The Supreme Court decided when the debtor's property rights could be foreclosed. The Supreme Court decided when it is possible to foreclose on the property rights of the debtor

• 1. For the debts of a professional participant in the securities market, the funds of its clients held on a separate bank account (accounts) opened by a professional participant in the securities market in a credit institution (hereinafter referred to as a special account of a professional participant in the securities market) in in accordance with the Federal Law of April 22, 1996 No. 39-FZ "On the Securities Market" (hereinafter - the Federal Law "On the Securities Market"),
• 2. The debts of a professional participant in the securities market cannot be levied on the securities of its clients held on personal accounts in the registry system and depo accounts in depositories opened by a professional participant in the securities market in accordance with the Federal Law “On the Securities Market (hereinafter - personal accounts and depo accounts).
• 3. For the debts of the management company of a unit investment fund, no money and (or) securities of the person who submitted an application for the acquisition of investment units, kept on a separate bank account and (or) depo account of the management company of the unit investment fund, until the payment in the register of holders of investment units, an entry on the acquisition of investment units.

Comment_

In Art. 73, a rule is fixed, according to which in enforcement proceedings one should distinguish between the property of a professional participant in the securities market and his clients. At the same time, a ban was established to foreclose on cash and securities of clients of a professional participant in the securities market.

The signs of professional participants in the securities market are defined in Art. 2-10.2 of Federal Law No. 39. An analysis of these norms shows that professional participants in the securities market have the funds of their clients. By virtue of this, Federal Law No. 229 stipulates the means that allow the bailiff to distinguish between the property of professional participants in the securities market and their clients. The first such facility is named in part 1 - a special account of a professional participant in the securities market, on which the funds of its clients are accumulated. Note that the norm refers to special accounts of a professional participant in the securities market, which are opened in accordance with Federal Law No. 39. An analysis of its norms shows two such accounts. The first is a special brokerage account (clause 3, article 3). The second is a special depositary account. It contains the funds received in the event that the depositor is provided with services related to the receipt of income from securities and other payments due to the holders of securities. The depository is obliged to keep a record of the money resources of each depositor located in a special depositary account (accounts) and report to the front. No collection may be levied on the funds on the said accounts for the debts of a professional participant in the securities market.

A similar prohibition is established in respect of securities of clients of a professional participant in the securities market that are on personal accounts in the registry system and depo accounts in depositories opened by a professional participant in the securities market in accordance with Federal Law No. 39 (part 2 of article 73).

Part 3 of the commented article regulates the specifics of foreclosure on the debts of the management company of a unit investment fund. According to the Federal Law of November 29, 2001 No. 156-FZ “On Investment Funds”, a mutual investment fund is a separate property complex consisting of property transferred to trust management of a management company by the founder (founders) of trust management with the condition that this property be combined with the property of other founders of trust management , and from the property received in the process of such management, the share in the ownership of which is certified by a security issued by the management company. A mutual investment fund is not a legal entity.

The terms of the agreement on trust management of a unit investment fund are determined by the management company in standard forms and can be accepted by the founder of trust management only by joining the said agreement as a whole. Accession to the contract of trust management of a unit investment fund is carried out by acquiring investment units of a unit investment fund issued by the management company that carries out trust management of this unit investment fund.

Only monetary funds can be transferred to trust management of open and interval mutual investment funds. In trust management of a closed-end unit investment fund, monetary funds, as well as other property provided for by the investment declaration contained in the rules for trust management of this unit investment fund, may be transferred, if the possibility of transferring such property is established by regulatory legal acts of the federal executive body for the securities market.

Funds transferred in payment for investment units of one unit investment fund must be transferred to a separate bank account opened by the management company of this fund on the basis of an agreement concluded without indicating that the management company acts as a trustee (transit account). The funds in the transit account cannot be levied on the debts of the management company. Property transferred in payment for investment shares, including those held in a transit account (transit depo account), cannot be levied for the debts of the management company or for the debts of a specialized depository.

The property constituting a unit investment fund shall be separated from the property of the management company of this fund, the property of investment unit holders, the property constituting other unit investment funds held in trust by this management company, as well as other property held in trust or for other reasons by specified management company. The property constituting a unit investment fund is accounted for by the management company on a separate balance sheet, and independent accounting is maintained for it.

For settlements on transactions related to trust management of a unit investment fund, a separate bank account (accounts) is opened, and for accounting of rights to securities constituting a unit investment fund, a separate depo account (accounts) is opened.

