Amanda Couto
Trainee at Marcos Martins Advogados
Under judicial reorganization, a company in the electrical gears industry has had its Judicial Reorganization Plan approved and consequently ratified by the courts. Despite the approval, a banking institution filed an interlocutory appeal against the decision that ratified the payment proposal to creditors.
Among other provisions, the proposal foresaw the possibility of using the Reference Rate (TR) for monetary correction of debts – a clause indicated in the appeal as abusive and which was upheld by the Court.
According to rapporteur Azuma Nishi, the use of the Referential Rate (TR) as an index in the Judicial Recovery Plan is not illegal. However, the rate has been zero for more than two years and, in practice, it burdens creditors even more with an implicit discount, which is why he determined that the value should be updated according to the TJSP‘s practical table.
The magistrate also ruled that the clauses which provided for the abolition of the two-year inspection period and the impossibility of collection against guarantors and co-obligors were unenforceable, as they were in breach of Law 11.101/05 (the Judicial Reorganization and Bankruptcy Law).
