The Third Panel overturns fines and fees on a debt that the debtor in receivership could not voluntarily settle.

According to the Third Panel of the Superior Court of Justice (STJ), a debt subject to judicial reorganization proceedings, arising from a lawsuit demanding an unliquidated amount, cannot be increased by the fine and attorney's fees stipulated for the case of refusal to voluntarily comply with a judgment (article 523, paragraph 1, of the 2015 Code of Civil Procedure).

The case analyzed concerns a declaratory action for the non-existence of debt with a request for compensation, in the sentence enforcement phase, filed by a consumer against a telephone operator undergoing judicial reorganization. The company was convicted for having improperly included the consumer's name in a credit restriction registry.

The Court of Justice of Rio Grande do Sul (TJRS) acknowledged that the consumer's credit was subject to the effects of the recovery process, but determined that the amount should be increased by the fine and fees stipulated in article 523, paragraph 1, of the CPC.

In its appeal to the Superior Court of Justice (STJ), the telephone company argued that the decision of the Court of Justice of Rio Grande do Sul (TJRS) violates the principle of equality among creditors.

Credit approval

According to the rapporteur, Minister Nancy Andrighi, "the event that gave rise to the credit in question occurred before the request for judicial reorganization, so there is no doubt about its subjection to the effects of the reorganization process."

However – the judge observed – when dealing with a debt arising from an action in which an unliquidated amount is claimed, Article 6, paragraph 1, of Law 11.101/2005 stipulates that the declaratory action shall continue in the original court until the value of the debt is determined, at which point it must be included in the general list of creditors, and the individual enforcement action shall be prevented from proceeding from that point onward.

Furthermore, the rapporteur highlighted that, according to article 59, caput, of Law 11.101/2005, the recovery plan implies novation of credits prior to the request, and the payment of the debts of the company undergoing recovery must respect the agreed conditions, always with respect for equal treatment among creditors of each class.

Unenforceable obligation

According to Nancy Andrighi, given these circumstances, the enforcement phase of the judgment should not have even begun, since the settlement of the debt would only occur after it was duly approved and in accordance with the provisions of the recovery plan.

Thus – concluded the minister – it cannot be considered that there was a voluntary refusal to pay, which would be the cause for applying the fine and fees provided for in paragraph 1 of article 523 of the CPC, "since the payment of the amount recognized in court, as a direct consequence of the system provided for in Law 11.101/2005, did not constitute an obligation that could be demanded from the debtor in recovery".

In granting the special appeal, the rapporteur added that, given that a recovery process is underway, the debtor's free disposal of its assets to pay individual debts subject to the recovery plan would violate the principle that creditors must be treated equally.

REsp 1873081

Source: STJ