Enforcement of the debts of investment unit holders, including in the event of their insolvency (bankruptcy), on property constituting a unit investment fund is not allowed. For the debts of investment unit holders, the collection is levied on the investment units they own.

Debts on obligations arising in connection with the trust management of property constituting a unit investment fund shall be repaid at the expense of this property. In case of insufficiency of the property constituting the unit investment fund, the recovery may be directed only to the own property of the management company.

Federal Arbitration Court of the North Caucasian District Decree of March 12, 2010 No. A53-1956 / 2009 made a very interesting conclusion: the funds received by the managing organization from the owners of the premises in payment 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, the satisfaction of the claims of the claimant at the expense of these funds will lead to a significant violation of the interests of third parties. Let's try to figure out how this conclusion is justified and consistent with the current legislation.

Without exaggeration, it can be argued that the conclusion of the FAS SKO is a "balm for the soul" for both managing organizations and homeowners' associations. In the Decree of the FAS SKR, perhaps for the first time, the role of the managing organization in resource supply relations is reduced to an intermediary function in transferring funds from consumers to resource supply companies. In addition, the court came to the defense of third parties who are not parties to the dispute under consideration (energy supply companies and owners of premises in apartment buildings that fulfill their obligations in good faith).

Nevertheless, it is not possible to agree with the opinion of the court due to the existing rules of law. Let's substantiate this conclusion.

Management organizations and HOAs are executors of public services ( clause 3 of the Rules for the provision of public services). The law imposes on them the obligation to conclude agreements with the North Ossetia (paragraphs "c" clause 49 of the Rules for the provision of public services). These contracts are concluded on behalf of and at the expense of the contractor himself. Resource-supplying enterprises make demands on their counterparty - the provider of public services, and these requirements must be satisfied by transferring funds available on the account of the utility service provider.

According to paragraph 7 of Art. 155 ZhK RF owners of premises in an apartment building managed by a managing organization pay a fee for the premises and utilities of this organization. In accordance with pp. 1 p. 2 art. 151 ZhK RF HOA funds consist, among other things, of mandatory payments, entrance and other contributions of members of the partnership.
It is obvious that the above norms diverge from the position of the arbitrators set out in. Owner payments made to the settlement account or cash desk of the managing organization (HOA) are at its full disposal and are not protected from foreclosure on the debts of the managing organization (HOA). It seems that such a conclusion is consistent with the current legislation.

The management of an apartment building, carried out by a managing organization, a partnership, or another company, is wider than acting as an intermediary between the owners of the premises in the house and the RSO (contractors). Hence the high risks and responsibility of managers.

In practice, there are cases when managing organizations enter into agreements with the RSO on behalf and at the expense of the owners of premises in the house. Citizens' payments go directly to the accounts of the RNO, and the managing organization receives remuneration under the agency agreement. Such a scheme is contrary to current legislation, since it cannot be attributed to any of the three ways to manage an apartment building.

We continue to insist that if the owners of the premises in the house have chosen a managing organization or HOA to manage the house, then the latter are liable to the RSO within the limits of all the funds in their accounts, regardless of the purpose of the funds. Most arbitrators share this position (see, for example, Decrees of the FAS SKO dated 04/09/2009 No. A63-2216 / 2008-S3-13, FAS PO dated 03/04/2010 No. A49-43 / 08, Definition of the FAS CO dated 04.12.2009 No. F10-3426 / 09).

So, Decree of 04.03.2010 No. А49-43/08 FAS PO recognized as legitimate the imposition of a penalty on the funds of the HOA received by 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 ZhK RF and pointed out that the law directly relates the payment of housing and communal services to the mandatory payments that constitute the funds of the partnership. BUT Federal Law No. 229-FZ dated 02.10.2007"On Enforcement Proceedings" allows foreclosure on the debtor's property held by third parties (Article 77).

At the same time, the 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 managing organization, cease to be the property of the partnership and the organization as soon as they are transferred to the contractor's settlement account (in payment for the work performed for the HOA or the managing organization) . In other words, it is unacceptable to foreclose on funds that make up the income of a third party ( Decree of the FAS UO dated 07/08/2009 No. Ф09-4599 / 09-С2).

In conclusion, we note that managing organizations and HOAs should not attach decisive importance to the opinion of the arbitrators set forth in Decree of the FAS SKO dated March 12, 2010 No. A53-1956 / 2009. As stated earlier, their conclusion is not supported by the norms of the current legislation, which has the highest force.

