, the court noted that when making decisions, the bailiffs did not take into account that foreclosure on the debtor’s property held by third parties is carried out only on the basis of a judicial act. Judicial procedure guarantees protection not only of the parties, but also of persons who have the debtor’s property. The bailiff did not follow the specified procedure. As a result, the interests of third parties were violated:

• owners of premises in apartment buildings, whose funds are accumulated in the account of ERC-Dubna LLC for further transfer to resource supplying organizations for utilities and other services;
• other persons and other management organizations also crediting funds to this account.

Therefore, the impugned resolutions are illegal.

The court concluded that the defendant must compensate the plaintiff for losses incurred in the stated amount. This will allow the plaintiff to restore his business activities in order to fulfill his obligations to other participants in economic relations.

From the Russian Federation, represented by the Federal Bailiff Service, funds in the amount of 40,833,064 rubles were recovered from the treasury of the Russian Federation in favor of ERC-Dubna LLC. 52 kopecks (see the decision of the Arbitration Court of the Moscow Region dated October 7, 2015 in case No. A41-35607/2015).

• Assessing different payment methods for utilities

The case under consideration is interesting precisely because the money of the management company was seized by the bailiffs and written off from the account of a third party solely by the willful decision of the bailiffs. They did not wait not only for the court decision to foreclose on funds held by a third party, but also for the results of the appeal of the decisions they made.

How effective is the mechanism for foreclosure on funds held by third parties in relation to the situation under consideration with the participation of the IRC and management organizations? The courts often side with the HOA and the management company, not allowing them to block settlements at the RPI level.

Example 1

The Arbitration Court of the Murmansk Region partially satisfied the claim: 16.938 million rubles were recovered from the HOA in favor of the enterprise. debt, the rest of the claim was denied. A writ of execution was issued, on the basis of which enforcement proceedings were initiated. The debtor did not fulfill the requirements in full. The bailiff appealed to the court with a statement: to foreclose on 30% of the funds to be transferred to the debtor LLC "Unified Settlement Center" in accordance with the agency agreement and the agreement on acceptance of payments, minus 1% of the remuneration from the amount of payments to be transferred to the resource supply organizations, within the debt - 14,940 million rubles. Funds must be transferred to the deposit account of the bailiffs department.

The courts of appeal and cassation came to the conclusion that funds accumulated in a separate settlement account of the URC at the expense of the population, intended for transfer to resource supply and service organizations, cannot be recognized as the property of the debtor (HOA), for which, in accordance with Art. 77 of the Law on Enforcement Proceedings, a penalty may be imposed. They are not the debtor’s funds and have a specific purpose: payment for housing and communal services provided by resource supply organizations, housing management services, payment of remuneration to the Unified Center under an agency agreement and an agreement on accepting payments.

No evidence of the presence of funds belonging to the debtor at the SRC was provided (see the ruling of the Supreme Court of the Russian Federation dated October 27, 2015 No. 307-ES15-13032 in case No. A42-5404/2012).

Example 2

The company appealed to the arbitration court with a statement: to foreclose in the amount of 3.491 million rubles. on the debtor’s property held by third parties, namely:

• for the funds of the HOA located in the current account of the State Unitary Enterprise “Computer Center for Collective Use of the Diversified Housing Complex”;
• for funds received after the adoption of a judicial act from the population living in houses managed by the HOA.

The courts of the first and appellate instances came to the conclusion that the funds received by the IRC on the basis of the agreement have a specific purpose - payment for utilities, maintenance and repair of the common property of apartment buildings. Foreclosing on these funds will lead to a violation of the rights and legitimate interests of the population who conscientiously fulfill their obligations to pay for housing and communal services. The courts rejected the application. The Court of Cassation supported their decisions (see the decision of the Arbitration Court of the North-Western District dated March 10, 2015 No. F07-9617/2013 in case No. A56-55814/2012).

Similar conclusions are contained in other judicial acts (see, for example, decisions of the Federal Antimonopoly Service of the North-Western District dated 09.24.2013 in case No. A42-8505/2012, of the North Caucasus District dated 07.26.2013 in case No. A53-30115/2012, Far Eastern District dated December 9, 2013 No. F03-5741/2013 in case No. A04-4881/2011).

But the exact opposite approach also occurs.

