Sergey Petrovich Poymanov and Aleksey Vladimirovich Bazarnov

NOT FOR PUBLICATION
UNITED STATES BANKRUPTCY COURT
SOUTHERN DISTRICT OF NEW YORK
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In re: 	: 	Chapter 15
:
SERGEY PETROVICH POYMANOV, 	: 	Case No. 17-10516 (MKV)
:
Debtor in a Foreign Proceeding. 	:
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DECISION ON PPF MANAGEMENT LLC’S
MOTION TO UPDATE THE COURT AND TO REOPEN THE RECORD
APPEARANCES:
WHITE & CASE LLP
Counsel for Aleksey Vladimirovich Bazarnov, as Petitioner
1221 Avenue of the Americas
New York, New York 10020
By: 	Owen C. Pell, Esq.
Laura J. Garr, Esq.
Alice Tsier Esq.
-and-
Southeast Financial Center, Suite 4900
200 South Biscayne Blvd.
Miami, Florida 33131
By: 	Richard S. Kebrdle, Esq.
Jason Zakia, Esq.
Matthew A. Goldberger, Esq.
GREENBERG TRAURIG, LLP
Counsel for PPF Management LLC
Met Life Building
200 Park Avenue
New York, New York 10166
By: 	Alan J. Brody, Esq.
Caroline J. Heller, Esq.
-and-
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2101 L. Street, N.W.
Suite 1000
Washington, D.C. 20037
By: 	Sanford M. Saunders Jr., Esq.
Nicoleta Timofti, Esq.
MARY KAY VYSKOCIL
UNITED STATES BANKRUPTCY JUDGE
Aleksey Vladimirovich Bazarnov (the “Petitioner”), the financial administrator appointed
by the Commercial (Arbitrazh) Court of the Moscow Region (the “Russian Court”) in the
insolvency proceeding of Sergey Petrovich Poymanov (“Poymanov”) pending in Russia (the
“Russian Insolvency Proceeding”) pursuant to Russian Federal Law No. 127-FZ “On Insolvency
(Bankruptcy)” (the “Russian Bankruptcy Law”), has moved for recognition of the Russian
Insolvency Proceeding as a “foreign main proceeding” under Chapter 15 of the Bankruptcy Code
and a finding, pursuant to section 1520 of the Bankruptcy Code, that an action commenced by
PPF Management LLC (“PPF”) against the Petitioner and various other defendants in the United
States District Court for the Southern District of New York (the “SDNY Action”) is subject to
the automatic stay. (Verified Petition for Recognition of Foreign Main Proceeding and Motion
for Order Granting Related Relief Pursuant to 11 U.S.C. §§ 1515, 1517 and 1520 (the “Verified
Petition” or “V. Pet.”) [ECF No. 2]) PPF opposes both recognition of the Russian Insolvency
Proceeding and the Petitioner’s request for a finding that the SDNY Action is subject to the
automatic stay. (Objection of PPF Management LLC to Petition for Recognition of Foreign
Main Proceeding and Motion for Order Granting Related Relief Pursuant to 11 U.S.C. §§ 1515,
1517 and 1520 (the “Obj.”) [ECF No. 11]) The Court conducted a two-day evidentiary hearing
(together, the “Evidentiary Hearing”), during which it heard testimony from the Petitioner and
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two witnesses who provided testimony concerning Russian Bankruptcy Law. The Court also
heard expert testimony concerning, as a general matter, a form of corporate raiding in Russia that
is commonly referred to as “reiderstvo.”
After the Evidentiary Hearing had concluded and the parties had submitted their proposed
findings of fact and conclusions of law, but before final oral arguments on the Verified Petition,
PPF filed the motion now before the Court, seeking to reopen the evidentiary record to introduce
additional evidence it contends the Court should consider in connection with its ruling on the
Verified Petition and PPF’s objections thereto (the “Motion” or “Mtn.”). [ECF No. 56] The
Petitioner opposes the Motion (the “Petitioner’s Opposition”). [ECF No. 59] The Court held a
hearing on the Motion and has considered the arguments made at the hearing, as well as the
Motion, the Petitioner’s Opposition and PPF’s reply to the Petitioner’s Opposition. 	On July 19,
2017, the Court issued an Order Partially Granting PPF Management LLC’s Motion to Update
the Court and to Reopen the Record (the “Order”), pursuant to which the Court granted PPF’s
request to reopen the Record, granted PPF’s request to admit the Assignment Related Evidence
(defined below) and denied PPF’s request to admit the Nogotkov Letter (defined below) and the
Gureev Evidence (defined below). As provided in the Order, this Decision sets forth the
rationale for the findings and conclusions contained in the Order.
