Consequences of declaring the auction invalid. Recognition of public auctions as invalid Grounds for declaring an auction invalid

• Only 1 URZ submitted an application (see above).

• Only 1 URZ was admitted to the UAEF. His application was found compliant, the rest were rejected.

• Several URZs were admitted, but none of the URZs made bids at the auction. In this case, the winner is the URZ who submitted his application before everyone else. A contract is concluded with him.

• If the auction (OAEF) is declared invalid, then, depending on whether there is a participant admitted to it, the actions and documents drawn up are as follows.

• A protocol for declaring the electronic auction (OAEF) invalid is drawn up and posted on the site.

• This is a procedure that involves drawing up and posting a protocol on declaring the auction (OAEF) invalid.

• Reason for declaring the auction invalid: only 1 participant was admitted and/or declared.

• Information that a state agreement will be concluded with this participant. Contract.

• If there were other participants, but their applications were rejected, then the reasons for the rejection of applications are indicated.

• There is one participant.

• Concluding a contract with this participant.

• No participants or applications.

• Repeated auction.

• Replacement of an order.

• No applications.

• All applications (all URZ) were rejected.

• 1 participant allowed.

• There were no offers during the bidding.

Repeated auction in electronic form.

Grounds for declaring the auction invalid. General provisions The Civil Code of the Russian Federation on concluding an agreement at an auction provides for one basis for declaring the auction invalid: if only one participant participated in the auction or competition (clause

5 tbsp. 447 of the Civil Code of the Russian Federation). The Law on Enforcement Proceedings does not name such grounds for declaring public auctions invalid at all.

The most detailed list of grounds for declaring public auctions invalid is contained in the Mortgage Law and takes into account the peculiarities of the relations that develop during the sale of foreclosed property. Clause 1 of Art. 58 of this Law provides that the organizer of public auctions declares them invalid in cases where:

1) less than two buyers attended the public auction;

2) at the public auction no premium was made against the initial sale price of the pledged property;

3) the person who won the public auction did not pay the purchase price within the prescribed period.

Public auctions must be declared void no later than the next day after any of the specified circumstances occurred.

It cannot but be surprising that the legislation on enforcement proceedings does not indicate such circumstances as the absence of premiums and evasion of payment of the purchase price as grounds for declaring the auction invalid.

In the absence of premiums, there is no actual bidding, since there is no competition of bids and the goal of putting the property up for public sale is not achieved - determining its fair price by considering incoming offers. This mechanism allows us to assert with a certain degree of confidence that the identified price reflects the situation on the market. The public auction mechanism is necessary because the debtor is removed from the disposal of the property and cannot determine the sale price; it is fair in this case to install it not at will government agency, but in such a way as to reveal at what price they are ready to buy it.

If the buyer evades paying the purchase price, the purpose of the public sale is not achieved, especially since the foreclosure is aimed at obtaining monetary proceeds for the property put up for sale, and not at concluding a purchase and sale agreement. To believe that the organizer of the auction must present new demands to the buyer for payment of the price means that instead of the money necessary to execute the decision on collection, the organizer of the public auction acquires only the right to claim; the obligation may not be fulfilled by the buyer. This situation contradicts the nature of the institution of enforcement of a decision to collect funds.

It is also obvious that the identified gap in the legislation on enforcement proceedings must be eliminated.

The temporary instruction on the procedure for exercising rights (requirements) in comparison with the Civil Code of the Russian Federation at first glance expands the list of grounds under which public auctions for the sale of receivables can be declared invalid. In accordance with clause 35 of the Temporary Instructions, auctions are considered invalid only in cases where:

only one participant took part in the auction;

During the bidding process, no bidder applied to purchase the receivables at a price equal to or greater than the amount of the assessment made by the person carrying out the recovery when seizing such receivables.

a) no applications have been submitted to participate in the auction;

b) only one participant took part in the auction;

c) none of the participants in the auction, held in the form of an auction, after three times announcing the minimum starting price for the sale of property, raised a ticket;

d) none of the participants in the auction for the sale of receivables, after the minimum price for the sale of receivables was announced three times, raised a ticket;

e) none of the participants in the bidding, held in the form of a competition by decision of the commission, submitted proposals that met the conditions of the competition.

The commission's decision to declare the auction invalid is documented in a protocol. Such a decision must be made no later than the next day after any of the above circumstances occurred.

Actually specified in the Temporary Instructions, as well as in sub. “a”, “b”, “c”, “d” grounds can be considered as special cases of the situation reflected in paragraph 1 of Art. 447 of the Civil Code of the Russian Federation, since refusal to submit proposals for purchase may be considered as refusal to participate in the auction.