G. Sharikova, lawyer of NP "Nizhny Novgorod association of HOA"

"Housing and communal services: accounting and taxation", 2010, N 5
FOREWORDING THE FUNDS OF THE MANAGER
ORGANIZATIONS AND HOA
The Federal Arbitration Court of the North Caucasus District, in its Resolution dated March 12, 2010 in case N A53-1956 / 2009, made a very interesting conclusion: the funds received by the managing organization from the owners of the premises in payment for utilities have a special 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, the satisfaction of the claims of the claimant at the expense of these funds will lead to a significant violation of the interests of third parties. Let's try to figure out how this conclusion is justified and consistent with the current legislation.
It can be said without exaggeration that the conclusion of the FAS SKO is a "balm for the soul" both for managing organizations and for homeowners' associations. In the Decree of the FAS SKR, perhaps for the first time, the role of the managing organization in resource supply relations is reduced to an intermediary function in transferring funds from consumers to resource supply companies. In addition, the court came to the defense of third parties who are not parties to the dispute under consideration (energy supply companies and owners of premises in apartment buildings that fulfill their obligations in good faith).
Nevertheless, it is not possible to agree with the opinion of the court due to the existing rules of law. Let's substantiate this conclusion.
Managing organizations and HOAs are executors of public services (clause 3 of the Rules for the provision of public services). The law imposes on them the obligation to conclude contracts with the RSO (clause "c" clause 49 of the Rules for the provision of public services). These contracts are concluded on behalf of and at the expense of the contractor himself. Resource-supplying enterprises make demands on their counterparty - the provider of public services, and these requirements must be satisfied by transferring funds available on 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 managed by a managing organization pay a fee for housing and utilities of this organization. In accordance with paragraphs. 1 p. 2 art. 151 of the Housing Code of the Russian Federation, the funds of the HOA consist, among other things, of mandatory payments, entrance and other contributions from members of the partnership.
It is obvious that the above norms diverge from the position of the arbitrators set out in the Decree of the FAS SKO dated March 12, 2010 in case N A53-1956 / 2009. Owner payments made to the settlement account or cash desk of the managing organization (HOA) are at its full disposal and are not protected from foreclosure on the debts of the managing organization (HOA). It seems that such a conclusion is consistent with the current legislation.
The management of an apartment building, carried out by a managing organization, a partnership, or another company, is wider than acting as an intermediary between the owners of the premises in the house and the RSO (contractors). Hence the high risks and responsibility of managers.
In practice, there are cases when managing organizations enter into agreements with the RSO on behalf and at the expense of the owners of premises in the house. Citizens' payments go directly to the accounts of the RNO, and the managing organization receives remuneration under the agency agreement. Such a scheme is contrary to current legislation, since it cannot be attributed to any of the three ways to manage an apartment building.
We continue to insist that if the owners of the premises in the house have chosen a managing organization or HOA to manage the house, then the latter are liable to the RSO within the limits of all the funds in their accounts, regardless of the purpose of the funds. The majority of arbitrators share this position (see, for example, the Resolution of the FAS SKO dated 04/09/2009 in case N A63-2216 / 2008-C3-13, FAS PO dated 03/04/2010 in case N A49-43 / 08, Determination of the FAS CO dated 04.12.2009 N F10-3426/09).
Thus, by Resolution dated 04.03.2010 in case N A49-43 / 08, the FAS PO recognized as lawful the imposition of a penalty on the funds of the HOA received by 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 relates the payment of housing and communal services to the mandatory payments that constitute the funds of the partnership. And the Federal Law of October 2, 2007 N 229-FZ "On Enforcement Proceedings" allows foreclosure on the debtor's property held by third parties (Article 77).
At the same time, the 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 managing organization, cease to be the property of the partnership and the organization as soon as they are transferred to the contractor's settlement account (in payment for the work performed for the HOA or the managing organization) . In other words, it is unacceptable to foreclose on funds that make up the income of a third party (Resolution of the FAS UO dated 07/08/2009 N F09-4599 / 09-C2).
In conclusion, we note that managing organizations and HOAs should not attach decisive importance to the opinion of the arbitrators set out in the Decree of the FAS SKO dated March 12, 2010 in case N A53-1956 / 2009. As stated earlier, their conclusion is not supported by the norms of the current legislation, which has the highest force.
G.Yu.Sharikova
legal adviser
NP "Nizhny Novgorod association of HOA"
Signed for print
10.05.2010

The management company (MC) owes the heat supplier more than 20 million rubles. The bailiff levied execution on the right of the Criminal Code to receive money from the settlement centers, which they collect from residents for the maintenance of apartment buildings and housing and communal services. The company challenged the actions of the FSSP employee in court, stating that he infringed not only on her interests, but also on utility providers with whom she needs to pay, as well as tenants who make payments in good faith. The first instance sided with the bailiff, the other two - supported UC. The case eventually reached the Supreme Court.