DISCUSSION
PPF’s Motion is brought under Rule 59(a)(2) of the Federal Rules of Civil Procedure,
titled New Trial; Altering or Amending a Judgment, which is applicable here pursuant to Rule
9023 of the Federal Rules of Bankruptcy Procedure. Although FRCP 59 does not explicitly
authorize a court to reopen the record prior to the issuance of a judgment, there is no doubt that
the court has discretion to reopen the record to allow a party to submit additional evidence. See
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Hyperlaw, Inc. v. West Publishing Co. (In re Matthew Bender & Co., Inc.), 158 F.3d 674 (2d Cir.
1998), Romeo v. Sherry, 308 F. Supp. 2d 128, 138-39 (E.D.N.Y. 2004). In deciding such a
motion, courts consider the relevance and probative value of the additional evidence sought to be
admitted, the reason for the moving party’s failure to introduce the evidence earlier, whether the
opposing party has had an opportunity for cross-examination, and the extent to which the
opposing party may be prejudiced by admission of the proposed evidence. See In re Matthew
Bender & Co., Inc., 158 F.3d at 679 (citing Garcia v. Woman’s Hosp., 97 F.3d 810, 814 (5th Cir.
1996)); Romeo v. Sherry, 308 F. Supp. 2d at 139.
A. The Untimeliness of the Request
Relevant to the Court’s decision regarding whether to reopen the Record is the degree to
which the movant exercised diligence in discovering the new information or documents it seeks
to introduce and acted promptly in seeking relief. The Court finds that, with the exception of the
Assignment Related Evidence (which relates to events that transpired after the Evidentiary
Hearing), PPF failed to act in a timely manner and to exercise reasonable diligence to obtain the
new evidence.
Approximately one month after the Petitioner served PPF with notice of the Verified
Petition, and a mere three business days before the Evidentiary Hearing on the Verified Petition
was scheduled to commence, PPF served a notice seeking to depose the Petitioner and the
production of 23 categories of documents (together, the “Discovery Requests”). 	The Petitioner
moved to quash the Discovery Requests (the “Motion to Quash”) and PPF moved to compel
compliance with the Discovery Requests (the “Motion to Compel”). PPF opposed the Motion to
Quash and the Petitioner opposed the Motion to Compel (the Motion to Quash, the Motion to
Compel and the oppositions thereto, collectively, the “Discovery Filings”). Given the lateness of
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the Discovery Requests and the ensuing Discovery Filings, the competing Motion to Quash and
Motion to Compel came on for hearing after the first day of the Evidentiary hearing (the
“Discovery Hearing”). Having reviewed and considered the Discovery Requests, including each
of the 23 requests for the production of documents (collectively, the “Document Requests”) and
the deposition notice, the Discovery Filings and the arguments of the parties at the Discovery
Hearing, the Court issued its ruling from the bench at the Discovery Hearing.
The Court found that PPF failed to provide adequate notice in accordance with the
Federal Rules, incorporated by the Bankruptcy Rules, of its intent to depose the Petitioner. In
addition, the Court noted that, at the first day of the Evidentiary Hearing, PPF had cross-
examined the Petitioner for approximately three hours. Before excusing the Petitioner from the
witness stand, the Court asked PPF if it had any further questions for the Petitioner, and PPF’s
counsel replied that he did not. Accordingly, the Court found that PPF had been afforded a full
opportunity to examine the witness and granted the Motion to Quash with respect to the
deposition of the Petitioner. The Court also found that the majority of the Document Requests
were overly broad, not tailored to lead to the production of documents relevant to the issues
before the Court in connection with the Verified Petition, sought publicly available information,
were not proportionate to the needs of this Chapter 15 case, and appeared to be calculated to
gather information to support PPF’s contentions solely in connection with the SDNY Action. 	In
addition, the Court agreed with the Petitioner’s contention that, at the time PPF served its
Discovery Requests, PPF had been on notice of the first Evidentiary Hearing date for
approximately one month, and that PPF’s attempt to seek discovery less than three business days
before the first Evidentiary Hearing date would serve to delay a ruling on the Verified Petition,
particularly when PPF could have sought discovery at an earlier point in the Chapter 15 case
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(citing Bankruptcy Rule 1018). The Court ruled that the Petitioner need only provide documents
in response to two of the 23 document requests.