• Non-payments in housing and communal services and 5 ways to increase debt collection

Example 3

The bailiff of the Pervomaisky district department of bailiffs of the Federal Bailiff Service of Russia for the Penza Region appealed to the Arbitration Court of the Penza Region with a statement: to foreclose on the funds of the Yuzhanka Homeowners Association, arriving at the settlement account of Regional Information Center LLC, on the basis of Art. 77 of the Law on Enforcement Proceedings.

Refusing the applicant, the courts of first and appellate instances considered that payments received from the population for housing and utility services are not the property of the HOA, since they do not relate to the sources from which the defendant’s funds are generated.

However, according to Art. 151 of the Housing Code of the Russian Federation, the following property may be owned by the HOA:

• movable;
• real estate located inside or outside an apartment building.

The funds of the partnership are:

• obligatory payments;
• entrance and other fees of members of the partnership;
• income from the economic activities of the partnership aimed at achieving its goals, objectives and obligations;
• subsidies for ensuring the operation of common property in an apartment building, carrying out current and major repairs, providing certain types of utilities and other subsidies;
• other supply.

By virtue of Part 5 of Art. 155 of the Housing Code of the Russian Federation, members of the homeowners’ association make mandatory payments and (or) contributions related to the payment of expenses for the maintenance, current and major repairs of common property in an apartment building and utilities, in the manner established by the management bodies of the HOA.

Thus, the law directly classifies payment for housing and utilities as mandatory payments, which constitute the funds of the partnership.

The court canceled the judicial acts and decided to satisfy the stated requirements (see the decision of the Federal Antimonopoly Service of the Volga District dated March 4, 2010 in case No. A49-43/08).

• Can a management company increase housing maintenance rates unilaterally?

Example 4

The bailiff asked to foreclose on the debtor's funds coming to the bank account of a third party - the company "RKTs" Finance Technologies "". The court of first instance refused the applicant. Reasons:

• there is no evidence in the case materials that the funds held by a third party belong to the debtor;
• funds have a designated purpose.

At the same time, the court indicated that the collection of funds received from the population in the interests of one of the energy supply organizations affects the interests of the population as a consumer and may entail socially significant negative consequences: non-transfer of funds collected from the population to other energy supply organizations; lack of funds to eliminate accidents and carry out major repairs.

The Court of Appeal overturned the ruling of the court of first instance and partially satisfied the bailiff's statement: the collection can be applied to the debtor's funds held by a third party, within the limits of the actual debt under the writs of execution to the collectors. The court indicated that the conclusion of the court of first instance that the disputed funds belonged to the population did not comply with the Rules for the provision of public services to citizens, approved. Decree of the Government of the Russian Federation dated May 23, 2006 No. 307. The management organization is the provider of utility services, i.e., the person providing utility services, and not the consumer’s representative in relations with suppliers of utility resources (see Decree of the Federal Antimonopoly Service of the Ural District dated December 23, 2013 No. F09 -13364/13 in case No. A50-22039/2012).

A similar position was taken by the courts in other judicial acts (see decisions of the Federal Antimonopoly Service of the Ural District dated 10/02/2013 No. F09-8297/13 in case No. A71-1897/2010, Central District dated 06/06/2014 in case No. A14-18679/2009 and other judicial acts).

Thus, the judicial authorities have not developed a unified position on the category of cases under consideration. In this regard, there is scope for both judicial discretion and law enforcement creativity.

You can register limited liability companies and change agents quite often. Therefore, it seems more reasonable to block settlements at the RPI level. Otherwise, unscrupulous debtors may structure their relationship with the agent in such a way that creditors will not see their money at all.

However, the position of the Supreme Court of the Russian Federation, set out in the refusal ruling, gives reason to doubt the widespread practice of foreclosure of debt on the funds of HOAs and management companies in the settlement accounts of the IRC. This means that it will be possible to hide money from creditors, while observing reasonable caution, for quite a long time.

