“The cooperative has closed. What should I do?”: how deceived Krasnoyarsk investors can get their money back

Cases of termination of membership in a production cooperative

If necessary, a member of the artel has every right to leave its ranks.

The general rule in this case is that this decision can be made by him independently.

In addition, before finally deciding on leaving the cooperative, the participant must determine the appropriateness of this action. And if his decision remains unchanged, then it is necessary to notify the management structures of the organization about this at least 2 weeks in advance.

In accordance with Article 106.5 of the Civil Code of the Russian Federation, you can leave a cooperative either voluntarily or forcibly.

Several of the most common cases of leaving a cooperative stand out:

• A member of the cooperative makes a voluntary decision to leave;
• Unexpected death of a cooperative member;
• Transfer of a share to a third party or another member of the cooperative;
• Expulsion from the organization.

In addition, according to the provisions of Article 111 of the Civil Code of the Russian Federation, membership in a cooperative can be terminated at the initiative of other members of the company if it is determined that a particular member of the association does not participate in the activities of the company and improperly fulfills all the duties assigned to him.

Change of founders: how the procedure is carried out

Based on the characteristics of such organizations, change of founders is not the correct term. Persons who participated in the establishment process remain recorded in the documents until the organization ceases to exist. It is appropriate to use a change in the members of the board and the election of a new chairman.

To do this you need:

• admit a new member to the cooperative. These may include representatives of third party organizations providing services. Their number cannot exceed 20% of the total number of members of the organization;
• acceptance of a new member to the board with appointment to the position of chairman;
• withdrawal of the remaining members from the cooperative. The law limits the minimum number of members of cooperatives. LCD requires at least 5 participants.

If difficulties in implementing a change of members of a cooperative are due to the complexity of the procedures established by law, you should enlist the support of competent specialists. They will provide assistance and promptly solve the most complex legal problems associated with this organizational and legal form.

Citizens can not only unite into production cooperatives or commercial organizations, but also leave them under certain circumstances. Termination of membership in a cooperative requires a reason and return of the share. If the participant has registered ownership of the property, the fee will not be refunded.

Implementation of the procedure for voluntary termination of membership

The issue of voluntary withdrawal of a member of a cooperative is regulated in accordance with Article 106.5 of the Civil Code of the Russian Federation. It states here that any participant in a cooperative association has the right to leave the company.

However, before making a final decision, the exit applicant must carefully consider the consequences of his decision, and determine whether his decision is appropriate and whether it will cause him any negative impacts.

To leave the cooperative, a member of the society must write an official written appeal to the management structures of the company at least 2 weeks before the final exit of their cooperative.

If other members of the cooperative do not have any complaints and they agree to satisfy the applicant’s request, then the withdrawal process will be completed within 14 days. During this period, all issues relating to the share and its monetary value, as well as the timing of payment of the share of capital belonging to the exit applicant, will be resolved.

Grounds for the withdrawal of a shareholder from members of the cooperative

The cooperative structure is purely commercial. And everyone unites within its framework on a voluntary basis. This means that there is also a free exit mechanism provided for by law. If you refer to the provisions of the Civil Code (Article 106.5), you can leave the cooperative:

1. Forcibly.
2. Voluntarily.

Most often, several standard bases are used for this:

1. Unexpected death of a shareholder.
2. Voluntary decision.
3. Transfer of your share to another shareholder or third party.
4. Exception.

As for the procedure for leaving the cooperative, it is established by current legislation and special regulations. There is a sequence of actions for each case.

Implementation of the procedure for forced termination of membership

In some cases, membership in an artel may be forcibly terminated. The possibility of this solution is established in Article 111 of the Civil Code of the Russian Federation.

This standard states that if it is determined that a member of a production society improperly fulfills his duties or does not participate in the life of the structure, then by decision of the remaining members of the society he can be expelled from the cooperative.

In this case, the general decision of the founding council of the commercial structure must be announced to the member of the cooperative. Within the period established by law, the expelled community member will receive his share in monetary terms and will finally leave the structure.

In addition, forced exclusion from a cooperative can be applied to those persons who are simultaneously members of similar partnerships.

Grounds for consideration by the general meeting of the cooperative of the issue of expulsion of a participant

In accordance with the current legal framework in Russia, serious circumstances must exist to initiate the procedure for the forced expulsion of a member of a cooperative.

This procedure is applicable only in cases where there is a violation of the current legislation or a participant in the artel wishes to leave its ranks on his own.

In order to initiate the procedure for expelling a participant from a cooperative, there must be some grounds, in particular:

• A member of the artel does not comply with the internal policies of the company, in particular does not take part in the economic activities of the structure;
• A member of the company grossly violates all the obligations that were assigned to him in accordance with the current charter of the artel;
• The participant refuses to take a direct part in solving the problems of the cooperative community, and avoids general meetings at which key decisions are made for the further activities of the commercial structure;
• The actions or inaction of a cooperative participant led to the organization suffering losses and gaining negative experience in doing business;
• A member of a cooperative takes part in a similar economic structure, where he also has his own share;
• A member of a manufacturing company discredits the activities of the company, or is found guilty of disclosing internal information that is confidential.