The Court now finds that PPF again has failed to act diligently in pursuing the new
evidence, in waiting three weeks after the close of the evidentiary record in connection with the
Verified Petition, and nearly fifty days after its opposition to the Verified Petition, to seek to put
the new documents before the Court.
B. Evidentiary Issues
The Court notes that, with the exception of the Assignment Related Evidence, there are
several serious issues as to the admissibility of the new evidence PPF seeks, belatedly, to add to
the Record. Specifically, there are problems with respect to authentication of such new evidence
and the documents are rank hearsay. PPF has made no attempt to address these evidentiary
issues, and opening the Record to allow PPF to bring in witnesses to address these evidentiary
issues would add further delay to resolution of the Verified Petition. Such additional delay
would not only be prejudicial to the Petitioner, but also would be inconsistent with section
1517(c) of the Bankruptcy Code, which provides that “[a] petition for recognition of a foreign
proceeding shall be decided upon at the earliest possible time.” 11 U.S.C. § 1517(c).
C. The New Evidence
PPF moves to reopen the evidentiary record to introduce three categories of additional
evidence: (1) the Nogotkov Letter; (2) the Gureev Evidence and (3) the Assignment Related
Evidence (each defined and analyzed below).
1. 	The Nogotkov Letter
PPF seeks to introduce a letter, dated April 4, 2017, from Kirill Nogotkov (“Nogotkov”),
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the receiver of Pavlovskgranit-Invest, a company wholly-owned by Poymanov (“P-Invest”),1 to
Alexander Ivanovich Bastrykin (“Bastrykin”), the Head of the Investigative Committee of the
Russian Federation, which PPF equates to the Russian version of the U.S. F.B.I. (the “Nogotkov
Letter”).2 In the letter, Nogotkov informs Bastrykin that:
(a) on March 21, 2017, Nogotkov submitted a statement to the Main Investigative
Department for Moscow of Russia’s Investigative Committee regarding unlawful
actions that Poymanov undertook that inflicted approximately 1 billion rubles worth
of damages upon P-Invest and its creditors;
(b) Poymanov has repeatedly relied on his corrupt connections and administrative
resources to terminate investigation of criminal cases instituted concerning his
criminal acts;
(c) in December 2013, an investigation of a criminal case concerning Poymanov’s sale of
certain property was discontinued, but on April 2, 2014, a Russian court invalidated
the order to refuse to institute a criminal case against Poymanov with respect to such
sale;
(d) as of the date of the Nogotkov Letter, Poymanov had been charged under the criminal
code and the case had been turned over to a Russian court in the city of Voronezh;
and
1 Poymanov is a former majority shareholder of Open Joint Stock Company
Pavlovskgranit (“P-Granit”), a Russian company engaged in, inter alia, the production of granite.
(V. Pet. ¶ 4; Obj. ¶ 7) On August 4, 2008, Poymanov caused his wholly-owned company, P-
Invest, to enter into a credit agreement (the “P-Invest Credit Agreement”), as a borrower, with
Sberbank of Russia (“Sberbank”). Under the P-Invest Credit Agreement, P-Invest was permitted
to borrow up to approximately 5.1 billion rubles in order to finance Poymanov’s acquisition of
the remaining shares of P-Granit, with the exception of approximately one percent of the
outstanding shares (the “Remaining P-Granit Shares”). (V. Pet. ¶ 5; Obj. ¶ 8) Poymanov used
the proceeds of funds advanced under the P-Invest Credit Agreement to acquire the Remaining
P-Granit Shares, and thereafter, owned approximately ninety-nine percent of the shares of P-
Granit. (V. Pet. ¶ 5) P-Invest subsequently defaulted on its obligations under the P-Invest Credit
Agreement (V. Pet. ¶ 8), and thereafter, an insolvency proceeding was commenced with respect
to P-Invest (V. Pet. ¶ 8). Nogotkov is the receiver appointed by the Russian court in P-Invest’s
insolvency proceeding. (Mtn. ¶ 10)
2 A copy of the Nogotkov Letter, together with an English translation of the letter, is
attached as Exhibit E to the Declaration of Kirill Zhukov, which is Exhibit A to the Motion (the
“Zhukov Decl.”).
