By choosing to foreclose on a debt, the secured creditor relinquishes the guarantee.

When filing an enforcement action, the secured creditor waives the security interest, given the clear incompatibility of its procedural conduct, which precludes the application of Article 49, § 3 of Law 11.101/2005 and converts the secured creditor into an unsecured creditor, generically guaranteed by the debtor's assets.

With this understanding, the 1st Chamber of Business Law of the Court of Justice of São Paulo rejected a credit objection made by Banco Industrial do Brasil in the judicial reorganization proceedings of the JBM Group. The bank sought the exclusion of its credit, given that it had signed a Bank Credit Note with the companies, secured by fiduciary assignment of real estate and fiduciary assignment of credit rights.

The argument was accepted in the first instance. Before the São Paulo Court of Justice (TJ-SP), the JBM Group, represented by DASA Advogados, argued that, given the filing of an enforcement action by the bank, there was a waiver of the respective fiduciary guarantees, and that the necessary identification of the credit instruments involved in the assignment was lacking, thus negating the extra-bankruptcy status of the credit related to the Bank Credit Note.

The arguments were accepted by the TJ-SP (Court of Justice of São Paulo). According to the rapporteur, Judge Fortes Barbosa, contradictory behavior is not "admissible," with the creditor assuming "dubious conduct outside the parameters of predictability," acting through a procedural route incompatible with the fiduciary guarantee and then "going back on" its decision.

"The conditional ownership of the property or the fiduciary assignment of credit rights were established with the purpose of safeguarding the creditor's position and, given the pending judicial reorganization, collection through executive proceedings creates a situation of serious incompatibility, in which there is, with effective legal and economic prejudice to all other creditors, an action on the debtor's general assets, causing an automatic release of the guarantee," he said.

Furthermore, according to the judge, in this case there was no necessary individualization and specificity of the commercial drafts from which the credits originate, "so that it is not possible to know what the object of the fiduciary assignment is and, consequently, the fiduciary guarantee could not be executed." He cited in his opinion the provisions of article 66-B, §3 of Law 4.728/1965.

"The fiduciary assignment cannot be hollow and devoid of concrete content, so it would only be effective if it had fallen on effectively existing, available, and individualized credits. The liquidation of the loan cannot be accepted without the minimum individualization of the credits and without specified values being represented, creating total uncertainty regarding the content of the disputed fiduciary assignment," concluded Barbosa.

Case 2034109-11.2020.8.26.0000

Source: Conjur