The procedure for paying a share or its value to a participant who has left the cooperative

The issue of payment of the cost of a share upon termination of membership in an artel is regulated by Article 32 of Federal Law No. 215 “On Housing Savings Cooperatives”.

In accordance with the established rules, the real value of the share in monetary terms is determined on the day of the end of the financial year, during which it became necessary to determine the specific amount of the share due to the withdrawal of a participant from the cooperative society. It is worth noting that the share amount will be calculated based on the company’s profitability indicators and taking into account its credit obligations.

Thus, the company's net asset will be calculated as the difference between the total value of the company's assets in monetary terms and the sum of all loan obligations. And based on the established amount of net assets, the specific share of the participant will be determined as a percentage, which will be transferred to him.

Current legislative norms state that the cost of the share must be paid to the participant who left the cooperative within 6 months from the end of the financial year, or within the period specified in the statutory documentation of the production company.

In some situations, the monetary value of the share may be changed, either upward or downward.

However, in any case, the founding council of the organization will have to prove the feasibility of these changes.

If there is a situation where a member of the cooperative dies, then the full value of the monetary share belonging to him in the company will be transferred to the official heir after a 6-month period from the date of death of the cooperative member, and after the heir assumes inheritance rights.

If the cooperative is found to have violated the statutory process for allocating shares in monetary terms, or to have attempted to deliberately understate the value of net assets, then a fine will be imposed on the company, and the withdrawing member of the company will have the right to demand a penalty from the cooperative.

5.4. Expulsion from the cooperative

Clause 3, Art. 14 of Law No. 190-FZ establishes that the grounds for exclusion are the failure of the shareholder to fulfill his statutory duties. Therefore, when determining the grounds for exclusion, you must correlate them with the obligations of the shareholder as defined by law and the charter. Just like the decision to admit a shareholder to the cooperative, the decision to expel him is made by the Board.

The condition defining the grounds and procedure for excluding a shareholder from the cooperative is recommended to be stated in the following approximate wording:

A shareholder may be excluded from the Cooperative in the following cases:

• Failure to fulfill or untimely fulfillment of the shareholder’s obligations established by the Charter, internal regulations and agreements on participation in mutual financial assistance:

Note:

The condition corresponds to the obligations of the shareholder established by paragraphs. 1,4, 5, clause 2, art. 13 of Law No. 190-FZ. The basis corresponds to the basis for the emergence of the right to demand early repayment of the loan, established by clause 2, art. 811 Civil Code.

• Violations of repayment schedules for loans provided from the mutual financial assistance fund, non-payment or incomplete payment of loan payments made more than three times within twelve months, even if each delay or underpayment is insignificant, or a single delay in payment in a significant amount for more than 90 days. The criterion of significance in determining the amount of underpayment is 5%.
• Similar violation of deadlines for payment or incomplete payment of share and (or) membership fees.
• A single delay in payment of repayment and (or) loan servicing for more than 90 days1.
• Similar one-time delay in payment of shares and (or) membership fees.

Note:

The grounds for the exclusion of a shareholder in connection with his delays in repaying the loan can be correlated with the grounds for the emergence of the right to demand early repayment of the loan and (or) termination of the contract, established by clauses 2, 3 of Art. 14 of Law No. 353-FZ “On consumer credit (loan)”.

• Violations of repayment schedules for loans provided from the Mutual Financial Assistance Fund:
• delays in payment of regular payments on a long-term loan, duration (total duration) of more than sixty calendar days during the last one hundred and eighty calendar days;
• delays in payment of regular payments on a short-term loan concluded for a period of less than sixty calendar days, with a duration (total duration) of more than ten calendar days;
• Similar violation of deadlines for payment or incomplete payment of share and (or) membership fees.

The criterion of significance in determining the amount of underpayment is 5%.

• Concealment or alienation of property pledged as collateral, evasion of contacts with Cooperative employees during the period of using the loan.

Note:

This basis corresponds to the basis for the emergence of the right to demand early repayment of the loan, established by Art. 813 Civil Code.

• Use of the loan for purposes other than those specified in the loan application and established by the agreement.

Note:

This basis corresponds to the basis for the emergence of the right to demand early repayment of the loan, established by clause 2, art. 814 Civil Code and clause 13, art. 7 of Law No. 353-FZ “On consumer credit (loan)”.

• Providing, as part of the application documentation for a loan, deliberately unreliable information about one’s financial and property status, the composition and property status of guarantors, and the intended purpose of the loan.
• The inability of the Cooperative to carry out its activities or significant difficulties in its implementation as a result of the actions (inaction) of the shareholder.

