Fourteenth Arbitration Court of Appeal. The Supreme Court decided when it is possible to foreclose on the property rights of the debtor. Foreclosure on a special account of the management company

"Housing and communal services: accounting and taxation", 2010, N 5
FORECLOSURE ON THE MANAGER'S FUNDS
ORGANIZATIONS AND HOA
The Federal Arbitration Court of the North Caucasus District, in its Resolution dated March 12, 2010 in case No. A53-1956/2009, made a very interesting conclusion: the funds received by the management organization from the owners of premises to pay 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, satisfying the claimant’s demands at the expense of these funds will lead to a significant violation of the interests of third parties. Let’s try to figure out to what extent this conclusion is justified and complies with current legislation.
Without exaggeration, it can be argued that the conclusion of the FAS North Caucasus Region is a “balm for the soul” both for management organizations and for homeowners’ associations. In the Resolution of the Federal Antimonopoly Service of North Kazakhstan, perhaps for the first time, the role of the management organization in resource supply relations is reduced to the intermediary function of transferring funds from consumers to resource supply companies. In addition, the court came to the defense of third parties who were not parties to the dispute under consideration (energy supplying enterprises and owners of premises in apartment buildings who faithfully fulfill their obligations).
However, it is not possible to agree with the court’s opinion due to the current rules of law. Let us justify this conclusion.
Management organizations and homeowners' associations are providers of utility services (clause 3 of the Rules for the provision of utility services). The law imposes on them the obligation to enter into agreements with RSO (clause “c”, paragraph 49 of the Rules for the provision of public utility services). These contracts are concluded on behalf and at the expense of the utility service provider himself. Resource supplying enterprises make demands on their counterparty - the utility service provider, and these requirements must be satisfied by transferring funds available in 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, which is managed by a management organization, pay a fee for residential premises and utilities to this organization. In accordance with paragraphs. 1 item 2 art. 151 of the Housing Code of the Russian Federation, the funds of the HOA consist, among other things, of obligatory payments, entrance and other contributions of members of the partnership.
It is obvious that the above rules diverge from the position of the arbitrators set out in the Resolution of the Federal Arbitration Court of the North Caucasus Region dated March 12, 2010 in case No. A53-1956/2009. Payments from owners deposited into the current account or cash register of the management organization (HOA) are at its full disposal and are not protected from foreclosure on them for the debts of the management organization (HOA). It seems that this is precisely the conclusion that corresponds to the current legislation.
The management of an apartment building, carried out by a management organization, partnership, or other company, is broader than performing the functions of an intermediary between the owners of premises in the building and the RSO (contractors). Hence the high risks and responsibility of managers.
In practice, there are cases when management organizations enter into agreements with RSOs on behalf and at the expense of the owners of premises in the house. Payments from citizens go directly to the accounts of the RSO, and the management organization receives remuneration under the agency agreement. Such a scheme contradicts current legislation, since it cannot be attributed to any of the three methods of managing an apartment building.
We continue to insist that if the owners of the premises in the house have chosen a management organization or HOA to manage the house, then the latter are liable to the RSO to the extent of all funds in their accounts, regardless of the intended purpose of the funds. Most arbitrators share this position (see, for example, Resolutions of the FAS North Caucasus of 04/09/2009 in case No. A63-2216/2008-C3-13, FAS PO of 03/04/2010 in case No. A49-43/08, Determination of the FAS Central District dated 04.12.2009 N F10-3426/09).
Thus, by the Resolution of 04.03.2010 in case No. A49-43/08, the FAS PO recognized the legality of imposing a penalty on the funds of the HOA received into 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 classifies payment for housing and utilities as mandatory payments, which constitute the funds of the partnership. And Federal Law No. 229-FZ of October 2, 2007 “On Enforcement Proceedings” allows for foreclosure on the debtor’s property held by third parties (Article 77).
At the same time, 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 management organization, cease to be the property of the partnership and organization as soon as they are transferred to the contractor’s bank account (in payment for work performed for the HOA or management organization) . In other words, it is unacceptable to foreclose on funds that constitute the income of a third party (Resolution of the Federal Antimonopoly Service UO dated July 8, 2009 N F09-4599/09-C2).
In conclusion, we note that management organizations and homeowners' associations should not attach decisive importance to the opinion of the arbitrators set out in the Resolution of the FAS North Caucasus of March 12, 2010 in case No. A53-1956/2009. As stated earlier, their conclusion is not supported by the provisions of the current legislation, which has supreme force.
G.Yu. Sharikova
Legal Advisor
NP "Nizhny Novgorod Homeowners Association"
Signed for seal
10.05.2010

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Federal Arbitration Court of the North Caucasus District in Resolution dated March 12, 2010 No. A53-1956/2009 made a very interesting conclusion: the funds received by the management organization from the owners of premises to pay for utilities have a specific 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, satisfying the claimant’s demands at the expense of these funds will lead to a significant violation of the interests of third parties. Let’s try to figure out to what extent this conclusion is justified and complies with current legislation.

