Tripping over nothing: issues related to the return of the guarantee fee to SE “Setam”
When the legislation clearly explains the specifics of settlement of a certain issue, there can be no contradictory interpretations. Still, the organizers of the auction of SE “Setam” decided to interpret the law in their own way.
Bidders of the seized property who have previously made their guarantee contributions do not always receive them back in time after the auction. The reports on the official forum http://forum.setam.net.uaare evidenced of it. It is necessary to say that a huge number of problem situations are caused by lack of knowledge or inattention of the participants. It includes incorrect filling in of bank details (very common after the introduction of the IBAN standard) and delay in submitting an application for a refund in case of wrong details.
However, such situations are not a cause for alarm and do not deserve a separate talk. The refusal of the organizers to return the guarantee fees to the 3rd and other participants should be taken as wake-up call. In my practice, I have faced a similar refusal. In the end, my colleagues from “Syntem” and I managed to take the appropriate steps to return the guarantee fee to the client. I want to tell you how we did it.
The Supreme Court has spoken
First of all, let’s turn to the Law of Ukraine on Mortgage dated June 5, 2003 No. 898.
The procedure of selling the borrowed property is defined in Article 41: “The borrowed property which is seized by a court decision or an executive notary document is sold in open auction, including electronic bidding, but within the framework of enforcement proceedings. Selling should be conducted through open auction if the court has not adopted another enforcement mechanism, taking into account all particularities of the case.
Article 45, part eight states: “If the winner of the public auction refuses to sign the protocol, the next bidder, who offers the highest price but not lower than the initial price, is declared the winner of the public auction. The public auction will be declared invalid in case of his absence or refusal.”
The third part of Article 46 also reads as follows: “If the buyer does not pay the full amount within ten days, the guarantee fee is not refunded, and the next bidder who offered the highest price not lower than the initial price is declared as the winner of the public auction. In his absence or refusal, the public auction will be declared unsuccessful. The guarantee fee is also not refundable to the bidder who became the winner of the bidding, but refused to sign the protocol.”
Despite these legal requirements, controversial situations have arisen over the determination of the winner of the mortgage tender. Eventually, one such dispute was a subject of consideration in the Supreme Court. On October 18, 2018, the Supreme Court made a ruling in case № 903/145/18 clearly defined the interpretation of these legal norms: “… announcing the third and subsequent participants as a winner of the public auction in the public bidding is a violation of the bidding procedure“.
Even before that, a similar legal position was set out in the decision of the Supreme Court of 28.02.2018 on the case №463 / 6465/14.
It is important to stress: in accordance with the requirements of Article 263 Part 4 of the CPC and Article 236 Part 4 of the CPC, “While choosing and applying the rule of law to the disputed legal relationship, the court takes into account the conclusions on the application of the relevant rules of law set out in the decisions of the Supreme Court.
So, the Supreme Court has spoken. There should be no doubt that if the first and second bidders have not taken all the necessary steps that have to be taken by the winner, such electronic bidding should be translated into the status of “failed bidding “. Therefore, the third and all subsequent participants must be reimbursed the guarantee fees automatically within three days of determining the status of “no bidding”. However, SE “Setam” does not take into account the current legislation. Current case law is also not a factor in preventing abuse by bidders.
SE “Setam” illegally held the money during the year
How it all began?
My client was one of seven participants in the third electronic auction for the sale of the borrowed property. There were five bids in this auction. It means that the lot aroused great interest.
In the end, the winner was determined. This person offered the highest price. However, the winner did not pay the required amount within the statutory period (10 days). The second winner was determined (the participant who made the second largest bet). Still, the second winner also refused to sign the protocol and pay for the purchased property.
This case fully complies with the conditions for recognizing the auction as failed one. But the representatives of SE “Setam” had a different point of view on this matter. The bidder continued to determine the new winners among other bidders.
Why the bidder was compelled to go to the court?
My client’s bid was the third largest. It means he could not win the bidding in any possible way. However, when he applied to the organizer for a refund of the guarantee fee, he was denied. As the justification for the refusal it was explained: in order to recognize the bidding as failed, it is necessary to refuse to sign the protocol or not to pay money within the specified time by all bidders. Guarantee fees are not refundable to all these participants.
The bidder went to the court to protect his violated rights with my support. The claims concerned the return of the guarantee fee, which was withheld illegally by SE “Setam”. The mortgagee also filed a lawsuit against “Setam” for not recognizing the auction as failed.
What do we have in the end?
The trials lasted about a year. As a result, we were able to obtain court decisions declaring the actions of “Setam” illegal. In particular, next positions do not comply with legal norms:
1) refusal to recognize the auction as failed;
2) withholding of the guarantee fee of the participant who made the third largest bet and could not be determined as the winner.
Although only one bidder and the mortgagee applied to the court, after the court decisions came into force, the guarantee fees were returned to the three bidders whose rights had been violated.
Why did the organizer of the auction of SE “Setam” commit such a serious violation?
Let’s remind: according to p. 2 of section X of the Order of realization of the arrested property which was approved by the order of the Ministry of Justice of Ukraine from 12/22/2015 № 2710/5: «If electronic auctions didn’t take place or property is withdrawn from sale according to point 5 of section XI of this Order, the guarantee fee shall be refunded to the participants of these electronic auctions within three working days from the day following the day of recognition of the electronic auction as failed, except for the cases provided for in paragraph 3 of this section.”
Instead, ‘Setam’ held guarantee contributions of three bidders (the third, the fourth and the fifth) for almost a year. There was no reaction to the letters and appeals of these people regarding the illegality of such actions. The organizer of the auction was guided by own interpretation of the law.
We will not assume how the story would end in the case of a passive position of the interested parties. Whatever they were, our client did not wait around and defended his rights with professional legal assistance. He achieved the desired result. This is how successful precedents for completing such cases are obtained!