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(e) in November 2016, PPF commenced the SDNY Action against Sberbank, seeking
over 40 billion rubles, and that PPF was registered just one day before the SDNY
Action was commenced.
(Zhukov Decl. Exh. E) In addition, in the Nogotkov Letter, Nogotkov asked Bastrykin to
personally oversee an audit and examination of the circumstances and facts set forth in the
complaint due to “well-grounded fears” that Poymanov “may use corrupt connections and
administrative resources available to him in order to obstruct investigation of facts set forth in
the statement submitted to the Main Investigative Department for Moscow of Russia’s
Investigative Committee . . . .” (Zhukov Decl. Exh. E)
PPF commenced the SDNY Action by a complaint, dated November 22, 2016 (the
“Complaint”). The Complaint asserts claims that Poymanov and his former wife, Irina
Podgornaya (“Podgornaya”), allegedly had assigned to PPF. (Obj., Exh. C, Complaint ¶ 12) For
ease of discussion, the Court will refer to this purported assignment as the PPF Assignment. The
defendants in the SDNY Action include, inter alia, Sberbank, Nogotkov, and the Petitioner.
(Complaint ¶¶ 14, 15, 25, 26, 30, 31) The crux of the Complaint is, in short, that the defendants
conspired to engage in a “reiderstvo” against Poymanov, Podgornaya and P-Granit, to strip
Poymanov and Podgornaya of their interests in P-Granit for the ultimate purpose of eliminating
P-Granit and seizing its assets. 	(Complaint ¶¶ 1, 2, 7)
PPF argues that the Court should reopen the Record to permit PPF to introduce the
Nogotkov Letter as relevant to PPF’s argument that recognition of the Russian Insolvency
Proceeding should be denied on public policy grounds. Section 1506 of the Bankruptcy Code
authorizes a court to refuse to take an action under Chapter 15 if such action would be
“manifestly contrary to the public policy of the United States.” 11 U.S.C. § 1506. Specifically,
PPF contends that the Nogotkov Letter, and its timing, constitute evidence that the Petitioner
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commenced this Chapter 15 case in bad faith, in order to thwart the SDNY Action, to further the
conspiracy to deprive Poymanov of his ownership interests in P-Granit and to retaliate against
Poymanov by generating criminal charges.
The request to reopen the Record to allow the Nogotkov Letter to be introduced into
evidence is denied. The letter is not relevant to the issues before the Court in connection with the
Verified Petition. There is no allegation that Petitioner participated in drafting the Nogotkov
Letter, the Petitioner is not copied on the letter, and he is not mentioned in the letter. There is no
evidence in the Record that the Petitioner is conspiring, or has conspired, with Nogotkov, and
even if the Petitioner were aware of the letter at the time it was sent, the letter does not prove that
the Petitioner commenced this Chapter 15 case to facilitate a conspiracy against Poymanov.
Accordingly, the Nogotkov Letter would have very low probative value, if any, in connection
with the Court’s decision on recognition of the Russian Insolvency Proceeding or PPF’s
opposition to recognition on the basis that such recognition would be manifestly contrary to the
public policy of the United States. Nor is the Nogotkov Letter relevant to any other issues
concerning the propriety of actions taken by the Petitioner in connection with the Russian
Insolvency Proceeding or this Chapter 15 case.3
2. 	The Gureev Evidence
PPF also seeks to introduce information concerning the finances and employment of Petr
Gureev (“Gureev”) 4 in support of its argument that the Verified Petition should be denied.
3 The definition of “foreign representative” in section 101(24) does not contain a
disinterested requirement. However, in determining whether to grant the relief requested in the
Verified Petition, the Court has not ignored PPF’s allegations concerning the Petitioner’s
conduct. In any event, the Nogotkov Letter does not support a finding of impropriety on the part
of the Petitioner.