Without exaggeration, it can be argued that the conclusion of the FAS North Kazakhstan region is a “balm for the soul” both for management organizations and for homeowners’ associations. In the Resolution of the Federal Antimonopoly Service of North Kazakhstan, perhaps for the first time, the role of the management organization in resource supply relations is reduced to the intermediary function of transferring funds from consumers to resource supply companies. In addition, the court came to the defense of third parties who were not parties to the dispute under consideration (energy supplying enterprises and owners of premises in apartment buildings who faithfully fulfill their obligations).

However, it is not possible to agree with the court’s opinion due to the current rules of law. Let us justify this conclusion.

Management organizations and homeowners associations are providers of public services ( clause 3 of the Rules for the provision of utility services). The law imposes on them the obligation to enter into agreements with the RNO (clause “c” clause 49 of the Rules for the provision of utility services). These contracts are concluded on behalf and at the expense of the utility service provider himself. Resource supplying enterprises make demands on their counterparty - the utility service provider, and these requirements must be satisfied by transferring funds available in the account of the utility service provider.

According to clause 7 art. 155 Housing Code of the Russian Federation owners of premises in an apartment building, which is managed by a management organization, pay fees for residential premises and utilities to this organization. In accordance with pp. 1 item 2 art. 151 Housing Code of the Russian Federation HOA funds consist, among other things, of obligatory payments, entrance and other contributions of members of the partnership.
It is obvious that the above rules diverge from the position of the arbitrators set out in. Payments from owners deposited into the current account or cash register of the management organization (HOA) are at its full disposal and are not protected from foreclosure on them for the debts of the management organization (HOA). It seems that this is precisely the conclusion that corresponds to the current legislation.

The management of an apartment building, carried out by a management organization, partnership, or other company, is broader than performing the functions of an intermediary between the owners of premises in the building and the RSO (contractors). Hence the high risks and responsibility of managers.

In practice, there are cases when management organizations enter into agreements with RSOs on behalf and at the expense of the owners of premises in the house. Payments from citizens go directly to the accounts of the RSO, and the management organization receives remuneration under the agency agreement. Such a scheme contradicts current legislation, since it cannot be attributed to any of the three methods of managing an apartment building.

We continue to insist that if the owners of the premises in the house have chosen a management organization or HOA to manage the house, then the latter are liable to the RSO to the extent of all funds in their accounts, regardless of the intended purpose of the funds. Most arbitrators share this position (see, for example, Resolution of the Federal Antimonopoly Service No. A63-2216/2008-S3-13 dated 04/09/2009, No. A49-43/08 of the Federal Antimonopoly Service dated 03/04/2010, No. F10-3426/09 of the Federal Antimonopoly Service dated 12/04/2009).

So, Resolution dated March 4, 2010 No. A49-43/08 FAS PO recognized as lawful the imposition of a penalty on the funds of the HOA received into 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 Housing Code of the Russian Federation and indicated that the law directly classifies payment for housing and utilities as mandatory payments, which constitute the funds of the partnership. A Federal Law of October 2, 2007 No. 229-FZ“On Enforcement Proceedings” allows for foreclosure on the debtor’s property held by third parties (Article 77).

At the same time, 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 management organization, cease to be the property of the partnership and organization as soon as they are transferred to the contractor’s bank account (in payment for work performed for the HOA or management organization) . In other words, it is unacceptable to foreclose on funds that constitute the income of a third party ( Resolution of the Federal Antimonopoly Service of Ukraine dated 07/08/2009 No. Ф09-4599/09-С2).

In conclusion, we note that management organizations and HOAs should not attach decisive importance to the opinion of the arbitrators set out in Resolution of the Federal Antimonopoly Service of North Kazakhstan region dated March 12, 2010 No. A53-1956/2009. As stated earlier, their conclusion is not supported by the provisions of the current legislation, which has supreme force.

