The legislation of the Republic of Kazakhstan stipulates that all stated claims of creditors to the debtor must be formed into a single register. However, there are frequent cases when creditors, due to their ignorance, miss the established deadlines for sending their claim, or do not know to whom to send their claim.
What is a creditors' claims register?
The definition of the register of creditors' claims is fixed in subparagraph 20 of Article 1 of the Law of the Republic of Kazakhstan "On Rehabilitation and Bankruptcy . The register of creditors' claims is understood as a list of creditors' claims to the debtor indicating their size, grounds and date of occurrence, formed in the rehabilitation or bankruptcy procedures.
Thus, the register of creditors' claims is a consolidated document that reflects all information and data on the debtor's debts to all creditors.
Who forms the register of creditors' claims?
In accordance with paragraph 1 of Article 90 of the Law "On Rehabilitation and Bankruptcy", the temporary manager, within 2 working days from the date of the court's determination on his appointment, sends to the authorized body an announcement of the initiation of bankruptcy proceedings and the procedure for filing claims by creditors in the Kazakh and Russian languages for posting on the Internet resource of the authorized body.
According to paragraph 1 of Article 91 of the Law "On Rehabilitation and Bankruptcy", the temporary manager is obliged, no later than 3 working days from the date of the court decision to declare the debtor bankrupt, to send to the authorized body a register of creditors' claims for posting on the Internet resource of the authorized body.
In accordance with subparagraph 31 of Article 1 of the Law "On Rehabilitation and Bankruptcy", a temporary manager is understood to be a person appointed by the court to collect information about the financial condition of the debtor, as well as to conduct the bankruptcy procedure until the appointment of a bankruptcy manager.
Thus, the register of creditors' claims is formed by a temporary manager, who is appointed by a ruling of the court considering the bankruptcy case.
For what purposes is the register of creditors' claims formed?
The main purpose of forming the register of creditors' claims, formulated in the Law "On Rehabilitation and Bankruptcy", as well as the Resolution of the Government of the Republic of Kazakhstan "On Approval of Forms, Rules and Terms for Formation of the Register of Creditors' Claims , is: satisfying the claims of creditors and ensuring their interests.
Within what time frame can creditors’ claims be included in the register?
According to paragraph 21 of the Government Resolution "On approval of forms, rules and terms for the formation of the register of creditors' claims", creditors' claims against the debtor must be declared in writing in any form no later than one month from the date of publication of the notice on the procedure for declaring claims by creditors with the mandatory indication of information on the amount of the claim (separately on the amount of the principal debt, remuneration (interest), penalties and other fines, damages) and sent to the address specified in the announcement.
Thus, from the moment of publication of the announcement on the Internet resource of the authorized body (the Department of Rehabilitation and Bankruptcy of the Department of State Revenue of the relevant region), the creditor has a month to send his claim to the temporary manager.
The creditor's claim must be accompanied by copies of documents confirming the basis and amount of the claim (court decisions that have entered into legal force, copies of contracts, recognition of debt by the debtor), with the simultaneous presentation of the original documents for verification.
Within what time period must creditors' claims be considered?
In accordance with paragraph 5 of Article 90 of the Law "On Rehabilitation and Bankruptcy", creditors' claims filed within the established period must be considered by the temporary manager within 10 working days from the date of their receipt.
According to paragraph 1 of Article 91 of the Law "On Rehabilitation and Bankruptcy", the temporary manager is obliged to notify each creditor in writing on the day following the day the debtor is declared bankrupt of the results of consideration of creditors' claims (on recognition or non-recognition of the claim in full or in part, indicating the reasons for non-recognition). For creditors' claims filed after the debtor is declared bankrupt, the temporary manager is obliged to notify such creditor in writing on the day following the day the decision is made.
Thus, the stated claim of the creditor must be considered by the temporary manager within 10 working days from the date of receipt of such claim.
What claims are included in the register of creditors' claims?
Clause 7 of Article 90 of the Law "On Rehabilitation and Bankruptcy" stipulates that creditors have the right to present claims to the debtor, including: the amount of the debt and the remuneration (interest) due on this amount, damages caused by the failure to fulfill or improper fulfillment of the obligation by the debtor, penalties (fines, fines) and other penalties.
According to paragraph 8 of Article 90 of the Law "On Rehabilitation and Bankruptcy", the amount of remuneration (interest) is determined at the time the court makes a decision to declare the debtor bankrupt. The amount of damages, penalties (fines, fines) and other fines is determined at the time the decision is made to declare the debtor bankrupt and liquidate it.
Also, paragraph 3 of Article 90 of the Law "On Rehabilitation and Bankruptcy" establishes that creditors' claims expressed in foreign currency are taken into account in tenge at the rate established by the National Bank of the Republic of Kazakhstan at the time the court makes a decision to declare the debtor bankrupt and liquidate it with the initiation of bankruptcy proceedings.
What claims are not included in the register of creditors' claims?
The Law "On Rehabilitation and Bankruptcy" establishes restrictions on the claims included in the register of creditors' claims. According to paragraph 6 of Article 90 of the Law "On Rehabilitation and Bankruptcy", the following claims are not included in the register of creditors' claims:
- Claims of creditors defined by the legislation of the Republic of Kazakhstan on project financing and securitization, secured by allocated assets, and claims of holders of mortgage bonds, secured by a pledge of the following property: rights of claim under mortgage housing loan agreements (including the pledge of mortgage certificates), as well as government securities of the Republic of Kazakhstan in cases where the right of ownership of the said bonds arose with their holders or was transferred to them under transactions or other grounds stipulated by legislative acts of the Republic of Kazakhstan.
- Claims of creditors on infrastructure bonds secured by a government guarantee.
- Requirements of the founders (participants) of the debtor.
Also, the register of creditors' claims cannot include creditors' expenses related to their participation in the bankruptcy procedure. Such expenses are not subject to reimbursement.
In accordance with paragraph 23 of the Government Resolution "On approval of forms, rules and terms for the formation of the register of creditors' claims", the formation of the register on the basis of the breakdown of accounts payable to the debtor's balance sheet is not permitted.
Thus, the temporary manager has every reason to refuse to include the above-mentioned creditor’s claims in the register, since this is directly stipulated by law.
What happens to claims made after the deadline for filing them has expired?
According to paragraph 4 of Article 90 of the Law "On Rehabilitation and Bankruptcy", a creditor's claim filed later than the one-month period is included in the register of creditors' claims, but such creditor is deprived of the right to vote at the meeting of creditors until the full satisfaction of the creditors' claims filed within the one-month period.
In this case, the inclusion of such a creditor in the register is carried out on general grounds, presented to the form and content of the claim and documents confirming the debt.
Thus, a creditor who has submitted his claim after the expiration of the one-month period is not deprived of the opportunity to be included in the register of creditors' claims, but is deprived of the right to vote at meetings of the creditors' committee until such time as the settlement with these creditors has been made.