To solve problems arising in connection with the lack of special instructions in the procedural legislation on the possibility of declaring public auctions invalid if the winner of the auction evades payment, the Russian Federal Property Fund is forced to resort to a rather complex mechanism for canceling the results of auctions, which was discussed earlier during the study of the procedure for paying for property purchased at auction .

The absence of premiums over the original selling price made by bidders is not considered a “defect” of the public sale, although, as stated, this is contrary to the purpose and objectives of the public sale.

In this situation, it seems acceptable to apply by analogy the norm of the Mortgage Law, which recognizes the absence of premiums against the initial price of the property put up for auction as a basis for declaring public auctions invalid.

Consequences of declaring the auction invalid. The provisions of the Civil Code of the Russian Federation on auctions do not indicate the consequences of declaring them invalid. But from the point this term it follows that failed auctions do not give rise to any rights and obligations related to the conclusion of an agreement for the organizer and participants in the auction; the target of the auction was not achieved.

This circumstance is not always taken into account, and in a situation where the auction did not take place, demands are made to declare it invalid.

So, Joint-Stock Company In 1998, the Norilsk Combine filed a claim with the arbitration court for recognition void bidding for the sale of the building.

The court decision, upheld by the appellate court, rejected the claims due to the fact that the law was not violated during the preparation and conduct of the auction, and the auction was declared invalid.

The cassation court, leaving the judicial acts unchanged, pointed out the following. Bidding is one of the ways to conclude a contract. Therefore, according to paragraph 2 of Art. 449 of the Civil Code of the Russian Federation, recognition of the auction as invalid entails the invalidity of the contract concluded with the person who won the auction. Trades declared invalid have no legal result and cannot be declared invalid.

With regard to the sale of pledged property, the Civil Code of the Russian Federation provides that when the auction is declared void, the pledgee has the right, by agreement with the pledgor, to purchase the pledged property and offset against the purchase price its claims secured by the pledge.

If the repeated auction is declared invalid, the pledge holder has the right to retain the pledged item with its valuation in the amount of no more than 10% lower than the initial sale price at the repeated auction (clause 4 of Article 350 of the Civil Code of the Russian Federation).

Based on these provisions, recognition of the first auction as invalid allows the pledgor to either demand that the property be put up for repeated auctions, or to enter into an agreement with the pledgor to purchase the subject of pledge in the manner provided for in clause 4 of Art. 350 Civil Code of the Russian Federation.

Recognition of repeated auctions as failed is not a basis for holding new auctions; If the pledgee does not exercise the right to retain the pledged item within a month from the date the repeated auction is declared invalid, the pledge agreement is terminated.

The Civil Code does not establish the timing and specifics of repeat bidding.

The Law on Mortgage (Article 58) contains more detailed regulation of the relations arising when public auctions for the sale of the subject of mortgage are declared invalid.

In this case, the mortgagee has the right, by agreement with the mortgagor, to purchase the pledged property at its initial sale price at a public auction and set off against the purchase price his claims secured by the mortgage of this property.

If the pledgee does not enter into such an agreement with the pledgor within 10 days after the public auction is declared invalid, a repeat public auction is held. They must be held no later than one month after the first auction.

If the auction was declared invalid due to the failure of a sufficient number of buyers to attend the auction (less than two) or due to the lack of a premium to the initial price, then the initial price at the repeated auction is reduced by 15%. Otherwise, repeated auctions are carried out according to the rules provided for the first auction.

Repeated public auctions are declared invalid on the same grounds as the first auction. In this case, the mortgagee is given the right to purchase (retain) the mortgaged property at a price no more than 25% lower than its initial sale price at the first public auction and to offset its claims secured by the mortgage against the purchase price.

If the mortgagee does not exercise the right to retain the subject of the mortgage within a month after the repeated public auction is declared invalid, the mortgage is terminated.

The Law on Enforcement Proceedings does not establish rules on the consequences of declaring invalid a public auction for the sale of real estate that has been foreclosed on other grounds (not as the subject of a mortgage).

In practice, in the event of a trade being declared invalid, with the exception of the recognition failed auctions for the sale of receivables, the auction organizer, within one working day from the date the commission made a decision to declare the auction invalid, notifies in writing the government body that transferred the property for sale, and also sends it a draft notice for approval. If the organizer of the auction is a representative of the Fund, then simultaneously with the notification of the state body, the organizer of the auction sends a notice of recognition of the auction as invalid to the Fund (branch of the Fund).

Within 14 calendar days from the date the commission makes a decision to declare the auction invalid, the organizer of the auction, in agreement with the government agency, organizes the preparation and publication of a notice declaring the auction invalid.

