Practice

Challenging transactions in bankruptcy

Recovering assets withdrawn by the debtor before bankruptcy, in the creditors’ interests, or defending a transaction if you are the one being challenged.

Service

What the service includes

Shortly before bankruptcy, debtors often strip assets through below-value transactions with affiliated persons. The law gives creditors a tool to challenge such transactions and return the property to the bankruptcy estate. But a good-faith party to a transaction is equally entitled to protection when a challenge is brought without justification.

We represent creditors in challenging a debtor’s suspicious transactions, and we defend good-faith counterparties where a transaction is challenged without sufficient grounds.

The key difficulty in such disputes is to prove not only the transaction itself but also that the other party knew, or should have known, of the debtor’s financial difficulties. We examine open registers, correspondence and the history of the parties’ dealings, and where necessary engage valuers to determine the market price retrospectively as at the date of the transaction.

What the service includes:

Challenging asset-stripping transactions Challenging undervalued transactions Defending a good-faith counterparty Returning property to the bankruptcy estate Analysing transactions within the suspect period
Clients

Who it is for

The situations clients most often bring to us on this topic.

Creditors who have discovered asset stripping by the debtor before bankruptcy Buyers of property whose transaction is being challenged by the bankruptcy trustee Relatives and partners of the debtor whose transactions have come under scrutiny Companies that received payment from a counterparty shortly before its bankruptcy
Service

How we work

A fixed fee and a clear plan of action, agreed before work begins. The timeframes below are indicative and depend on the complexity of the case.

I

Transaction analysis

We review the debtor’s transactions over the suspect period (usually one to three years before bankruptcy). Timeframe: 3-7 days.

II

Proving the grounds

We gather evidence of affiliation between the parties, or of a price below market value. Timeframe: 1-2 weeks.

III

Court challenge

We file the application to challenge the transaction within the bankruptcy case. Timeframe: 3-9 months.

IV

Return of property

We see the case through to the actual return of the asset to the bankruptcy estate, or recovery of its value. Timeframe: 1-3 months.

Documents

What you will need at the start

We confirm the exact list for your situation at the consultation. This is a guide so that you arrive at the first meeting prepared.

Contract for the challenged transaction Payment documents for the transaction Information on the market price at the time of the transaction Data on affiliation of the parties (if any)
Practice

Key figures

Experience in this practice area specifically, not in practice as a whole.

55+ transactions challenged or defended Number of disputes over challenging transactions in bankruptcy handled by the team for both sides.
3 years suspect period for transactions The period before the bankruptcy application was accepted during which transactions are examined for harm to creditors.
40% of transactions challenged as undervalued Share of cases where the key evidence was the deviation of the transaction price from an independent valuation.
7 months average duration of a challenge dispute From filing the application to challenge the transaction until the court ruling takes effect.
14 retrospective market price valuations Cases where an independent valuer was engaged to prove undervaluation or overvaluation.
30% of applications dismissed in favour of the purchaser Share of cases where we proved the transaction was paid for and at market value, and preserved its validity.
Practice

Common mistakes

Cash settlements without supporting documents. The parties settle in cash with no bank transfer or receipts, and later cannot document that the transaction was genuine and at a fair price, which makes it much easier to challenge.

Buying without checking the seller’s financial position. The buyer does not check whether the seller shows signs of insolvency, has litigation, or whether the property has changed hands frequently. They learn of the seller’s future bankruptcy only after the transaction, when it is harder to defend.

A below-market price in the contract with no valuation. The parties state a price below market for the sake of savings or convenience without commissioning an independent valuation. Such a gap from market comparables becomes the first and heaviest argument for declaring the transaction invalid.

Result

What you get

A court ruling on the transaction. A ruling declaring the transaction invalid or refusing the challenge, depending on which side the team represents.

Return of property to the bankruptcy estate. The asset or its value actually enters the bankruptcy estate for settlement with creditors.

A preserved transaction for a good-faith purchaser. Title to the acquired property is confirmed by the court and protected against further claims.

A valuer’s opinion on market price. A document that can be used as evidence in this or related disputes over undervaluation or overvaluation.

FAQ

Frequently asked questions

What period can a debtor’s transactions be challenged for?+

As a rule, from one to three years before the bankruptcy application was accepted, depending on the grounds for challenge.

What if I bought property in good faith from a future bankrupt?+

The purchaser’s good faith is a weighty defence argument, especially where the transaction was concluded at market price and involves no affiliation.

Can a transaction be challenged if a court approved it earlier?+

A challenge in bankruptcy proceedings is a separate ground, independent of earlier court rulings on the same transaction, where there are signs of asset stripping.

Who can file an application to challenge a transaction?+

The bankruptcy trustee, and also a creditor whose claims entered in the register are of sufficient size.

After what period can a transaction no longer be challenged?+

Formally, the three years before the bankruptcy application was filed are examined, but in chains of related transactions courts often look at earlier operations too if they see a single asset-stripping scheme.

Can a good-faith buyer who did not know of the seller’s future bankruptcy be affected?+

Yes. Good faith alone does not guarantee protection; it has to be proved with documents: due diligence on the counterparty, a bank transfer and an independent valuation as at the date of the transaction.