Governance and Recovery of Companies
Execution against the guarantor partner in Reorganization Autor: Gabriele Chimelo – Advogada OAB/RS 70.368
The Fourth Chamber of the Superior Court from the Supreme Court rejected the request for suspension of action by the Banco Mercantil do Brazil, against socio-surety company that is in Reorganization.
According to the Rapporteur, Minister Luis Felipe Solomon, "shall not be suspended, but the executions directed to individual guarantors of security whose principal debtor company is in Reorganization, the situation is different because the joint debtor."
The Lawyer Gabriele Chimelo, Coordinator of Governance and Corporate Recovery Scalzilli.fmv of Lawyers & Associates, warns that consolidation of this understanding by STJ could pose serious harm to the applicability of the Judicial Recovery Act, since, of course, undermine the compliance with the very essence of the legislation.
Article 49 of Law narrates that are subject to Reorganization all claims existing on the date of the request, but not defeated, showing even the creditor of the company in Reorganization preserves its right to collect the debt directly from guarantors and sureties .
Despite the law available in this way, art. 59 regulates the contrary, stating that the Judicial Recovery Plan - which was duly approved, meaning that lent itself to granting the request - entails the conversion of the debt.
But what is novation and what are its effects?
A novation can be summarized as the creation of a new obligation replacing the primitive obligation, which is eliminated. In other words, the debtor incurs new debt obligation to replace the original, which is extinct.
Thus, linking the novation to the theme of Reorganization, there is strong agreement that in case after court approval of the plan, only the company under the Reorganization is required to comply with the new obligations, excluding joint debtors, because these were guarantors of obligation extinguished.
Thus, the debt extinguished earlier by novation, the new debt can not bind the joint debtors of the first (and guarantors guarantors).
Another issue that deserves attention is the provisions of art. 6 of the Judicial Recovery Act, which provides that the granting of suspending the processing actions and executions against the debtor, including those of private general partner.
So if suspended executions and actions of members of private creditors, with more consistency (some jurists argue) are suspended, too, the actions and foreclosures filed in light of the debtor company and its partners also provided supportive.
The permanence of debt recovery against the socio-guarantor, after granting the measure recuperatória, is the Achilles heel of Reorganization, considering that, in most cases, the guarantor / surety company are its own members and thus this institute loses its purpose, which is to give the entrepreneur the breath needed to enable restructuring.