Note:

• Since the cooperative operates on the principle of self-government, which presupposes the participation of all its shareholders in managing the affairs of the cooperative, objective difficulties in carrying out activities arise if a shareholder ceases active membership in the cooperative. In a certain period, an increase in the proportion of shareholders who are nominally registered in the cooperative, but do not participate in mutual financial assistance operations, may make it impossible to form a quorum of the general meeting, which will lead to the illegitimacy of the decisions it makes. On the other hand, termination of active membership in a cooperative does not allow identification of shareholders in the regime established by the legislation “On combating the legalization (laundering) of proceeds from crime.”
• The termination of active membership in a cooperative in itself cannot serve as a basis for the exclusion of a shareholder. But if the circle of duties of a shareholder defined by the charter includes the obligation to maintain active membership and at least once a year to confirm his interest in continuing to participate in the cooperative, then the shareholder’s neglect of such a duty provides grounds for his exclusion from the cooperative.
• Along with the general basis for making a decision to exclude a shareholder, the charter may establish a period during which procedures preceding such a decision are carried out: notifying the shareholder of the need to confirm interest in further participation in the cooperative, transferring his shareholding and other funds transferred to the cooperative to the “dormant” category and only then – making a decision on exclusion.

An approximate version of the condition establishing the procedure prior to the exclusion of a shareholder in connection with the termination of active membership in the cooperative:

• Difficulties in the implementation of its activities by the cooperative arise, in particular, when the active membership of a shareholder in the Cooperative is terminated and the corresponding statutory obligation is not fulfilled (the responsibility of the shareholder established by clause ____ of the Charter). This causes difficulties in interacting with this shareholder, sending him information about the general meeting, ensuring a quorum when making decisions, regularly updating the shareholder’s identification data and complying with other modes of interaction with the shareholder established by law, the charter and internal regulations.

To prevent such cases, the Management Board regularly evaluates the activity of shareholders. If a shareholder did not participate in mutual financial assistance for one year2 and did not confirm the accuracy of his identification data recorded in the register during this period, the Board makes a decision to recognize his shareholding and other funds transferred to the cooperative as “dormant”. Notification of this decision is sent to the address of this shareholder registered in the register or by sending an SMS message to his mobile phone number registered in the register3. The basis for expulsion of a shareholder from the Cooperative arises if, sixty days after sending such notice, the shareholder does not confirm his interest in maintaining membership in the Cooperative.

Information about shareholders whose savings or other funds transferred to the Cooperative were recognized as “dormant” and who were subsequently excluded from the Cooperative on the above grounds are recorded in the register of shareholders of the Cooperative for five years. If subsequently the shareholders (or his legal successors) apply to restore their membership in the Cooperative, the Board makes an appropriate decision without payment of the entrance fee by the shareholder (or his legal successor) restoring membership. The value of the shareholder's savings accounted for and other funds transferred by him to the Cooperative is restored in an amount equivalent to the amount on the date of the decision to exclude this shareholder from the Cooperative. If the restored value of the share accumulation is less than the amount of the minimum share contribution established on the date of filing the application for restoration of membership in the Cooperative, the shareholder must pay the missing amount.

The following description of the grounds for exclusion of a shareholder:

• Refusal to make an additional contribution to cover the losses of the Cooperative in accordance with the decision of the general meeting.
• Foreclosure of the share accumulation or debiting from its value the shareholder's unfulfilled obligations if, as a result of such collection (debit), the value of the share accumulation becomes less than the amount of the mandatory (minimum) share contribution established by the charter, made upon joining the cooperative.
• Failure of the shareholder to fulfill other obligations established by law, the charter and internal regulations.

Note:

Clause 2, Art. 26 of Law No. 190-FZ provides for the possibility of foreclosure on the debts of a shareholder on his shareholding “if there is insufficient other property to cover such debts...”.

The decision to exclude a shareholder from the Cooperative is made by the Board, on the basis of which an entry is made in the register indicating the details of the Board’s decision and the grounds on which it was made. The shareholder is considered excluded from the Cooperative from the moment this entry is made in the Register.

A shareholder excluded from the Cooperative by decision of the Board has the right to appeal this decision to the Court.

Possibility for a cooperative member to transfer his share or part thereof to another person

The right of cooperative participants to transfer their share or part of it to other persons arises in situations where new participants are introduced into the society, in respect of whom the same rules will apply.

However, some restrictions still exist. In particular, the transfer of a share to a third party is possible in cases where this does not contradict the company’s policy and there is consent of all participants in the company.

At the same time, in the event of alienation of a share by a third party, the cooperative members receive a preferential right to repurchase it.

If the situation concerns a deceased member of the cooperative, then the share belonging to him can be transferred to the heir, if this is permitted by the current statutory documentation. Otherwise, monetary compensation will be paid in the form of a proportionate value of the share.

Author of the article

But why should I be afraid, since I have insurance?

At the stage of concluding an agreement with a consumer credit cooperative, you were most likely promised that your deposit was insured. However, as a rule, an insured event occurs only in the event of bankruptcy of the CCP. At the same time, the cooperatives themselves do not seek to go bankrupt, since they will incur serious costs. In total, CPCs must spend at least half a million rubles to go bankrupt.

The insurance company does not bear any personal responsibility to the depositors, so the cooperative simply closes, and people are left with their problem alone.