Priscilla Folgosi Castanha
Lawyer at Marcos Martins Advogados
Although article 59 of Law 11.101/05¹ provides that the approval of the judicial reorganization plan implies the novation of credits, binding the debtor and all creditors subject to it, it reserves the preservation of guarantees, whether real or fiduciary.
Therefore, the judicial reorganization plan does not affect the creditor’s right to enforce joint and several debtors or co-obligors, even if the claim is subject to the effects of the reorganization. Thus, the approval and ratification of the plan does not prevent the continuation of collection actions and executions filed against guarantors, sureties or co-obligors in general.
Although seemingly inconsistent, this is the understanding summarized by the Superior Court of Justice:
Precedent 581 – The judicial reorganization of the principal debtor does not prevent the continuation of actions and executions filed against third-party joint debtors or co-obligors in general, for a foreign exchange guarantee, real or fidejussório. (Precedent 581, SECOND SECTION, judged on 09/14/2016, DJe 09/19/2016).
It should be noted that this understanding allows the creditor to demand the full amount of the debt from the guarantor or co-obligor, and only the compensation of the amount already received in compliance with the reorganization plan is authorized.
In this sense, see the emblematic judgment handed down by Justice Luis Felipe Salomão:
CIVIL AND CORPORATE LAW. JUDICIAL REORGANIZATION.
RATIFICATION OF THE PLAN. SUI GENERIS NOVATION. EFFECTS ON THIRD PARTY CO-OBLIGORS. EXTINCTION OF EXECUTION. NOT APPROPRIATE. MAINTENANCE OF GUARANTEES. ARTICLES. 49, § 1 AND 59, CAPUT, OF LAW N. 11.101/2005.
1. The novation provided for in civil law is quite different from that governed by Law No. 11.101/2005. While civil novation, as a rule, extinguishes debt guarantees, including in rem guarantees provided by third parties outside the pact (art. 364 of the Civil Code), novation under the reorganization plan, on the other hand, maintains guarantees (art. 59, caput, of Law 11.101/2005), especially in rem guarantees, which will only be removed or replaced “with the express approval of the creditor holding the respective guarantee”, when the recorded asset is sold (art. 50, § 1). Thus, the judicial reorganization plan operates a novation sui generis and is always subject to a resolutive condition, which is the eventual non-compliance with what was agreed in the plan (art. 61, § 2, of Law 11.101/2005).
2. Therefore, even though the judicial reorganization plan novates the debts subject to it, the in rem or fiduciary guarantees, as a rule, are preserved, a circumstance which enables creditors to exercise their rights against third party guarantors and imposes the maintenance of actions and executions filed against guarantors, sureties or co-obligors in general.
3. Indeed, there would be no logic in the system if the preservation of the rights and
the system if the preservation of creditors’ rights and privileges against co-obligors, guarantors and persons liable for recourse (art. 49, § 1, of Law No. 11.101/2005) only concerned the
(REsp 1326888/RS, Rel. Minister LUIS FELIPE SALOMÃO, FOURTH COURT, judged on 04/08/2014, DJe 05/05/2014)
Therefore, as a rule, despite the novation effected by the judicial reorganization, the guarantees provided by third parties, usually partners of the company under reorganization, are preserved, and the possibility of pursuing collection actions or executions filed against joint and several debtors or co-obligors in general is preserved, even after the judicial reorganization has been granted or the reorganization plan of the main debtor has been approved.
However, as it is an available right, there is no legal impediment to the reorganization plan providing that its approval will imply the release and discharge of all fidejussórios guarantors, including by virtue of sureties and guarantors, that have been provided to creditors to ensure the payment of any credit subject to the effects of the reorganization, i.e. that the novation of the obligation applies to both the main creditor and the co-obligor or guarantor.
It should be noted, however, that in exercising control over the legality of the reorganization plan, the Judiciary has restricted its application to creditors who were present at the General Meeting of Creditors and expressly agreed to it. In this way, creditors who rejected the plan, as well as those who abstained or were absent from the meeting, will not have their rights affected.
In this regard, Judge Daniel Carnio Costa² warns that dissenting creditors, who did not agree to this clause, have in Article 49, p. 1, of Law 11.101/05³ protection for their claim to preserve their rights and privileges against co-obligors, guarantors and obligors in recourse, which is why its effects cannot be extended to dissenting creditors, as it would violate public policy. It recommends that the judge ratify the clause with the proviso that its effects apply only to consenting creditors and that dissenting creditors preserve their rights against co-obligors and guarantors.
However, even though the STJ has summarized the issue, the matter is very controversial and the discussion is far from over, as those who defend the rights of guarantors maintain that this understanding distorts the novation institute by allowing the possibility of collecting the same debt twice or in two different ways.
In addition, they maintain that, since the competition process is a system for the collective satisfaction of credits, there can be no double satisfaction, creating an exceptional situation that violates its guiding principle of maintaining parity between creditors.
Nonetheless, unless the acclaimed and necessary reform of Law 11.101/05 amends the aforementioned provisions, which has not been seen in the projects discussed so far, the understanding of the Superior Court of Justice should prevail, adding extra difficulty to the challenge of overcoming the crisis.
Marcos Martins Advogados remains attentive to innovative jurisprudential and academic trends, seeking creative and safe solutions for the reorganization of debts, always committed to the success of the reorganization process.
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¹ BRAZIL. Law No. 11.101, of February 9, 2005. Regulates judicial reorganization, out-of-court reorganization and bankruptcy of entrepreneurs and companies, Brasília, DF, Feb 2005.
Art. 59: The judicial reorganization plan implies novation of credits prior to the request, and binds the debtor and all creditors subject to it, without prejudice to guarantees, subject to the provisions of § 1 of Art. 50 of this Law.
² COSTA, Daniel Carnio. The four-phase criterion for judicial control of the judicial reorganization plan. Migalhas, Oct. 2017. Available at: <https://www.migalhas.com.br/InsolvenciaemFoco/121,MI267199,41046O+criterio+tetrafasico+de+controle+judicial+do+plano+de+recuperacao>.
BRASIL. Law No. 11.101, of February 9, 2005. Regulates judicial reorganization, out-of-court reorganization and bankruptcy of entrepreneurs and companies, Brasília, DF, Feb 2005.
Art. 49: All claims existing on the date of the petition, even if not yet due, are subject to judicial reorganization.
1. Creditors of the debtor under judicial reorganization shall retain their rights and privileges against co-obligors, guarantors and those liable by recourse.