G. Sharikova, lawyer, NP "Nizhny Novgorod Homeowners' Association"

A05-8017/2013

104/2013-57839(1)

FOURTEENTH ARBITRATION CASE
COURT OF APPEAL
st. Batyushkova, 12, Vologda, 160001
http://site

P O S T A N O V L E N I E

The operative part of the resolution was announced on December 11, 2013 .
The resolution was issued in full on December 16, 2013.

The Fourteenth Arbitration Court of Appeal, composed of presiding officer N.N. Osokina, judges N.V. Murakhina, O.Yu. Pestereva. when keeping the minutes by the secretary of the court session Mazaletskaya O.O.,
Having considered in open court the appeal of the entrepreneur Sergei Vasilievich Voronin against the decision of the Arbitration Court of the Arkhangelsk Region dated September 09, 2013 in case No. A05-8017/2013 (judge I.E. Bystrov),

u st a n o v i l:

Individual entrepreneur Voronin Sergey Vasilievich (OGRNIP 310290109800052) appealed to the Arbitration Court of the Arkhangelsk Region with a statement to the department of bailiffs for the Lomonosov District of Arkhangelsk of the Office of the Federal Bailiff Service for the Arkhangelsk Region to recognize as illegal the actions of the bailiff of the Department of Bailiffs for the Lomonosov District of the city. Arkhangelsk Office of the Federal Bailiff Service for the Arkhangelsk Region Oksana Ivanovna Manzhosova to foreclose on funds held in a special account No. 40821810727060000001, opened in the open joint-stock company "MDM Bank", as well as to assign duties to the bailiff Oksana Ivanovna Manzhosova. return 117,700 rubles to the specified bank account.
The Inspectorate of the Federal Tax Service for Arkhangelsk (hereinafter - the Inspectorate) and the open joint-stock company "MDM Bank" represented by the St. Petersburg branch (hereinafter - the Bank) were involved in the case as third parties who do not declare independent claims regarding the subject of the dispute. .
By the decision of the Arkhangelsk Regional Arbitration Court dated September 9, 2013, the stated claims were denied.
The entrepreneur did not agree with the court decision and filed an appeal, in which he asked the decision of the first instance court to be canceled and the stated demands to be satisfied. In support of the complaint, he refers to the incorrect application of substantive law. Believes that funds received in a special bank account cannot be recognized as the debtor’s funds, since they include payments from citizens for various services.
The Office of the Federal Bailiff Service for the Arkhangelsk Region, in its response to the appeal, asks that the decision of the court of first instance be left unchanged, considering it legal and justified, and the entrepreneur’s appeal - without satisfaction.
The bailiff and third parties did not provide feedback on the appeal.
The persons participating in the case were duly notified of the time and place of the court hearing; representatives were not sent to the court, so the case was considered in their absence on the basis of Articles 123, 156, 266 of the Arbitration Procedural Code of the Russian Federation (hereinafter referred to as the Arbitration Procedure Code of the Russian Federation).
Having examined the evidence in the case, checking the legality and validity of the decision of the first instance court, the appellate board finds no grounds for satisfying the entrepreneur’s appeal.
As follows from the case materials, consolidated enforcement proceedings No. 70339/12/23/29SD are pending execution in the department of bailiffs for the Lomonosov district of Arkhangelsk, the debtor of which is the entrepreneur.
Within the framework of the said consolidated enforcement proceedings, enforcement proceedings initiated on the basis of decisions of the tax authorities and decisions of justices of the peace on the involvement of S.V. Voronin are combined. to administrative liability.
In the framework of the said consolidated enforcement proceedings, bailiff Manzhosova O.I. issued a resolution dated June 13, 2013 to foreclose on the funds in the debtor’s account (vol. 1, l. 125).
By this resolution, the bailiff foreclosed on funds belonging to the entrepreneur in the amount of 117,700 rubles from his account No. 40821810727060000001, located in the St. Petersburg branch of the open joint-stock company MDM Bank.
The said order of the bailiff was received by the Bank on 06/20/2013 and was executed, namely: according to the collection order dated 06/20/2013 No. 39158, the Bank wrote off 06/21/2013 from the account No. 40821810727060000001 owned by the entrepreneur and transferred to the personal account of the bailiff department Lomonosov district Arkhangelsk Office of the Federal Bailiff Service for the Arkhangelsk Region, opened in the Office of the Federal Treasury for the Arkhangelsk Region, funds in the amount of 117,700 rubles (vol. 1, l. 10; vol. 4, l. 131-133).
The received funds, in accordance with the order of the bailiff dated June 24, 2013, issued as part of the consolidated enforcement proceedings, were distributed to pay off the debt under enforcement proceedings (vol. 1, l. 127-129).
Having disagreed with the actions of the bailiff to foreclose on funds held in special account No. 40821810727060000001, opened in the open joint-stock company MDM Bank, the entrepreneur filed a corresponding application with the arbitration court.