4 Gureev has also been referred to as Gureev Petr Andreevich.
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Specifically, PPF contends that the foreign debtor – Poymanov – has failed to satisfy the
eligibility requirements of section 109(a), which provides, in relevant part, that only a person that
resides or has a domicile, a place of business, or property in the U.S. may be a debtor under the
Bankruptcy Code. 11 U.S.C. § 109(a). The Petitioner asserts that Poymanov has property in the
U.S. in the form of a retainer, which was funded by payments to Poymanov that the Petitioner
received, on Poymanov’s behalf, from Gureev (collectively, the “Gureev Payments”). The
Gureev Payments consist of two payments made by Gureev pursuant to two individual
agreements providing for the partial repayment of a debt owed by P-Invest to Poymanov
(collectively, the “Gureev Agreements”). PPF argues that the Gureev Payments and the
underlying Gureev Agreements are subject to attack under Russian law because they constitute a
“mock and sham” transaction. More specifically, PPF argues that the Gureev Agreements and
the Gureev Payments are transactions that are characterized as a third party debt repayment, but
in actuality, were nothing more than a gift given with the intent to manufacture property in the
U.S. for the purpose of satisfying the section 109(a) eligibility requirement.
The additional evidence that PPF wishes to introduce suggests that, as of 2015, Gureev
earned only a meager salary from his employer, Invest-Sintez LLC (“Invest-Sintez”) and that:
(a) Invest-Sintez’s sole shareholder is Umanda Holdings Ltd., Cyprus (“Umanda”);
(b) the director of Umanda is Dromaca Consultants Ltd. (“Dromaca”);
(c) Evgeina Kyprianou (“Kyprianou”) is a director of Dromaca;
(d) Kyprianou is also the director of Atlas Alpha Services Limited (“Atlas Alpha”); and
(e) at some unspecified time, Atlas Alpha provided a service to Nisoram Holdings
Limited (“Nisoram”), which is a company that is named as a defendant in the SDNY
Action and is alleged by PPF to have participated in the corporate raiding of P-Granit.
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PPF also wishes to introduce evidence showing that, the day after the Gureev Agreements were
signed, Gureev was promoted to the role of a general director.
In support of its contention that the Retainer Account does not constitute Poymanov’s
property within the meaning of section 109(a), PPF seeks to challenge the source of the Gureev
Payments and Gureev’s motivation in making the Gureev Payments. PPF argues that the Court
should reopen the Record to allow submission of this additional evidence (collectively, the
“Gureev Evidence”) on the theory that
[t]he Gureev Evidence is relevant to the issues of jurisdiction and
qualification for recognition because it sheds light on whether
Gureev had the financial ability to pay the 1.800.000 RUB debt from
personal resources and the funds Bazarnov testified he transferred
to the White & Case, LLP retainer account at Citibank constitute the
proceeds of a “mock and sham transaction” which would nullify any
possibility of the funds becoming property of the Debtor’s estate
under the Russian law.
(Mtn. ¶ 12(d))
PPF’s request to reopen the Record to admit the Gureev Evidence is denied because the
Gureev Evidence is not probative of whether the funds held in the retainer account constitute
Poymanov’s property and thereby satisfy the eligibility requirements of section 109(a). The fact
that PPF may have an argument that the Gureev Agreements and the payments made thereunder
may be avoidable as a “mock and sham” transaction under Russian law because Gureev (a)
lacked the financial capability to make the Gureev Payments from his own funds and/or (b) was
incentivized to make the Gureev Payments (or, impliedly, even given the funds to make the
Gureev Payments) by Invest-Sintez, Umanda, Dromaca, Kyprianou, Atlas Alpha or Nisoram
does not render the Gureev Evidence relevant. 	The sole issue arising under section 109(a) is
whether the money held in the retainer account is property of the foreign debtor. How that
property was acquired or why a third party gave the property to the foreign debtor is legally
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irrelevant for purposes of the section 109(a) issue before the Court. See, e.g., In re Octavier
Admin. Pty Ltd., 511 B.R. 361, 373 (Bankr. S.D.N.Y. 2014) (“Section 109(a) says, simply, that
the debtor must have property; it says nothing about the amount of such property, nor does it
direct that there be any inquiry into the circumstances surrounding the debtor's acquisition of the
property . . . .”) (footnotes omitted). In addition to the evidentiary infirmities with respect to the
Gureev Evidence, PPF’s new argument concerning the Gureev Evidence would require the Court
to draw one of many speculative inferences and is too tenuous to have any probative value with
respect to the Court’s determination of the foreign debtor’s property interests in the funds held in
the retainer account.
