Cíntia Solé
Lawyer at Marcos Martins Advogados
The Third Panel of the Superior Court of Justice has standardized its understanding on the validity of the registration of the sale of real estate during the term of bankruptcy, but prior to the decree of bankruptcy, by settling a controversy that hovered over the need to prove fraud for its nullity and its possible ineffectiveness before the bankruptcy estate, under the terms of article 129, VII, of Law No. 1,101/2005.
The initial claim in the case that was the subject of the decision concerned a revocation action filed by the bankruptcy estate against the buyer, alleging that the sale was ineffective due to the annulment of the sale of two real estate assets during the legal term of the bankruptcy, which had the effect of defrauding creditors.
At first instance, a judgment was handed down declaring the sales to be ineffective and unenforceable against the bankruptcy estate, as they occurred during the legal term of the bankruptcy, as well as ordering the registration of the assets in favor of the bankruptcy estate, which was upheld at second instance.
In Special Appeal No. 1.597.084/SC, filed by the purchaser, the appellant claimed violation of articles 129 and 133, II, of Law No. 11.101/2005, on the grounds that the sale took place prior to the decree of bankruptcy, albeit during the legal term of 90 (ninety) days provided for in item II of article 99 of said law, as well as the absence of fraud or bad faith in the purchase.
According to the opinion of Reporting Justice Villas Bôas Cueva, there is no need to talk about the bankrupt’s acts falling within the hypotheses listed in article 129, VII, of Law 11.101/2005, i.e. acts considered ineffective vis-à-vis the bankrupt estate, even if carried out in good faith.
This is because the law refers to the registration of property transfers only after the decree of bankruptcy, unlike the situation portrayed in the case, which although it occurred within the legal term of bankruptcy, took place before the decree of bankruptcy.
Thus, according to Justice Cueva, given that in the case in question bankruptcy was decreed more than two months after the registration of the transfer of ownership, the possibility of declaring the registration ineffective without proper proof of fraudulent collusion would be ruled out.
In this sense, he cited precedents from the Fourth Panel of the STJ in which it was concluded that “the sale of property belonging to the bankrupt, carried out within the legal term, but before the decree of bankruptcy, depends on proof of the occurrence of fraud”.
However, the revocation action was brought under the serious allegation of fraudulent collusion in the sale, based on article 130 of Law 11.101/2005, in which the bankrupt estate reported that “Investigations carried out by the judicial administration demonstrate the bankrupt’s intention to defraud creditors”.
In view of this, Judge Cueva stated that it was possible to revoke the bankrupt’s acts if there was a proven intention to defraud creditors, as determined by article 130 of Law 11.101/2005:
“Art. 130. Acts carried out with the intention of harming creditors may be revoked, provided that fraudulent collusion between the debtor and the third party contracting with him and the actual loss suffered by the bankrupt estate are proven.”
Having said this, Judge Villa Bôas Cueva ordered the case to be sent back to the court of origin for a re-examination and to verify the existence or not of the aforementioned fraud, given that, in the judgment, the magistrate failed to examine the allegation of the existence of fraud in the sale when he ruled that the sale fell within the scope of article 129 of Law 11.101/2005.
The Third Panel of the STJ then unanimously followed the vote of the Reporting Justice and held that the declaration of ineffectiveness of the registration of the transfer of ownership should only be made when it takes place after the decree of bankruptcy.
Marcos Martins Advogados is attentive to the constant updating of case law and is ready to act in defense of its clients’ rights.