The court of first instance rejected Voronin S.V. in satisfying the application, considering that the contested actions of the bailiff comply with the requirements of Federal Law dated October 2, 2007 No. 229-FZ “On Enforcement Proceedings” (hereinafter referred to as Law No. 229-FZ) and Federal Law dated June 3, 2009 No. 103-FZ “On the activities of accepting payments from individuals carried out by paying agents” (hereinafter referred to as Law No. 103-FZ).
The appellate court considers these conclusions of the trial court to be justified in connection with the following.
According to part of Article 329 of the Arbitration Procedure Code of the Russian Federation, decisions and actions (inaction) of a bailiff can be challenged in an arbitration court in cases provided for by the Arbitration Procedure Code of the Russian Federation and other federal law, according to the rules established by Chapter 24 of this Code.
In accordance with part 1 of article 198, part 4 of article 200, part 2 of article 201 of the Arbitration Procedure Code of the Russian Federation, paragraph 6 of the resolution of the Plenum of the Supreme Court of the Russian Federation and the Supreme Arbitration Court of the Russian Federation dated 01.07.1996 No. 6/8 “On some issues related to the use part one of the Civil Code of the Russian Federation”, in order to satisfy the requirements for invalidating non-normative legal acts and illegal decisions and actions (inactions) of state bodies, two mandatory conditions must be present: their non-compliance with the law or other regulatory legal act, as well as a violation of the rights and legitimate interests of the applicant.
Article 64 of Law No. 229-FZ establishes that enforcement actions are actions performed by a bailiff in accordance with this Federal Law, aimed at creating conditions for the application of enforcement measures, as well as forcing the debtor to complete, correct and timely fulfillment of requirements, contained in the executive document.
According to Article 68 of Law No. 229-FZ, enforcement measures are actions specified in the writ of execution, or actions performed by the bailiff in order to obtain from the debtor property, including funds, subject to recovery under the writ of execution.
Compulsory enforcement measures are applied by the bailiff after the initiation of enforcement proceedings. If, in accordance with this Federal Law, a period is established for the voluntary fulfillment of the requirements contained in the executive document, then measures of compulsory execution are applied after the expiration of such a period.
A measure of compulsory execution, in particular, is the foreclosure of the debtor’s property, including cash and securities.
Article 69 of Law No. 229-FZ determines that foreclosure on the debtor’s property includes the seizure of property and (or) its forced sale or transfer to the claimant.
The debtor's property, including funds in rubles and foreign currency, is levied in the amount of the debt, that is, in the amount necessary to fulfill the requirements contained in the executive document, taking into account the collection of expenses for carrying out enforcement actions and the enforcement fee imposed by a bailiff in the process of executing a writ of execution.
Execution of the debtor's property according to executive documents applies primarily to his funds in rubles and foreign currency and other valuables, including those located in accounts, deposits or deposits in banks and other credit organizations, with the exception of the debtor's funds located on trading and (or) clearing accounts.
In accordance with Article 70 of Law No. 229-FZ, cash in rubles and foreign currency found in the possession of the debtor, including those stored in the safe deposit boxes of the debtor-organization, located in an isolated room of this cash desk or other premises of the debtor-organization, or stored in banks and other credit institutions are confiscated, about which a corresponding act is drawn up. The seized funds, no later than the business day following the day of seizure, are handed over to the bank for transfer to the deposit account of the bailiff department.
The transfer of funds from the debtor's accounts is carried out on the basis of a writ of execution or a resolution of the bailiff without the submission of settlement documents to the bank or other credit organization by the recoverer or the bailiff.
If there are funds in several accounts of the debtor, then the bailiff in the decree indicates from which account and in what amount the funds should be written off.
If a bank or other credit organization receives a resolution from a bailiff, the requirements contained in the executive document for the collection of funds are fulfilled by transferring them to the deposit account of the bailiff department.
Law No. 103-FZ regulates the relations that arise when a paying agent accepts funds from the payer aimed at fulfilling the monetary obligations of an individual to the supplier to pay for goods (works, services), as well as sent to government bodies, local governments and institutions under their jurisdiction, within the framework of their performance of functions established by the legislation of the Russian Federation.
Article 2 of Law No. 103-FZ defines the basic concepts used in this Federal Law.
