By Mônica Radaelli Carpes Neiva and Maria Isadora De Faveri Marquesine
The Lei de Recuperação Judicial e Falência (Judicial Reorganization and Bankruptcy Law) (Law No. 11.101/2005), in its Article 49, provides that all credits existing at the date of the request, even if not yet due, are subject to reorganization, with certain exceptions. Among these exceptions, paragraph 3 of Article 49 excludes credits secured by fiduciary ownership.
Among the types of fiduciary ownership is the fiduciary assignment of receivables. This is a security mechanism established through a contract, in which the debtor transfers credit rights or assets to the creditor as collateral for a debt. However, this transfer is resolvable, meaning that the creditor retains fiduciary ownership of the asset or right until the debt is fully settled, at which point the debtor regains full ownership.
For this reason, assets subject to fiduciary guarantees do not form part of the company’s estate undergoing reorganization. Consequently, such credits are, in principle, not subject to the reorganization plan and the conditions imposed by collective negotiations between creditors and the debtor. In these cases, the fiduciary creditor’s property rights over the assigned asset or right prevail, as do the contractual conditions originally agreed upon between the assignor and assignee.
However, certain requirements must be met for credits secured by fiduciary assignment not to be subject to judicial reorganization. In a recent ruling (AgInt in REsp 2.042.014-RJ) by the Third Panel of the Superior Court of Justice (STJ), under the rapporteurship of Minister Moura Ribeiro, it was unanimously established that prior registration of the fiduciary assignment contract at the debtor’s domicile is not required. However, merely mentioning the credit in a “borderô” (banking report) is insufficient to establish the guarantee, as a minimum determination of the assigned object is necessary.
In the case reviewed by the STJ, the fiduciary assignment contract contained only a generic reference to the credits listed in the “borderô”, without any details that would render the credit identifiable. Due to this lack of specificity, the credits were included in the judicial reorganization as unsecured (chirographic) claims, meaning they were subject to the reorganization plan and had no priority over other creditors.
Thus, the court ruled that there is no requirement for an individualized identification of all credit instruments to perfect the fiduciary transaction, but there must be at least a determinable description of the secured receivables (e.g., promissory note, post-dated check, credit card receivables, etc.).
For the purposes of Article 49, §3 of Law No. 11.101/2005, a minimum criterion of determination of the secured credits is required. This is necessary because the “borderô” may reflect asset realizations not necessarily related to the company’s productive activity (e.g., sale of non-guaranteed assets), in which case other creditors of the debtor may have an interest in monitoring these transactions.
Therefore, it was concluded that a fiduciary assignment contract of receivables may not encompass an undetermined asset, but it may cover a determinable object (pursuant to Article 104, II of the Civil Code). In this regard, the identification of the assets must be as specific as possible.
The aforementioned ruling has not yet become final, as the creditor has filed an Embargo de Divergência (Motion for Divergence). However, considering the STJ’s jurisprudential stance on this matter, there is little expectation that the ruling will be altered.
Fiduciary security is an important instrument for creditors seeking protection against their debtors’ insolvency and exemption from judicial reorganization, which may result in conditions involving high discounts (haircuts) and long-term installments. However, for the guarantee to effectively fulfill this purpose, it is essential that creditors receive proper legal counsel to ensure compliance with the applicable legal requirements for each type of security interest granted.