PPF also argues that the Court should reopen the Record to admit the Gureev Evidence as
probative with respect to PPF’s argument that recognition of the Russian Insolvency Proceeding
should be denied on public policy grounds. PPF contends that recognition of the Russian
Insolvency Proceeding would be manifestly contrary to the public policy of the United States
because the Chapter 15 case is part of an illegal conspiracy against Poymanov to strip him of his
interests in P-Granit, and ultimately, to eliminate P-Granit and seize its assets. Thus, PPF
contends that recognition of the Russian Insolvency Proceeding would be manifestly contrary to
U.S. public policy because it would aid in an illegal conspiracy against Poymanov. The Gureev
Evidence, taken together with all of the other evidence that now constitutes the Record, does not
even come close to supporting this argument. The alleged nexus between Gureev and Nisoram,
even assuming that Nisoram in fact conspired to deprive Poymanov and Podgornaya of their
interests in P-Granit, is too speculative and remote to support a conclusion that the Gureev
Payments and the commencement of this Chapter 15 case were part of any alleged conspiracy
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against Poymanov, much less that recognition of the Russian Insolvency Proceeding would be
manifestly contrary to the public policy of the United States.
3. 	The Assignment Related Evidence
The final new evidence that PPF seeks to introduce relates to the Petitioner’s motion in
the Russian Insolvency Proceeding for a determination that the PPF Assignment is invalid as a
matter of Russian Bankruptcy Law (the “Assignment Motion”). 	PPF seeks to update the Court
as to actions taken by the Russian Court with respect to the Assignment Motion. Specifically,
PPF wishes to inform the Court that the Russian Court (a) found that the Petitioner failed to
provide evidence as to the timing of Podgornaya’s acquisition of shares in P-Granit, (b) declared
a recess until May 16, 2017, and (c) on May 16, 2017, issued requests to the registrars of shares
to produce information concerning Podgornaya’s acquisition of shares in P-Granit by July 26,
2017, when the next hearing is scheduled to be held (collectively, the “Assignment Related
Evidence”).
The Court finds that the Assignment Motion is relevant to the Petitioner’s request for an
order determining that the SDNY Action is subject to the automatic stay because, if the PPF
Assignment is valid, then the claims asserted in the SDNY Action would belong to PPF, not
Poymanov, and therefore the SDNY Action would not be subject to the automatic stay. If, on the
other hand, the Russian Court were to determine that the PPF Assignment is not valid as a matter
of Russian Bankruptcy Law and accordingly the PPF Assignment is void, then at least the
portion of the claims asserted in the SDNY Action that belong to Poymanov, or otherwise should
be administered as part of the Russian Insolvency Proceeding, would be subject to the automatic
stay. The Assignment Related Evidence is therefore highly relevant to the issues before the
Court. Moreover, the developments of which PPF seeks to update the Record occurred after the
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conclusion of the Evidentiary Hearing, and thus could not have been introduced earlier. Finally,
since the Assignment Motion was filed on the Petitioner’s behalf in the Russian Insolvency
Proceeding, the Petitioner should be aware of the Assignment Related Evidence and is not
prejudiced by the Court’s taking these developments into consideration. 	Accordingly, the Court
has reopened the Record to allow consideration of the Assignment Related Evidence.
CONCLUSION
For the reasons discussed herein, PPF’s request to reopen the Record to admit the
Nogotkov Letter and the Gureev Evidence is denied, and PPF’s request to reopen the Record to
introduce the developments concerning the Assignment Motion is granted.
Dated: New York, New York
July 27, 2017	
s/ Mary Kay Vyskocil
Honorable Mary Kay Vyskocil
United States Bankruptcy Judge
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