In accordance with this norm, the payer is an individual who contributes funds to the paying agent in order to fulfill the monetary obligations of the individual to the supplier; a payment agent is a legal entity, with the exception of a credit organization, or an individual entrepreneur engaged in accepting payments from individuals; The payment agent is the payment acceptance operator or the payment subagent. Also, in accordance with this norm, the payment acceptance operator - payment agent is a legal entity that has entered into an agreement with the supplier to carry out activities for accepting payments from individuals; payment subagent - payment agent - a legal entity or individual entrepreneur who has entered into an agreement with the payment acceptance operator to carry out activities for accepting payments from individuals.
Article 3 of Law No. 103-FZ establishes that the activity of accepting payments from individuals for the purposes of this Federal Law is recognized as the acceptance by a payment agent from the payer of funds aimed at fulfilling monetary obligations to the supplier for payment for goods (works, services), including payment for residential premises and utilities in accordance with the Housing Code of the Russian Federation, as well as subsequent settlements with the supplier by the paying agent.
When accepting payments, the paying agent has the right to charge the payer a fee in the amount determined by the agreement between the paying agent and the payer.
The monetary obligation of an individual to the supplier is considered fulfilled in the amount of funds contributed to the paying agent, with the exception of remuneration, from the moment they are transferred to the paying agent.
According to Article 4 of Law No. 103-FZ, when accepting payments, the payment agent is obliged to use a special bank account (accounts) to make payments. The payment agent is obliged to hand over to the credit institution the cash received from payers when accepting payments for crediting in full to its special bank account (accounts).
The following operations can be carried out using a special bank account of the paying agent:
1) crediting cash received from individuals;
2) crediting funds debited from another special bank account of the paying agent;
3) debiting funds to a special bank account of the paying agent or supplier;
4) debiting funds to bank accounts.
Also, in accordance with Article 4 of Law No. 103-FZ, the payment acceptance operator must enter into an agreement with the supplier to carry out activities for accepting payments from individuals, under the terms of which the payment acceptance operator has the right on its own behalf or on behalf of the supplier and at the expense supplier to accept funds from payers in order to fulfill the monetary obligations of an individual to the supplier, and is also obliged to carry out subsequent settlements with the supplier in the manner established by the specified agreement and in accordance with the legislation of the Russian Federation, including requirements for spending cash received at the cash desk of a legal entity or the cash register of an individual entrepreneur.
The Supplier has the right to conclude an agreement with the payment acceptance operator on the implementation of activities for accepting payments from individuals, specified in Part 1 of this article, unless otherwise established by the legislation of the Russian Federation. The Government of the Russian Federation has the right to establish a list of goods (works, services) in payment for which the payment agent does not have the right to accept payments from individuals.
The payment subagent accepts payments on its own behalf or on behalf of the payment acceptance operator, and if this is stipulated in the agreement on the activities of accepting payments from individuals concluded by the payment acceptance operator with the supplier - on behalf of the supplier and in accordance with requirements of Article 1009 of the Civil Code of the Russian Federation.
To accept payments, the payment subagent must enter into an agreement with the payment acceptance operator to carry out activities for accepting payments from individuals, under the terms of which the payment subagent has the right on its own behalf, on behalf of the payment acceptance operator or on behalf of the supplier and at the expense of the supplier, acceptance operator payments to accept funds from payers in accordance with the terms of the agreement provided for in Part 1 of this article, and is also obliged to carry out subsequent settlements with the operator for accepting payments in accordance with the legislation of the Russian Federation, including requirements for the maximum amount of cash settlements and the expenditure of cash, received by the cash desk of a legal entity or the cash desk of an individual entrepreneur.
When accepting payments, the payment agent must have a corresponding agreement on the implementation of activities for accepting payments from individuals, provided for by this article. The activities of a legal entity or individual entrepreneur in accepting funds from an individual without concluding the specified agreement that meets the requirements of this Federal Law, or an agreement on the implementation of activities for accepting payments from individuals, provided for by the Federal Law “On Banks and Banking Activities”, is prohibited.
In accordance with Article 845 of the Civil Code of the Russian Federation, a bank account is an account opened by a bank to its clients for the latter to participate in non-cash money circulation and accumulate funds on the account for their intended use. Under a bank account agreement, the bank undertakes to accept and credit funds received to the account opened for the client (account owner), carry out the client’s orders to transfer and withdraw the corresponding amounts from the account and carry out other operations on the account.
