Nathalia Brum
Lawyer at Marcos Martins Advogados
In a recent decision, Judge Paula Saide Biagi Messen Mussi Casagrande, of the 1st Civil Court of Sorriso (MT), applied the cram down institute to approve the judicial reorganization of an agricultural group in Mato Grosso, despite the rejection of the plan by 63.95% of the voting members of the class of creditors with real guarantees.
At the general meeting of creditors, held on June 14, 2021, approval was given to the credits present from the Labor, Unsecured and Micro and Small Companies classes. However, 63.95% of the secured creditors rejected the plan. As a result, it was not possible to obtain approval for the plan under the terms of article 45 of Law 11.101/2005, which stipulates that all classes of creditors must approve it.
Despite the rejection by the secured creditors, the magistrate ruled that the plan could be approved because the requirements for the application of cram down were present, as set out in article 58 of Law No. 11.101/2005, as amended by Law No. 14.112/2020.
The decision follows STJ case law in the sense that it is up to the judge to act sensibly when analyzing the cram down requirements, paying primary attention to the principle of preserving the company, in order to curb any abuse of the creditor’s right to vote.
In this case, it can be seen that the favorable vote of the creditors present at the meeting is equivalent to more than half the value of all the credits present, the approval of three of the four existing classes, as well as in the class in which the plan and its amendments were rejected, there was agreement from more than 1/3 of the creditors, and therefore the legal requirements of the aforementioned legal provision are present.
In addition to the presence of the requirements set out in the law, the judge upheld the viability of the recovering creditors who, like all those who directly and indirectly have a relationship with agribusiness, in the face of the economic setback caused by the COVID-19 pandemic, proved to be a resilient sector, showing positive results.
Thus, the plan and its amendments were ratified to grant Judicial Reorganization to the agricultural company, despite rejection by a class of creditors.
Case no. 1001191-62.2020.8.11.0040
1st Civil Court of Sorriso/MT
