Selling a Subsidiary Liability Claim: Choices for a Bankruptcy Creditor

Bankruptcy sales concern a claim against a person held subsidiarily liable, rather than a sale of the director’s “liability” itself. For a creditor, sale is one of three options under Article 61.17 of Federal Law No. 127-FZ: collection within the bankruptcy procedure, sale of the claim or assignment of the creditor’s own portion. The choice affects collection and participation in sale decisions, but does not itself mean that money has been received.

Three ways to deal with the claim

Article 61.17 governs disposition of a claim against a controlling person. It does not replace determination of the liability grounds and amount, covered in the main subsidiary liability guide. This article concerns an ordinary company. Paragraph 7 contains an exception for property developers, while certain financial organisations are subject to special rules.

Other creditors’ consent is not required for the individual assignment option, as paragraph 49 of Supreme Court Plenum Resolution No. 53 explains. Nevertheless, a selection notice is neither execution of the court order nor a payment. The law links transfer of the portion to the court order substituting the judgment creditor.

Deadlines: which event starts the clock?

Article 61.17(1) provides for a notice inviting creditors to choose following the relevant court act. Under the ordinary route, it is published within five business days. The creditor’s clock starts with the published notice, rather than a telephone call or the day they happen to inspect the case. Paragraph 46 of Plenum Resolution No. 53 expressly ties the periods to publication in the Unified Federal Register of Bankruptcy Information, EFRSB.

• 10 business days from publication: the paragraph 2 period for sending the selection notice.
• After 20 business days from publication: the report on creditors’ choices is prepared and submitted to the court.
• If no notice has been received by the paragraph 3 reporting point: the creditor is deemed to have selected sale of the claim.

Do not treat the twenty-day reporting point as advice to submit later than the statutory ten-day selection period. Preserve proof of sending and receipt, and check the report. Paragraph 47 of Plenum Resolution No. 53 also allows a special route where all creditors have made their choices in advance without a later notice. Read the court orders and report rather than mechanically waiting for another publication.

Following the statutory appeal stage, the court formalises substitution for the selected portions and issues an enforcement instrument in the bankruptcy debtor’s name for the remainder. Reconcile the documents: the total liability, individual portion, priority and remaining amount should agree.

How sale of the remaining portion is chosen

After separating portions assigned to individual creditors, the remaining amount is dealt with by comparing the aggregate claims of creditors choosing collection within the procedure and those choosing sale. If the collection group has the larger total, collection applies. Otherwise, a meeting is convened to approve sale terms. The comparison concerns claim amounts, rather than the number of notices or people.

Article 61.17(5) and paragraphs 48–49 of Plenum Resolution No. 53 exclude votes of creditors connected with the debtor or controlling person from the relevant choice and approval of sale terms. Creditors choosing assignment of their own portions do not vote on sale of the remaining portion. Check the participating creditors and calculation where the outcome is disputed. The general process is covered in challenging a creditor meeting decision.

Article 140 refers to the sale rules and requires contractual provision for payment no later than thirty business days after the contract, with transfer of the claim only after full payment. Winning the auction is not the same as acquiring the claim. Ordinary sale of a debtor’s receivable is covered separately; the special Article 61.17 choice precedes sale of the relevant liability claim.

If the declining-price public offer produces no sale

Article 61.17(6.1)–(6.2) provides another opportunity to choose. Within ten business days after unsuccessful sale proceedings by public offer end, a notice of the right to change the choice is published. Each creditor in whose interests the claim had been offered may, within ten business days of that notice, select assignment of its own portion.

After twenty business days from the second notice, a new report is prepared. The court then substitutes creditors who changed their choices for the relevant portions and issues their enforcement instruments. This is not an automatic transfer on the auction closing date, nor a general right to reverse a completed sale whenever a creditor wishes.

For a repeat selection, retain the notice, public-offer results, evidence of the initial choice and an exact unpaid balance. Identify what remained unsold and in whose interests it had been marketed. A bare statement that an auction failed does not establish all the statutory conditions.

Creditor documents and avoiding double recovery

1. Obtain the ruling establishing liability and its amount, or the separate relevant court acts.
2. Check your established claim, its priority, payments and eligibility to choose.
3. Find the EFRSB notice, calculate the business-day deadline and submit one selected option in writing.
4. Reconcile the report, substitution order and the amount and priority in the enforcement instrument.
5. For sale, inspect the terms, lot composition and result; following an unsuccessful public offer, inspect the repeat notice.
6. Record receipts from the debtor, controlling person and other obligated persons against connected claims without overstating the balance.

Selection-notice framework: “In case No. [reference], [creditor]’s claim was established by act [date] in the amount [components, balance, priority]. In response to EFRSB notice No. [reference, date], I select Article 61.17(2), subparagraph [1/2/3]: [specific option]. Please record this choice in the report. Attached: [claim evidence, calculation, authority].” For a repeat selection, identify the paragraph 6.1 notice and the previous option as well. Adapt the wording to the documents and procedural stage.

Article 61.17(6) distinguishes transfer from satisfaction. Transfer alone does not reduce the claim against the debtor and other obligated persons; actual satisfaction reduces it by the corresponding amount. The example does not determine distribution priority or permit double recovery. Buying a claim at auction is a different situation: its purchase price and acquired scope must not be mechanically substituted into this individual-assignment model.

Article 61.18 provides for consolidated enforcement of portions of the claim and the special priority recorded in the enforcement instruments. Obtaining your portion does not allow bypassing other judgment creditors. The general documents for a change of party are explained in procedural succession; Article 61.17 supplies the specific ground here.

Frequently asked questions