Suppression of collateral in a recovery plan must have creditor approval.

The 2nd section of the Superior Court of Justice (STJ) ruled this Wednesday, the 12th, that it is not possible to suppress real and surety guarantees, foreseen in the judicial reorganization plan, without the creditor's consent. The panel, by majority vote, followed the opinion of Minister Ricardo Villas Bôas Cueva.

The section analyzed whether the clause in the judicial reorganization plan that provides for the elimination of real and personal guarantees can affect creditors who did not expressly agree to the approval of the plan.

In this specific case, it concerns a request for judicial reorganization of a group. The judicial reorganization plan was approved by a majority of creditors at a meeting and ratified by a decision of the court in Jaú/SP.

The bank appealed the decision, pointing out irregularities in the judicial reorganization plan. It argued for the termination of all guarantees, the dismissal of all ongoing legal proceedings against the group, its controlling shareholders, subsidiaries, affiliates, and other companies, and the release of all liens.

The appeal was partially granted by the São Paulo Court of Justice (TJ/SP) to remove the plan's interference with the creditors' guarantee, as well as to preserve the creditor's right to file and continue with the action or execution against third parties. In light of this, a special appeal was filed with the Superior Court of Justice (STJ).

Resignation

When analyzing the case, the rapporteur, Minister Ricardo Villas Bôas Cueva, noted that after the approval of Law 11.101/05, Brazilian legal scholars and courts engaged in a strong debate regarding the effects of novation derived from the approval of the judicial reorganization plan, establishing a solid understanding that the novation provided for in the bankruptcy and reorganization law differs from that governed by the Civil Code, and does not affect guarantees provided by third parties.

Cueva highlighted that the creditor who attended the meeting and voted in favor of the plan, and therefore the clause extending the novation to the co-obligors, validly waived the guarantee stipulated in his favor, hence the effectiveness of the act in relation to him.

However, the minister considered that, in the absence of a clear expression of intent to novate the guarantees by the creditor, it is not possible to disregard the legal provision that novation does not extend to co-obligors. "In fact, according to article 361 of the Civil Code, novation is not presumed, depending on the finding of unequivocal intent to novate," he added.

"Article 49, § 2, of Law 11.101/05, when mentioning that obligations will observe the conditions originally contracted, including with regard to charges, unless otherwise established in the plan, is referring to obligations and, consequently, to discounts, deadlines and charges, and not to guarantees."

Real guarantees

Regarding real guarantees, the minister emphasized that the governing law is clear in establishing, in article 50, § 1, that "in the sale of property subject to a real guarantee, the suppression of the guarantee or its substitution will only be permitted with the express approval of the creditor holding the respective guarantee."

"Therefore, regarding this point, there is no doubt about the essential requirement of the holder of the real security interest for its suppression. Note that the law refers to the creditor holding the security interest to allow the suppression, and not to a class of creditors."

According to the minister, if the plan is breached after the judicial phase, the credits do not revert to their initial status, and it is up to the creditor to enforce the judicial reorganization plan.

"It is worth emphasizing that Article 50, § 1, of the Brazilian Bankruptcy and Reorganization Law (LREF) aims not only to guarantee the inclusion of the creditor in the class of creditors with real rights in the event of non-compliance with the plan and declaration of bankruptcy, but also to maintain their guarantees under the terms originally agreed upon in the event of execution of the judicial reorganization plan or declaration of bankruptcy."

According to Cueva, even though the encumbered assets may eventually be sold to satisfy the classes of creditors that precede creditors with real guarantees, with the relativization of the privilege, the fact is that the benefit remains if there are sufficient assets to pay the priority classes, guaranteeing payment to the creditor up to the limit of the sale value, thus maintaining the creditor's interest in preserving their guarantee.

Recovery plan

The minister emphasized that the conclusion that best balances the binomial "preservation of the viable company x preservation of the economic activity as a whole" is that the clause extending the novation to co-obligors would only be legitimate and enforceable against creditors who approve the recovery plan without any reservations, and would therefore not be effective with respect to creditors who were not present at the general meeting of creditors, abstained from voting, or opposed such provision.

"Submitting creditors who voted against the clause that provides for the exclusion of guarantees to the recovery plan represents a true affront to legal certainty and its consequences, since a creditor who grants credit and receives a guarantee in return certainly needs a minimum assurance that this guarantee will be respected, even in the event of recovery or bankruptcy, as provided for in Law 11.101/05."

Therefore, the court denied the appeal filed by the group and dismissed the appeal filed by the bank.

Ministers Raul Araújo, Nancy Andrighi, Antonio Carlos Ferreira, and Marco Aurélio Buzzi followed the rapporteur's understanding, forming the majority of the section.

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Case: REsp 1.794.209

Source: Migalhas