Post by xyz3400 on Feb 20, 2024 8:01:35 GMT
The understanding was established by the 3rd Panel of the Superior Court of Justice when determining the referral of the case to the first instance so that, within the scope of the recovery action, the judge could analyze the type of exchange guarantee that was provided by the business company. The creditor of the title is Banco do Brasil. The guarantee represents a guarantee provided in favor of the debtor of a credit instrument, characterized by the fact that the guarantor is responsible for fulfilling the obligation in the same way as the main debtor. During the judicial recovery action of a group of business companies, the judge accepted the challenge presented by Banco do Brasil to determine the exclusion of credit in the amount of approximately R$12 million. The decision was reversed by the Court of Justice of Rio Grande do Sul, which ordered the submission of credits relating to the guaranteed obligation to the recovery process.
For the court, it would be viable to qualify credit resulting from a guarantee, as the guarantor guarantees payment as a joint debtor, and can even be activated individually, without it being necessary to observe the order in which they were obligated due to exchange solidarity. Through a special appeal, Banco do Brasil claimed that the credits discussed in the action should not be Honduras Mobile Number List subject to recovery, given that the companies under recovery occupy the position of guarantors of the bank credit note issued by third parties. According to BB, as on the date of the recovery request the guarantors still did not have any credit, but merely the expectation of the right of return, the request still did not fit into the hypotheses of article, in addition to disrespecting article 899 of the Civil Code.
Minister Nancy Andrighi recalled that the guarantor is jointly and severally liable for the debt to the creditor, and it is not possible for him to invoke personal exceptions. She also highlighted that article 49 of Law 11,101/2005 stipulates that all credits existing on the date of the request for judicial recovery are subject to its effects, except those described in paragraphs 3 and 4 of the same article, which do not include the endorsement. "Thus, given the autonomy of the guarantee provided by the company under recovery and the legal permission to include credits not yet due in the plan, there would be no reasons for the exclusion requested by the appellant", pointed out the minister. However, the rapporteur considered whether the provision of article 5, paragraph I, of the Bankruptcy and Recovery Law — which expressly excludes the requirement of obligations free of charge from recovery — would be applicable in the case in question.
For the court, it would be viable to qualify credit resulting from a guarantee, as the guarantor guarantees payment as a joint debtor, and can even be activated individually, without it being necessary to observe the order in which they were obligated due to exchange solidarity. Through a special appeal, Banco do Brasil claimed that the credits discussed in the action should not be Honduras Mobile Number List subject to recovery, given that the companies under recovery occupy the position of guarantors of the bank credit note issued by third parties. According to BB, as on the date of the recovery request the guarantors still did not have any credit, but merely the expectation of the right of return, the request still did not fit into the hypotheses of article, in addition to disrespecting article 899 of the Civil Code.
Minister Nancy Andrighi recalled that the guarantor is jointly and severally liable for the debt to the creditor, and it is not possible for him to invoke personal exceptions. She also highlighted that article 49 of Law 11,101/2005 stipulates that all credits existing on the date of the request for judicial recovery are subject to its effects, except those described in paragraphs 3 and 4 of the same article, which do not include the endorsement. "Thus, given the autonomy of the guarantee provided by the company under recovery and the legal permission to include credits not yet due in the plan, there would be no reasons for the exclusion requested by the appellant", pointed out the minister. However, the rapporteur considered whether the provision of article 5, paragraph I, of the Bankruptcy and Recovery Law — which expressly excludes the requirement of obligations free of charge from recovery — would be applicable in the case in question.