Could be a fraudulent scheme - attorney on the re-mortgaging of the Olympex grain terminal property

The re-mortgaging of the property of the Olympex grain terminal by Odessa businessmen Serhiy Groza and Volodymyr Naumenko several times indicates the probable existence of a fraudulent scheme. Law enforcement agencies should investigate and, if the facts of fraud are established, bring to criminal responsibility both borrowers and officials of the banks that issued them loans. This opinion in an exclusive commentary UNN expressed the lawyer of AB "Kasyanenko and partners" Dmitry Kasyanenko.

Such actions (re-bailment of already encumbered property by Groza and Naumenko - ed.) may indeed indicate a fraudulent scheme. Law enforcement agencies should investigate such cases, taking measures to bring the guilty parties to criminal responsibility. The National Bank of Ukraine should monitor the activities of banks and conduct inspections to identify such violations. The NBU also has the right to impose fines and other sanctions on banks that violate the legislation

He noted that if the terminal property was pledged three times in violation of the law, both the borrower and the bank would be liable. 

A borrower can be held liable for fraud or breach of trust. A bank that fails to properly verify encumbrances may be liable for negligence and violation of banking regulations

He added that the bank is obliged to check the property pledged as collateral for the loan for any encumbrances. 

This is part of the due diligence process, which includes checking the legal cleanliness of the collateral. The bank should refer to the State Register of Encumbrances on Movable Property and the State Register of Rights to Immovable Property to ensure that there are no other creditors involved

According to him, if the property is already encumbered with a pledge, the bank cannot issue a loan against that pledge without the consent of the first creditor. In case the property is encumbered twice, it is also impossible to issue a third loan without the consent of the previous two creditors. Kasyanenko noted that this is due to the principle of priority of satisfaction of pledge creditors' claims enshrined in the legislation.

At the same time, the lawyer emphasized that a company may not dispose of property pledged without the lender's consent. This applies to the sale, lease or other disposal of property. Violation of this rule may lead to the invalidation of such transactions and the imposition of penalties on the company.

Kasyanenko also added that a bank has no right to collect property from a debtor if it is arrested in the framework of criminal proceedings. In such a case, the resolution of the criminal case is a priority, and only after that it is possible to satisfy the creditor's claims. If the bank tries to collect the arrested property, it may be held liable for violation of the legal procedure.

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, has been pledged to the U.S. fund since 2019.

And when Groza and Naumenko probably decided not to pay back the $75 million loan, they took a loan from the Ukrainian banks Vostok and Pivdenniy on the security of 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 maintain control over the largest gates of gray exports in 2021-2023. It is not excluded that Vadim Morokhovsky, 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 UNN sources, Groza and Naumenko's loan agreement stipulated that they had to coordinate any actions on Olympex property with American creditors.