Three times pledged property may indicate the presence of a fraudulent scheme. This opinion in an exclusive commentary UNN was expressed by a lawyer, partner of "Alekseev, Boyarchukov and partners" Andriy Datskiv.
It should be understood that banks are highly regulated financial institutions that are required to comply with basic lending principles when granting loans, including verifying the creditworthiness of borrowers and the availability of loan collateral
He added that the procedures for managing the credit risk of banks must necessarily contain requirements for the valuation of property received by the bank as collateral or security for a loan on the basis of the right of trust and appraisers. The procedure for property appraisal is also clearly regulated if the appraiser is a bank employee.
"Detailed procedures for checking this or that pledged property are stipulated in the banks' internal regulations. If there is already an encumbrance on a particular pledged property, it is necessary to analyze the original pledge agreement, the amount of the underlying obligation secured by this property," the lawyer stressed.
According to Datskiv, formally there is no prohibition to issue another loan against the same property, but it is possible only if the original contract does not prohibit such operations, and the value of the appraised property is sufficient to secure both the old and the new loan.
"The only thing to consider is that if the preliminary encumbrance is registered, it is the original creditor who will have priority to satisfy its claims from such property and only from the balance from its realization can the next loan be repaid," the lawyer said.
In addition, according to him, it is impossible to dispose of the pledged property without the creditor's consent. This is a criminal offense under Article 388 of the Criminal Code of Ukraine.
Triple pledged property in practice may be mostly unregistered pledges, since in each case both the subject of pledge and the amount of liabilities are analyzed. Liability may be incurred both by officials charged with the duty to verify such property on the part of the bank and by other fraud-related persons, since such transactions may have the characteristics of fraud, as it is a matter of taking possession of credit funds by deception. On the other hand, non-registration of an encumbrance, formally permissible in civil turnover, may be a consequence of abuse of office by a bank employee
He added that such actions can be responded to by the NBU during inspections of banks' activities, their compliance with the requirements of internal regulations on lending, risk assessment, etc., and other requirements of banking legislation. "For this, a bank can elementary lose its license," Datskiv noted.
At the same time, according to him, property seized in criminal proceedings cannot be recovered. This may be followed by criminal liability, provided also by Article 388 of the Criminal Code of Ukraine. Moreover, even the execution of the court decision on the recovery of such property entails risks of liability.
"A company that buys such property bears the risks of invalidation of the relevant transaction and restitution - return of the property to the previous owner. Formally, as long as the company is the owner of the property, it can take a loan. But the situation should be assessed as a whole, who is involved in the relevant scheme and whether there is no collusion in such a case," Datskiv added.
Recall
UNN reported that Odessa businessmen Serhiy Groza and Vladimir Naumenko, who managed the Olympex grain terminal with the help of their companies, managed to remortgage the property three times. Half of the Olympex terminal, including Sukhoi Port, had been pledged to the U.S. fund since 2019. And when Groza and Naumenko probably decided not to give the $75 million loan they borrowed from Ukrainian banks Vostok and Pivdenniy against the same property that the Americans had. After that, the banks allegedly sold the pledged property at probably a very low price, and eventually it ended up under another pledge, but already, as the media say, in companies controlled by Groza and Naumenko.
Thus, they probably wanted to retain control over the largest gates of gray exports in 2021-2023. It is not excluded that Vadim Morokhovskyi, chairman of the board of directors of Bank Vostok and part-time chairman of the faction "Servant of the People" in the Odessa City Council, helped in the realization of the plan. According to sources of UNN, the loan agreement between Groza and Naumenko stipulated that they had to coordinate any actions on Olimpex property with the American creditors.