The UFSSP Department for the Sverdlovsk Region, on the basis of three writ of execution issued by the Arbitration Court of the Sverdlovsk Region, initiated proceedings to recover from Pioneer Management Company a debt in the amount of 23.2 million rubles. in favor of MUP "Ekaterinburgenergo". The bailiff levied execution on the debtor's right to receive payments from the settlement centers "ERC - Financial Logistics" and "ERC", with which the Criminal Code entered into an agency agreement. They were ordered to transfer 100% of the amounts payable to the debtor to the deposit account of the UFSSP department (later the bailiff reduced the amount of deductions to 80%).

The management company challenged the actions of the bailiff in the Arbitration Court of the Sverdlovsk Region (case No. A60-16325/2016), but the arbitration found them lawful. The court pointed out that the bailiff only forfeited the funds to be transferred from the accounts of "ERC - Financial Logistics" and "ERC" to the account of the Criminal Code, and not on all the money they collected from the population. The appeal disagreed with those findings. The 17th AAC noted that the funds collected by the settlement centers for the UK have a special purpose - they go to pay for the management of apartment buildings, the maintenance of common house property and the provision of utilities to residents. Foreclosure on this money deprives the management company of the opportunity to fulfill its obligations for the maintenance of houses, to pay off with suppliers of electricity, water and heat supply. This can lead to a violation of the interests of residents who in good faith pay for overhaul and "communal", pointed out the 17th AAS and satisfied the claim of the Criminal Code. The Arbitration Court of the Urals District upheld the decision of the appeal.

Then the bailiff and MUP "Ekaterinburgenergo" filed complaints with the Supreme Court. They referred to the fact that the conclusions of the appeal and cassation regarding the targeted nature of the funds collected from residents by paying agents are erroneous. This money is transferred by agents to the bank account of the Criminal Code, and in the future it can spend it at its own discretion. It is impossible to establish the goals for which they are going, the applicants emphasize. At the same time, the debtor does not fulfill its obligations to counterparties: the recoverers in the consolidated enforcement proceedings, in addition to MUE Ekaterinburgenergo, are a number of resource and energy supply organizations, to fulfill obligations to which Pioneer Management Company collects money from the population. Judge Marina Pronina decided that these arguments deserve attention, and referred the cassation appeals to the Economic Collegium for consideration.

At the meeting on August 2, the representative of the Criminal Code emphasized that the company has now repaid the 23-million debt to MUE "Ekaterinburgenergo" on three writ of execution issued by the AS of the Sverdlovsk region. This circumstance was confirmed by the appeal and cassation, which sided with the Criminal Code, the lawyer added. However, since the enforcement proceedings against the Criminal Code are consolidated (debts are collected from the company in favor of other counterparties), it was not stopped. "The decision to foreclose on the debtor's property right was issued in connection with these three writ of execution," the judge clarified with the representative of the FSSP

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

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

“The activity of the paying agent consists only in accepting funds, he does not take part in the provision of services between the payer and the service provider and does not provide other independent services, except for the receipt and transfer of funds,” said the head of the operational control department of the inspection Vladimir Yamschikov.

When accepting payments, the paying agent is obliged to use a special bank account (accounts) for making settlements, as well as to hand over to the credit institution the cash received from payers when accepting payments for crediting in full to his special bank account (accounts).

“As practice shows, a number of management companies do not comply with these requirements: funds are transferred to ordinary settlement accounts. This year, employees of the Interdistrict IFTS of Russia No. 15 for 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 usual 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 the consideration of cases by administrative commissions, fines were imposed on all violating organizations, as well as their leaders, in the total amount of 660 thousand rubles. The issued decisions on bringing to administrative responsibility were challenged in the courts. On consideration of cases in court hearings, the position of the tax authority was supported, complaints were left without satisfaction.

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