Cintia Solé
Lawyer at Marcos Martins Advogados
In a recent judgment handed down by the 3rd panel of the Superior Court of Justice, in Special Appeal No. 1853347 / RJ (2019/0206278-0), the controversy over the start of the two-year period for closing judicial reorganization was settled.
Although art. 61 caput of Law 11.101/05 establishes the date of ratification of the judicial reorganization plan as the starting date, it was questioned whether the period would start to run with the ratification of the addendum to the plan, especially when approved by the creditors and implied substantial changes to the plan, and would start to run from the date of the last change.
It should be clarified that, although Law 11.101/05 (LRF) does not expressly provide for the possibility of presenting addenda or a new plan after the approval of the judicial reorganization plan, the plan may be amended at a general meeting when objections to the plan presented by the creditors are raised, by virtue of articles 53 and 56 of the LRF.
In this sense, for the Rapporteur of the aforementioned Appeal, Justice Villas Bôas Cueva, given the volume of reorganized companies that seek the Courts to fulfill their obligations in ways other than the plan because they still believe in their recovery, the understanding has been established for the admission of the alteration of the plan, which is why the fact that there is no answer in the LRF about the beginning of the counting of the period for the closure of the judicial reorganization in cases where there is an alteration after its approval is emphasized.
However, for the Rapporteur, the approval of the Judicial Reorganization Plan is the main objective of the process and, once achieved, will imply the closure of the initial execution phase, at which point the proposals must be executed and the company returned to normal, so that the presentation of amendments to the judicial reorganization plan is inferred both from its compliance and the occurrence of a supervening situation that implied its modification admitted by the creditors, with no break in the execution.
Thus, the Superior Court recognized that there is no justification for modifying the initial term for counting the two-year period for closing the Judicial Reorganization, and should maintain the understanding that its counting will start from the date of approval of the judicial reorganization.
Marcos Martins Advogados is attentive to this matter and is ready to act in the defense of collection actions and foreclosures against companies undergoing Judicial Reorganization to help them face this moment of crisis, which has been aggravated by the Covid-19 pandemic.