In accordance with paragraph 4 of Art. 54 of the Law on Enforcement Proceedings, if the property is not sold within two months, the claimant is given the right to keep this property. If the claimant refuses the property, it is returned to the debtor, and the writ of execution is returned to the claimant.

If the claimant retains the property, the enforcement proceedings end in connection with the actual execution of the writ of execution (subclause 1, clause 1, article 27 of the Law on Enforcement Proceedings).

If the claimant refuses the property, the enforcement proceedings end with the return of the writ of execution on the grounds specified in Art. 26 of the Law, namely on the grounds provided for in subsection. 5 p. 1 art. 26, - if the claimant refused to retain the debtor’s property that was not sold during the execution of the writ of execution.

On the impossibility of collection on the specified basis, the bailiff draws up a report, which is approved by the senior bailiff.

The return of the writ of execution to the claimant is not an obstacle to the new presentation of the specified document for execution within the general deadlines for the presentation of writs of execution for execution established by Art. 14 of the Law on Enforcement Proceedings.

It should also be taken into account that the period for presenting a writ of execution for execution is interrupted by the presentation of this document for execution and partial execution of the document. In the event of the return of the writ of execution to the claimant due to the impossibility of its full or partial execution within the time limit for presenting the writ of execution for execution after a break, it is calculated from the date of return of the writ of execution to the claimant (clause 3 of Article 15 of the Law on Enforcement Proceedings).

As we see, the Law on Enforcement Proceedings does not provide for the possibility of re-offering real estate for sale. At the same time, the obligation to offer the property to the claimant arises if the sale does not occur within the two-month period provided by law. In this regard, in a number of cases, the courts recognized the legality of the repeated public sale of real estate if it was carried out in compliance with general rules holding public auctions and within the above-mentioned period.

Taking this into account, the RFBR recommendations contain an indication that the auction organizer has the right, in agreement with the government body that transferred the property for sale, to declare rerun tenders, except for cases where tenders for the sale of receivables are declared invalid. Repeated auctions are announced no earlier than 10 days after the auction is declared invalid and are conducted in compliance with the rules established for the first auction.

Revaluation of property transferred for sale in the process of preparation for re-tendering is carried out if such a possibility is provided for by federal legislation and other regulatory legal acts.

With regard to the sale of receivables that have been seized as part of enforcement proceedings, the Temporary Instructions provide that if the auction for the sale of receivables is declared invalid, the person collecting the collection, or on his behalf, the seller, within five days, transfers the receivables, Required documents, and also gives instructions to sell this debt on a commission basis.

According to the procedure recommended by the Russian Federal Property Fund, if the auction for the sale of receivables is declared invalid, the auction organizer, within one business day from the date the commission makes such a decision, sends a protocol on declaring the auction invalid for approval to the government body that transferred the receivables for sale. Within the specified time frame, a draft notice of declaring the auction invalid is sent to the government body for approval.

If the organizer of the auction is a representative of the Fund, then simultaneously with sending the specified protocol for approval to the government body, the organizer of the auction sends a notice of declaring the auction invalid to the Fund (branch of the Fund).

If the auction for the sale of receivables is declared invalid, a notice of this is published within 14 calendar days from the date the state body approves the protocol on declaring the auction invalid.

The notice of recognition of the auction as invalid is published in the same publication in which the notice of the auction was published.

Further sale of receivables is carried out through direct sales (without bidding). For this purpose, the auction organizer transfers the receivables not sold at the auction and the documents attached to the application for its sale to the government body that transferred the receivables for sale, or on behalf of the government body to the person specified in the notice of the auction.

The sale of receivables on a commission basis can be carried out by the same specialized organization that organized the auction.

Receivables transferred for sale on a commission basis must be put up for sale within five days from the date of transfer of the relevant documents.

In a consignment sale, the receivables are put up for sale at a price equal to the amount of the appraisal made by the person carrying out the collection when such receivables were seized.

If within five days from the moment the receivables were put up for sale they were not sold, the seller has the right to raise the issue of revaluation of such receivables with the person carrying out the collection. A new assessment must be made within 10 days from the date of the decision to conduct it. Revaluation of receivables due to the impossibility of their sale can be carried out up to two times (clauses 36-37 of the Temporary Instructions).

Charter of civil proceedings

1062. The trade is declared invalid:

1) if no one willing to bargain appears, or only one appears;

3) if at the end of the auction the buyer, having made a deposit, does not pay the remaining amount of the debt on time.

1063. When the auction does not take place due to the non-appearance of those willing to bargain, then the debtor’s cash creditors are given a majority vote in proportion to the amount of their recoveries to request a new auction or to retain the property according to the valuation.

