On April 27, 2022, the Second Section of the Superior Court of Justice (STJ, the highest court for non-constitutional matters) granted Special Appeal no. 1.655.705/SP (“Special Appeal”), filed by a company undergoing court-supervised reorganization against a decision of the 31st Private Law Chamber of the São Paulo State Court of Appeals (TJSP) that upheld the lower court ruling that rejected a pre-execution objection motion filed by the appellant.
In its pre-execution objection motion, the company undergoing court-supervised reorganization sought extinction of a debt collection suit filed by the appellee, based on the allegation that the credit in question was classified as pre-petition and thus subject to the effects of the reorganization proceeding.
According to the decision rendered by the 31st Private Law Chamber of the TJSP, the credit detained by the appellee was classified as post-petition, because the final decision of the underlying debt collection suit occurred after the granting of the reorganization petition. Hence, the credit in question was not subject to the reorganization proceeding.
In the special appeal, the creditor pointed out that its credit was constituted by a verdict rendered in 2008, therefore before the filing of the petition for court-supervised reorganization, which was granted on August 29, 2014. In this respect, it contends that the credit was born with the generating event, not the moment of the final judicial decision. Therefore, although the decision recognizing the existence of the debt was declared final (res judicata) after the filing for reorganization, its “constitutive cause” happened beforehand.
According to the leading opinion of the reporting justice, Ricardo Villas Bôas Cueva (“Reporting Justice”), the interpretation of the appellate court below regarding the post-petition nature of the credit conflicted with the jurisprudence from the STJ, settled according to the repetitive appeal regime, that consolidated the position that the existence of a credit starts on the date of its generating event (see STJ, Special Appeal 1.840.531/RS, 2nd Panel, Reporting Justice Ricardo Villas Bôas Cueva, judged on December 9, 2020, published on December 17, 2020).
After recognizing the pre-petition nature of the credit, the Reporting Justice analyzed whether or not the enforcement phase of the debt collection suit should be extinguished.
With regard to the argument of the appellant that the creditor is required to obtain the allowance of its credit by the reorganization court, the Reporting Justice held that the law does not require the creditor to seek allowance of the credit, since this is only an option of the creditor.
On the other hand, the creditor cannot proceed with the individual enforcement of its credit during the course of the reorganization process, since this would undermine the debt reorganization system, harming creditors whose credits have been allowed by the court.
Specifically regarding the possibility of pursuing the individual enforcement by the creditor after the end of the court-supervised reorganization, the Reporting Justice stressed that the argument that the creditor can pursue integral satisfaction of its credit after the conclusion of the reorganization proceeding defies Art. 49 of Law 11,101/2005.
In turn, with respect to the voluntary exclusion of the credit from the scope of the reorganization proceeding by the debtor, the Reporting Justice held that the possibility of voluntary exclusion must be circumscribed to a class or sub-class of creditors, who receive their credits in the form originally stipulated. Possible creditors singularly excluded from the reorganization proceeding, but that belong to the class subject to the reorganization plan, must obtain allowance of their credits pursuant to Law 11,101/2005.
Originally, the opinion of the Reporting Justice had stated that in cases where the decision to recognize the subjection of the credit to the effects of the court-supervised reorganization proceeding after the final decision concluding that proceeding, the enforcement should proceed according to the original value of the credit, because in that situation there would be no novation by the plan.
However, after considering the manifestations of the other justices of the panel, Marco Aurélio Bellizze and Luis Felipe Salomão, the Reporting Justice altered his reasoning on this aspect.
According to the Reporting Justice, regardless of whether one understands that the conclusion of the reorganization proceeding coincides with the end of the judicial phase (Art. 61 of Law 11,101/2005) or that the reorganization only ends with the payment in full of all the obligations set forth in the reorganization plan, the simple continuation of the original enforcement action after the conclusion of the reorganization is unfeasible.
Therefore, while a creditor not listed in the initial list of creditors is not obliged to obtain allowance of its credits from the court, it must submit to the conditions of the plan approved by the creditors. The subsequent recognition of the pre-petition nature of the credit, whether before or after the closing of the reorganization proceeding, does not make the credit in question immune to the effects of the reorganization plan.
In the case under discussion, the Reporting Justice concluded that the pre-execution objection motion presented by the appellant should be accepted, with extinction of the enforcement of the debt, with the appellee having the option of: (i) seeking allowance of its credit in the reorganization proceeding; or (ii) presenting a new claim to enforce the credit after the end of the reorganization proceeding, taking into consideration that in this case its credit will be subject to the effects of the approved judicial recovery plan.
More information, including the full text of the decision in Special Appeal no. 1.655.705/SP, can be obtained as the website of the STJ (www.stj.jus.br).
