Search for debtor property in bankruptcy

[Андрей Захаров]

In the practical activities of a private detective, there are various orders, including orders related to the search for various property, mainly vehicles belonging to a bankrupt debtor. Basically, as practice on similar matters shows, lenders are “looking for” heavy construction equipment, trucks, trailers, self-propelled equipment (tractors, excavators, etc.).
The need to search for such property arises when the arbitration manager appointed to conduct bankruptcy proceedings begins to take actions to foreclose property belonging to the bankrupt enterprise. The thing is that you can only enforce property that is at the disposal of the arbitration manager, so to speak, in kind. And quite often it happens that there is property on the “paper”, and its actual location is not known, because the former head of the bankrupt enterprise “shelters” him from the arbitration manager for various reasons, avoiding transferring the property to the manager for foreclosure in order to satisfy the claims of creditors.
If the creditors are various banks or enterprises with their own security services, they themselves, together with the bailiff service, take certain measures to search for the property of the bankrupt enterprise. However, in the case when creditors do not have such security services, or if the Security Council is unable to solve the problem of finding property, it is advisable for creditors or an arbitration manager to seek assistance from a licensed private investigator who has the right, in accordance with the law, to carry out activities to search for this property on the basis of a civil contract concluded either with a creditor or with an arbitration manager.
It should immediately be noted that when searching for exactly such property there is a certain specificity associated with several circumstances.
One of such circumstances is the fact that in most cases the equipment “hidden” from the arbitration manager continues to be operated on the basis of lease (sublease) agreements for this equipment drawn up by an unscrupulous debtor. True, its exploitation usually occurs not in the region where the debtor is located, but in other regions. Sometimes, but very rarely, equipment is dismantled for parts, which certainly greatly complicates its search. But this article is not about search methods that deserve a separate article, but about the procedure for a private investigator to conclude an agreement on the search for such equipment.
In the case of contacting a private detective with a question about finding technology, the latter, in his own practice and the practice of colleagues, takes the following actions as part of pre-contractual preparation:
Claims from a creditor or arbitration manager:
- copies of documents for the vehicle to be searched, as well as its description (photo is possible)
- power of attorney to represent the interests of the arbitration manager in communication with third parties, state authorities, court bailiffs, etc. .. This power of attorney is necessary for the recovery of various documents when searching for property.
- duly certified copies of court decisions regarding the imposition of various encumbrances on the property sought
-contact data for communication with creditors, arbitration manager, FSSP employees involved in the search for property.
-other information or documents based on a specific order.
After receiving the necessary information about the desired property, a private investigator, as part of the pre-contractual preparation, assesses the possible costs of the search, based on the complexity of the order. Based on the results of this assessment, the price of the contract is determined, which can be concluded with a private detective to search for property. As practice shows, the price of the contract can be formed in two parts — the advance part paid by the customer to the private detective to pay the costs of finding the property (possible travel expenses, payment of paid information resources, etc.), as well as the premium part paid to the executor — private detective in the event that he finds the required property and transfers it to the customer. The premium part is usually formed based on their percentage of the value of the property sought and can be from 5 to 10% of the estimated value of the property, which was searched by a private detective. In order to alleviate the tax burden for a private investigator, when executing such orders, it is advisable for a private investigator who is an individual entrepreneur in accordance with the Law to use the patent taxation system (since this is possible for a licensed private investigator).
When drawing up a contract for the provision of services for the search for property in the contract, it is advisable to indicate without fail the moment of fulfillment of the terms of the contract for the search by a private detective.
As the practice of communicating with potential customers of such a service has shown, the latter require the detective not only to find property (vehicles), i.e. indicate its location and the actual user, but also ensure its withdrawal from the actual user and put the vehicle in a secure parking lot, providing access to it for representatives of the customer.
However, these conditions may actually not be fulfilled by a private detective, due to the fact that the property sought may be in the formal legal use of a particular person who has received the right to use it in accordance with various lease (sublease) agreements, which can only be appealed the owner of the property in court and claimed from someone else's use, ownership only by the owner, which is not a private detective, in accordance with Art. 301,302 of the Civil Code of the Russian Federation.
Based on these circumstances, it is expedient to reflect directly in the service agreement that the property search order is deemed fulfilled if the customer indicates the location of the vehicle in question, providing the latter with information about the actual user of the property and drawing up the relevant acceptance certificate for the services with the appendix to him a report on the work done and the results, to which may be attached documents provided by the actual user of the property (if any), photographs, etc.
Of course, this article does not cover all the problems that may arise when searching for property of debtors. However, it is thought that it will be useful to both practicing private detectives and potential customers of our services, who need to know how things are going, or an order can be placed to search for property.
In addition, this methodology for the preparation of contracts is applicable to the search for vehicles purchased for leasing, as well as pledged by banks.

Sincerely, Private Detective Zakharov Andrey Valerievich (Saransk, Republic of Mordovia)

 

[Патрушев Михаил Владимирович]

Thanks for the interesting material and work, Andrey Valerievich!