Tatiane Bagagí Faria
Lawyer at Marcos Martins Advogados
In a recent decision, the 3rd Panel of the Superior Court of Justice (STJ) ruled that a clause in a judicial reorganization plan that prevents creditors of the company under reorganization from seeking satisfaction of claims subject to the effects of judicial reorganization against guarantors and co-obligors is valid.
The dispute over the clause arose due to a decision handed down by the reorganization court, which ordered the exclusion of said clause, on the grounds that it allegedly contravened the provisions of article 49, paragraph 1, of Law 11.101/05, because it restricted creditors’ rights in relation to joint and several debtors, who do not benefit from the effects of judicial reorganization.
The company under reorganization filed a Special Appeal with the STJ, seeking reform of the ruling that upheld the lower court decision, alleging an affront to the provisions of the Judicial Reorganization and Bankruptcy Law, as well as dissenting case law, since the 3rd Panel of the STJ had already ruled on the legality of a provision that provides for the suppression of real and fiduciary guarantees, when approved without objection from creditors.
In her vote, Reporting Justice Nancy Andrighi pointed out that the judicial reorganization plan is contractual in nature, so that it is unacceptable to judicially challenge the clauses presented and approved by the creditors, respecting the principle of sovereignty and autonomy of the will of the parties involved in approving the judicial reorganization plan.
As a result, the company’s appeal was upheld by a unanimous panel to declare valid the clause that prevents the pursuit of credit against the co-obligors of the company under judicial reorganization.
Marcos Martins Advogados is attentive to new case law in order to provide our clients with appropriate and effective advice.