1064. The right to retain property belongs primarily to the creditor at whose request the seizure was imposed, and then to the one whose recovery is more significant.

1065. Property that was not sold at the second auction and not retained by the creditors is released from seizure, and the creditors are allowed to foreclose on other property belonging to the debtor.

1066. In the case indicated in the previous (1065) article, the costs of arrest, storage and sale of property are borne by the claimant who seized it, or by the creditors who demanded the sale of the property when they refuse to accept it.

1067. The claimant is given the right to ask for a new auction if, upon presentation of the deposit, the remaining money has not been paid on time (Article 1057). In this case, the deposit is added to the total amount received for the property.

1068. A new auction may be appointed on a general basis:

1) When all the pledged property is, before the term of the mortgage, put up for sale at the request of the mortgagee’s creditors, and the highest price offered at the auction is less than the amount that should be paid to the mortgagee.

2) When the mortgagee does not want to keep the property for himself.

[Regarding real estate]

1170. Trades are declared invalid:

1) if no one willing to bargain appears or only one appears;

2) if none of those who appeared makes an increase against the assessment;

3) if at the end of the auction the buyer, having made a deposit, does not pay the remaining amount of the debt.

1171. If the auction does not take place, then the creditors have the right to ask for a new one, or to retain the estate for themselves in the amount with which the auction began.

1172. A new auction may, at the request of the creditors, be carried out at the district court of one of the capitals.

1173. The creditor who accepts the estate is obliged to satisfy all other creditors with the amounts due to them according to the settlement.

1174. Disagreements between creditors on the issue of conducting a new auction are resolved by a majority vote of the existing creditors, in proportion to the amount of their claims.

1175. If the second auction does not take place, then the creditors must retain the estate for themselves or foreclose on other property belonging to the debtor, paying, in proportion to the collection of each, the costs of putting the estate on sale.

Civil Procedure Code of the RSFSR 1923

Article 314. Bidding is considered invalid: 1) if no one came to bargain; 2) if none of those who appeared makes an additional payment against the assessment, or 3) if the buyer does not pay the deposit or the remaining amount on time (Article 308).

Article 316. If the auction does not take place, the claimants, within three days, may declare that the property being sold is retained by them according to the assessment and in the order of priority corresponding to the size of their claims.

Article 317. When the auction does not take place and none of the claimants retain the property, the bailiff appoints a secondary auction no earlier than a week later, in compliance with the procedure established for the first auction, and the secondary auction begins with the estimated or first offered amount.

Civil Procedure Code of the RSFSR 1964

Article 403. Declaring auctions void

The bailiff declares the auction invalid:

1) if less than two buyers came to the auction;

2) if none of those who appeared makes an increase against the initial assessment of the building;

3) if the buyer does not pay the full amount for which the building was purchased within five days.

Article 404. Consequences of declaring the auction invalid

If the auction is declared invalid, the claimant is given the right to retain the building in the amount of the original assessment.

If such an application is not received, the bailiff, no earlier than ten days after the auction is declared invalid, appoints a secondary auction. Secondary auctions are announced and held in compliance with the rules

pitches established for the first bids, but begin with the estimated or first amount offered.

If the secondary auction is declared invalid and the claimant refuses to retain possession of the building being sold, the seizure of the building is lifted.

Instructions on enforcement proceedings 1985

101. The bailiff declares the auction invalid:

a) if less than two buyers came to the auction;

b) if none of those who appeared made an increase against the initial assessment of the building indicated in the act of seizure of the building;

c) if the buyer within established by law deadline did not pay in full the amount for which he purchased the building.

102. If the auction does not take place, the bailiff informs the claimant about this. The latter may, within three days after receiving the notice, declare that he/she retains the house according to the assessment indicated in the inventory.

If there are several claimants, the priority right to retain the house being sold has government agencies and enterprises, and in case of refusal - collective farms, cooperative and other public organizations.

The claimant who retained the house must, within five days, deposit into the deposit account of the people's court the difference between the assessment amount and the amount attributable to his share, based on the calculation of the amounts due to each claimant, drawn up in compliance with the established order of satisfaction of claims.

103. If the claimant does not wish to keep the building, the bailiff shall appoint a secondary auction no earlier than ten days after the auction is declared invalid. Secondary auctions are carried out in compliance with the procedure established for the first auction, but begin with the inventory, insurance or first price offered by buyers, depending on the rules established by the civil procedural codes of the union republics.

If the secondary auction is declared invalid and the claimant refuses to retain the building being sold, the seizure of the building is lifted and the building is returned to the debtor, however, if the legislation of the Union Republic provides for rules for the sale of a residential building that was not sold at auction, the building is sold according to these rules.