Supreme Court ruling on NBU lawsuit against Kolomoisky's Gadzhibey violates NBU's creditor rights
The Supreme Court on January 22 rejected the cassation appeal of the National Bank of Ukraine (NBU) against the decision of the courts of previous instances to refuse the foreclosure of mortgage of Ihor Kolomoisky's company Gadzhibey LLC, the NBU said on the website.
According to the report, in October 2014 the indicated company pledged two land plots in Odesa region to the NBU as collateral for a refinancing loan, which was provided to PrivatBank before its nationalization. Since Gadzhibey did not fulfill the obligations undertaken as the property guarantor of PrivatBank, the NBU filed a lawsuit to the Economic Court of Odesa region to repay the debt through foreclosure of the collateral property.
The court of first instance on October 26, 2018 and the court of appeals on October 22, 2019 rejected the NBU's claims. The courts justified their position by the fact that the NBU had to collect the collateral from Gadzhibey only if it was impossible to write off the funds from PrivatBank's accounts.
The report says when filing the lawsuit, the NBU was guided by the norms, in particular, of the law on the National Bank of Ukraine. The NBU is empowered to both write off funds from the accounts of debtor banks and to foreclose on mortgaged property of financial and property guarantors. Such a right is preferable and unconditional in satisfying the NBU's creditor requirements for the granted refinancing loans, which have matured. In addition, the Supreme Court has repeatedly stated: the right to indisputably write off funds from PrivatBank's accounts is not the NBU's duty, therefore, it does not in any way exclude and cannot exclude the statutory right to foreclose on a mortgage, in particular, in a judicial proceeding. This legal position was clearly indicated in disputes with similar legal relations.