Enforcement proceedings against guarantor suspended until recovery plan is fulfilled.

Due to an express provision in the judicially approved plan, the 22nd Chamber of Private Law of the Court of Justice of São Paulo ruled in favor of a request to suspend an execution until the judicial reorganization plan is fulfilled.

The guarantor filed an objection to the enforcement of the promissory note. The principal debtor company is undergoing judicial reorganization. Following the approval of the plan, the guarantor requested the suspension of the enforcement proceedings.

The request was granted by the judging panel, by majority vote. The rapporteur, Judge Roberto Mac Cracken, stated that article 49, paragraph 1, of Law 11.101/05, provides that "the creditors of the debtor in judicial reorganization retain their rights and privileges against co-obligors, guarantors and those liable for recourse".

On the other hand, it was highlighted that paragraph 2 of the same article 49 also stipulates that "obligations prior to judicial reorganization shall observe the conditions originally contracted or defined by law, including with regard to charges, unless otherwise established in the judicial reorganization plan".

In this case, according to the rapporteur, the recovery plan, approved at a general meeting of creditors and ratified judicially, specifically provides for the suspension of enforcement against the guarantors. Mac Cracken noted that the plaintiff did not present any objection to the aforementioned clause.

"On the contrary, the records show a petition filed by the plaintiff in the judicial reorganization proceedings, providing bank details for making the payments," he added. Thus, according to him, the approval of the plan in these terms precludes the application of Precedent 581 and Special Appeal 1,333,349, both from the Superior Court of Justice (STJ).

The summary in question states that "the judicial reorganization of the principal debtor does not prevent the continuation of actions and executions filed against third-party joint debtors or co-obligors in general, because
"Exchange guarantee, real or surety".

And the precedent set by the Superior Court of Justice (STJ), which was overturned, established that "the judicial reorganization of the principal debtor does not prevent the continuation of executions nor does it induce the suspension or termination of actions filed against third-party joint debtors or co-obligors in general, by way of negotiable instrument, real or surety guarantee, since the suspension provided for in articles 6, caput, and 52, item III [of the judicial reorganization law], or the novation referred to in article 59, caput, do not apply to them, by virtue of the provisions of article 49, § 1, all of Law No. 11.101/2005".

Thus, considering the specific circumstances of the case, the majority of the 22nd Chamber understood that "the approval of the judicial reorganization plan, in this case, also resulted in novation with respect to the guarantors, given the creditors' agreement, a factual peculiarity that distinguishes this dispute from the cases covered by Precedent 581 and Special Appeal 1.333.349/SP, both from the Superior Court of Justice."

Finally, the rapporteur highlighted that the judging panel lacks jurisdiction to assess the alleged illegality of the clause in the judicial reorganization plan or any other provision contained in the document: "Thus, in this context, the present appeal deserves to be granted, to find the present objections to the execution admissible, ordering the suspension of the execution until the judicial reorganization plan is fulfilled."

Divergence
The third and fourth judges were overruled. According to them, the creditors' meeting could not decide to suspend the enforceability of obligations of those not subject to the effects of judicial reorganization. "Such a decision is entirely invalid, as it exceeds the scope of what is cognizable by the assembly community, in addition to blatantly rendering meaningless what is expressly stated in § 1, article 49, of Law 11.101/2005," said Judge Campos Mello.

Judge Alberto Gosson stated that the creditors' meeting cannot go beyond what the legal framework stipulates: "The interpretation of paragraph 1 of article 49 is clear, and, barring any better judgment and with respect to contrary opinions, paragraph 2 does not authorize the hermeneutical scope that is being attempted to be attributed to it."

Case 1053517-30.2019.8.26.0100

Source: Conjur