Nathália Guedes Brum
Lawyer at Marcos Martins Advogados Associados
In a recent decision, the Third Panel of the Superior Court of Justice (STJ)[1] denied a request by a group of companies undergoing judicial reorganization to include claims arising from a bank guarantee in the list of creditors, due to the extraconcurrence of the contested claim.
The reorganized companies filed a special appeal requesting reform of the Court of Justice’s decision to include in their judicial reorganization process claims arising from surety contracts, for a guarantee provided in their favor, on the grounds that the instrument was signed with the financial institution before the reorganization request.
Justice Nancy Andrighi, who reported the appeal to the STJ, clarified that even though the contract to provide a guarantee to guarantee an obligation contracted with a third party was signed with the financial institution before the guarantor filed for judicial reorganization, the latter only became a creditor of the reorganized company after its default.
The Judge emphasized that
In suretyship, until the guaranteed obligation is not breached by the debtor, there is no outflow of cash from the guarantor’s sphere of assets to that of the creditor, which is essential for the constitution of its claim against the guarantor.
In the specific case, the guarantor financial institution only paid off the debt defaulted on by the guarantors, after they had already filed for reorganization, and it is therefore a credit constituted later.
Thus, the Third Panel of the STJ unanimously dismissed the special appeal of the reorganized companies, on the grounds that the existence of the legal transaction is not to be confused with the constitution of the credit itself, and that only obligations constituted before the request for judicial reorganization are subject to its effects, under the terms of article 49 of Law 11.101/05.
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[1] STJ. REsp nº 1.860.368 – SP (2019/0234794-0). 3rd Panel. Rapporteur: Justice Nancy Andrighi. Date of judgment: 05/05/2020.
