Jayme Petra de Mello Neto
Priscilla Folgosi
Lawyers at Marcos Martins Advogados
Law 11.101/05 – the Judicial Reorganization and Bankruptcy Law or (LRF) excludes fiduciary-guaranteed credit from the effects of judicial reorganization (art. 49, §3[1]), authorizing the creditor to consolidate the fiduciary guarantee and may even remove the asset from the debtor’s establishment immediately, unless it is considered an essential asset for the development of the debtor’s business, in which case a period of 180 days must be respected.
Despite the express provision for an exception to the concurrent nature of this credit, in practice, creditors of this type have behaved in a procedural manner, filing enforcement actions for a sum certain, as if the fiduciary guarantee did not exist or had no relevance. Faced with this behavior, the Courts have established an understanding that repositions the credit within the credit competition. Thus, if the fiduciary creditor opts to file an enforcement action instead of a search and seizure action, it gives up the fiduciary guarantee and, consequently, loses the privilege of article 49 §3 of the LRF, becoming a mere unsecured creditor, generically guaranteed by the assets of the company in reorganization.
This is the understanding that has prevailed in the Specialized Chambers of the São Paulo State Court of Justice, according to the exemplary sentences transcribed below[2]:
JUDICIAL REORGANIZATION. Request to remit amounts obtained from the sale of assets of the company under reorganization to the individual enforcement court. Rejection upheld. Fiduciary creditor who, by opting for enforcement of the debt, gives up the fiduciary guarantee and, consequently, the extraconcurrence provided for in art. 49 §3 of the LRF. Precedents. Credit, therefore, which must be recognized in the recovery. Impossibility of remitting the amounts. Proceeds from the sale used by the aggravated company to obtain financial resources to comply with the reorganization plan. Appeal dismissed. (Rel. Des. Teixeira Leita – 1st Chamber Reserved for Business Law of the São Paulo Court of Justice – Interlocutory Appeal No. 2046174-77.2016.8.26.0000, j.10/08/2016).
Thus, it is possible to state that the legal protection afforded to fiduciary creditors is limited to the option of enforcing the guarantee. Therefore, if the creditor divests itself of the guarantee provided for by the LRF, it must qualify its claim in the reorganization, as an unsecured creditor that it has become.
Allowing the creditor to continue to seize the debtor’s assets indiscriminately, even if he holds fiduciary property, would be to privilege him to the detriment of all other creditors, violating the principle of equality between creditors and jeopardizing the execution of the judicial reorganization plan. This is because the extra-concurrence granted by the Law is not linked to the quality of the credit in itself, but to the underlying operation that formed the guarantee. It should be remembered, although it is often confused by the legal operators themselves, that Fiduciary Alienation is not a legal transaction in the strict sense. In other words, it is not an agreement of wills.
Rather, Fiduciary Alienation is a Real Right, understood as “… a relationship between man and thing, which is established directly and without intermediary, and therefore contains three elements: the active subject, the thing and the immediate inflection of the active subject over the thing (…)”[3] The creditor guaranteed by Fiduciary Alienation is the owner of the asset under guarantee, and is therefore able to exercise the immediate inflection over the thing mentioned in the definition of these rights.
By filing a mere execution, without pursuing the thing itself, this creditor’s conduct is akin to abandonment, a form of property extinction, and case law has well decided in reorganization proceedings that the creditor should lose its extrajudicial status, given the conduct contradictory to the right in rem that it held until then.
Until the acclaimed and necessary reform of Law 11.101/05 is promoted, with the end of extra-petition claims not subject to the effects of judicial reorganization which, as a rule, reduce the chances of effectively overcoming the crisis, it is necessary to remain vigilant and know how to operate in favor of the correct application of the Law in the challenging cases that arise. Marcos Martins Advogados Associados remains attentive to innovative jurisprudential trends, which allow for creative and safe solutions for the reorganization of debts, always committed to the success of the reorganization process.
[1] Art. 49. § Paragraph 3 In the case of a creditor holding the position of fiduciary owner of movable or immovable property, of a commercial lessor, of the owner or promissory seller of real estate whose respective contracts contain an irrevocability or irretractability clause, including in real estate developments, or of an owner in a sale contract with reservation of ownership, their credit will not be subject to the effects of the judicial reorganization and the rights of ownership over the property and the contractual conditions will prevail, in compliance with the respective legislation, not allowing, however, during the suspension period referred to in § 4 of Art. 6 of this Law, the sale or removal from the debtor’s establishment of capital assets essential to his business activity shall not be permitted.
[2] See also: (AI 2050578-11.2015.8.26.0000, 32nd Chamber of Private Law, rel. Luis Fernando Nishi, j. 28/05/2015). (AI 2167723-25.2014.8.26.0000, 20th Chamber of Private Law, Álvaro Torres Júnior, j. 02/02/2015). (AI 2039070-39.2013.8.26.0000, 37th Chamber of Private Law, Sérgio Gomes, j. 11/02/2014).
[3] DINIZ, Maria Helena. Curso de direito civil brasileiro: direito das coisas. 18. ed. São Paulo: Saraiva, 2002. v. 4. p. 12.