Legal relations regarding a bank account are regulated by the norms of Chapter 45 of the Civil Code of the Russian Federation. In accordance with Article 854 of the Civil Code of the Russian Federation, by a court decision and in cases established by law, funds in the account may be written off without the client’s order.
Account No. 40821 “Special bank account of the paying agent, bank paying agent (subagent), supplier” was introduced by Directive of the Central Bank of the Russian Federation dated November 25, 2009 No. 2343-U. The account is one of the types of special bank accounts, which, in accordance with clause 2.8 of the instruction of the Central Bank of the Russian Federation dated September 14, 2006 No. 28-I “On opening and closing bank accounts, deposit accounts”, are opened to legal entities and individuals in cases and the procedure established by the legislation of the Russian Federation for the implementation of operations of the relevant type provided for by it.
In this case, the entrepreneur concluded a paying agent bank account agreement with the Bank dated September 20, 2011, according to which the applicant opened a separate bank account No. 40821810151000000001 (vol. 4, l. 127-130). Subsequently (from 03/03/2012) in connection with internal reorganization procedures in the Bank, instead of the specified account, a special account No. 40821810727060000001 (vol. 5, l. 12, 21) was opened for the entrepreneur.
Under this agreement, the Bank assumed the obligation to provide comprehensive settlement and cash services to the client and carry out, on his behalf, all settlement and cash transactions in accordance with the legislation of the Russian Federation, the rules and procedures established by the Central Bank of the Russian Federation, including fulfilling the client’s instructions for transfers funds from the account to another account of the client and third party accounts, carry out instructions to credit the client’s account with funds due to him from other persons, accept and issue cash to the client in cases and in the manner provided for by the legislation of the Russian Federation.
Based on the provisions of clause 2.4 of the said agreement, the client has the right to independently dispose of the funds in his account in the manner and within the limits established by current legislation.
The case materials also include an agreement on accepting payments by an involved payment subagent dated April 26, 2010 No. 1012311/2241, according to which the entrepreneur acts as an involved payment subagent (bank payment agent).
The entrepreneur indicates that a special bank account is opened to record deposited cash received from individuals and make payments in accordance with Law No. 103-FZ and all funds received into the account are of a targeted nature and cannot be recognized as cash debtor.
At the same time, from the above rules it follows that this account from payers is credited with amounts that are the agent’s remuneration for accepting payments, which can be debited to bank accounts.
In this case, the remuneration amounts credited to the account are the entrepreneur’s funds.
From the Bank’s statement presented by the bailiff for the specified account, it is clear that at the expense of the funds in the disputed account, the entrepreneur’s obligations to the Bank to pay bank commissions were regularly fulfilled, in addition, at the expense of the funds in the specified account, transactions were carried out to pay rent (vol. 5, l. 39-74).
From the account statement provided by the Bank for the period from 06/01/2013 to 08/11/2013 (vol. 4, l. 132-136), it is also clear that at the expense of the funds in the specified account, the entrepreneur, among other transactions, paid rent, paid fine, that is, he freely disposed of the funds in the account for his own personal purposes.
In this regard, the court of first instance rightfully rejected the applicant’s argument that all funds in the account are earmarked and do not belong to the entrepreneur.
Under these circumstances, the bailiff reasonably considered that the disputed account contained funds belonging to the entrepreneur.
When issuing a resolution dated June 13, 2013 on the foreclosure of funds in the debtor’s account, the bailiff, in order to avoid the collection of funds that do not belong to the entrepreneur, in paragraph 1 of the said resolution specifically indicated that the foreclosure is applied only to funds belonging to Voronin S.V.
The applicant, neither when considering the case in the court of first instance, nor when considering the case in the court of appeal, did not provide evidence that the funds in the amount of 117,700 rubles, written off by the Bank from the specified account on the basis of the order of the bailiff, did not belong to him.
Based on the foregoing, the appellate court finds no grounds for satisfying the entrepreneur’s appeal and canceling the decision of the first instance court.
Guided by Articles 269, 271 of the Arbitration Procedural Code of the Russian Federation, the Fourteenth Arbitration Court of Appeal

p o st a n o v i l:

The decision of the Arbitration Court of the Arkhangelsk Region dated September 9, 2013 in case No. A05-8017/2013 is left unchanged, the appeal of the individual entrepreneur Sergei Vasilievich Voronin is not satisfied.