"Housing and communal services: accounting and taxation", 2010, N 5
FORECLOSURE ON THE MANAGER'S FUNDS
ORGANIZATIONS AND HOA
The Federal Arbitration Court of the North Caucasus District, in its Resolution dated March 12, 2010 in case No. A53-1956/2009, made a very interesting conclusion: the funds received by the management organization from the owners of premises to pay for utilities have a designated purpose; foreclosure on funds received from the population in the interests of one of the energy supply companies affects the interests of the population as a consumer and may have socially significant negative consequences. Consequently, satisfying the claimant’s demands at the expense of these funds will lead to a significant violation of the interests of third parties. Let’s try to figure out to what extent this conclusion is justified and complies with current legislation.
Without exaggeration, it can be argued that the conclusion of the FAS North Caucasus Region is a “balm for the soul” both for management organizations and for homeowners’ associations. In the Resolution of the Federal Antimonopoly Service of North Kazakhstan, perhaps for the first time, the role of the management organization in resource supply relations is reduced to the intermediary function of transferring funds from consumers to resource supply companies. In addition, the court came to the defense of third parties who were not parties to the dispute under consideration (energy supplying enterprises and owners of premises in apartment buildings who faithfully fulfill their obligations).
However, it is not possible to agree with the court’s opinion due to the current rules of law. Let us justify this conclusion.
Management organizations and homeowners' associations are providers of utility services (clause 3 of the Rules for the provision of utility services). The law imposes on them the obligation to enter into agreements with RSO (clause “c”, paragraph 49 of the Rules for the provision of public utility services). These contracts are concluded on behalf and at the expense of the utility service provider himself. Resource supplying enterprises make demands on their counterparty - the utility service provider, and these requirements must be satisfied by transferring funds available in the account of the utility service provider.
According to paragraph 7 of Art. 155 of the Housing Code of the Russian Federation, owners of premises in an apartment building, which is managed by a management organization, pay a fee for residential premises and utilities to this organization. In accordance with paragraphs. 1 item 2 art. 151 of the Housing Code of the Russian Federation, the funds of the HOA consist, among other things, of obligatory payments, entrance and other contributions of members of the partnership.
It is obvious that the above rules diverge from the position of the arbitrators set out in the Resolution of the Federal Arbitration Court of the North Caucasus Region dated March 12, 2010 in case No. A53-1956/2009. Payments from owners deposited into the current account or cash register of the management organization (HOA) are at its full disposal and are not protected from foreclosure on them for the debts of the management organization (HOA). It seems that this is precisely the conclusion that corresponds to the current legislation.
The management of an apartment building, carried out by a management organization, partnership, or other company, is broader than performing the functions of an intermediary between the owners of premises in the building and the RSO (contractors). Hence the high risks and responsibility of managers.
In practice, there are cases when management organizations enter into agreements with RSOs on behalf and at the expense of the owners of premises in the house. Payments from citizens go directly to the accounts of the RSO, and the management organization receives remuneration under the agency agreement. Such a scheme contradicts current legislation, since it cannot be attributed to any of the three methods of managing an apartment building.
We continue to insist that if the owners of the premises in the house have chosen a management organization or HOA to manage the house, then the latter are liable to the RSO to the extent of all funds in their accounts, regardless of the intended purpose of the funds. Most arbitrators share this position (see, for example, Resolutions of the FAS North Caucasus of 04/09/2009 in case No. A63-2216/2008-C3-13, FAS PO of 03/04/2010 in case No. A49-43/08, Determination of the FAS Central District dated 04.12.2009 N F10-3426/09).
Thus, by the Resolution of 04.03.2010 in case No. A49-43/08, the FAS PO recognized the legality of imposing a penalty on the funds of the HOA received into the bank account of the information and settlement center (agent) from the owners of the premises. In support of its position, the court referred to Art. 151, paragraph 5 of Art. 155 of the Housing Code of the Russian Federation and indicated that the law directly classifies payment for housing and utilities as mandatory payments, which constitute the funds of the partnership. And Federal Law No. 229-FZ of October 2, 2007 “On Enforcement Proceedings” allows for foreclosure on the debtor’s property held by third parties (Article 77).
At the same time, funds received from citizens to the account of the cash settlement center, which are obligatory payments to the HOA or payment for the services of the management organization, cease to be the property of the partnership and organization as soon as they are transferred to the contractor’s bank account (in payment for work performed for the HOA or management organization) . In other words, it is unacceptable to foreclose on funds that constitute the income of a third party (Resolution of the Federal Antimonopoly Service UO dated July 8, 2009 N F09-4599/09-C2).
In conclusion, we note that management organizations and homeowners' associations should not attach decisive importance to the opinion of the arbitrators set out in the Resolution of the FAS North Caucasus of March 12, 2010 in case No. A53-1956/2009. As stated earlier, their conclusion is not supported by the provisions of the current legislation, which has supreme force.
G.Yu. Sharikova
Legal Advisor
NP "Nizhny Novgorod Homeowners Association"
Signed for seal
10.05.2010