COURT-SUPERVISED REORGANIZATION
This article begins with the following statement: although doctrine and case law have adopted the expression first priority claim in Court-Supervised Reorganization, this expression has no specific relation to the Court-Supervised Reorganization process. The expression “first priority claim” comes from a rule in the bankruptcy system, and its use in Court-Supervised Reorganization is synonymous with a claim not subject to Court-Supervised Reorganization. In other words, there is no legal provision for a first priority claim in Court-Supervised Reorganization, but rather a claim not subject to Court-Supervised Reorganization, despite the fact that doctrine and case law accept the term in dissertations and judgments.
The Brazilian bankruptcy system (Law No. 11,101/2005) has three (3) measures, which can be extended to four (4) depending on doctrinal interpretation, which regulate possible ways of renegotiating/restructuring the business Debtor’s crisis activity. To wit: (i) Court-Supervised Reorganization, (ii) Out-Of-Court Reorganization, (iii) Bankruptcy and (iv) Conciliation or Mediation.
Based on this, the purpose of this article is to define the structuring of credit constitutions involving the Court-Supervised Reorganization and Bankruptcy institutes, when the operators of the Law come across the expression “first priority”.
Well then, as is well known, all claims existing on the date of the request, even if they are not yet due, are subject to Court-Supervised Reorganization (art. 49, main section).
A contrario sensu and according to consistent case law, claims that do not exist on the date of the request and whose constitution (triggering event) occurs only after the date of the request, the obligations entered into between Creditor and Debtor will remain outside the renegotiation by the Court-Supervised Reorganization Plan. This is the rationale of the thesis established by the Superior Court of Justice, in the judgment of Repetitive Appeals (theme 1,051).
Law No. 11,101/2005 provides some exceptions for claims that are not subject to Court-Supervised Reorganization, even if they exist on the date of the request, due to their structure and form of constitution. Examples of claims excluded from the effects of Court-Supervised Reorganization are: (i) the credits of the fiduciary owner, (ii) the credits of the commercial lessor, (iii) the credits of the owner with reservation of domain, (iv) the debit balance related to foreign exchange advance operations, (v) tax credits, etc.
In turn, credits existing on the date of the request for Court-Supervised Reorganization will be subject to Court-Supervised Reorganization, the nature of which is defined as being of labor origin, entered into with secured interest, unsecured transactions/without a specific guarantee and unsecured transactions/without a specific guarantee entered into by Creditors registered as micro and small companies (art. 41).
Thus, doctrine and case law have defined a “first priority” claim in Court-Supervised Reorganization as one that will not undergo any changes to the obligations originally contracted, so that it can receive payment without interference from Law 11.101/2005 and can pursue its obligations outside of the Reorganization Court.
BANKRUPTCY
Unlike this concept of first priority in Court-Supervised Reorganization, the concept of first priority in Bankruptcy is completely different. While in Court-Supervised Reorganization, first priority is understood as the claim not being subject to the effects of the reorganization process, in Bankruptcy first priority is understood as a legal order pre-established by the legislator, referring to the order of payment of all claims subject to Bankruptcy.
Article 77 of Law No. 11,101/2005 establishes that, with the filing of Bankruptcy, the debts of the bankrupt debtor will fall due early, listing the creditors in their respective classes, as provided for in articles 83 et seq. of the aforementioned Codex.
In addition, article 115 of Law No. 11,101/2005 provides that the filing of bankruptcy subjects ALL creditors, who may only exercise their rights over the assets of the bankrupt and the unlimited partner in charge in the manner prescribed by this Law.
In other words, unlike Court-Supervised Reorganization, where not all creditors will be subject to Court-Supervised Reorganization, in Bankruptcy all creditors will only be able to receive their claims through the Bankruptcy process, by exercising the absolute jurisdiction of the Universal Bankruptcy Court (art. 76).
This understanding has always been based on the premise that there are two types of contests in bankruptcy: the formal (or procedural) contest, arising from the universal and indivisible court competent for actions over the bankrupt’s assets, interests and business; and the material (or obligatory) contest, whereby the creditor must receive according to the order of legal preference.
It is worth remembering that bankruptcy is the judicial procedure by which the Debtor is removed from conducting the business activity and the Trustee or another agent appointed by the Universal Bankruptcy Court, will collect the assets in the name of the Bankrupt Debtor, evaluate the assets located, after the evaluation, take the assets to sale and with the net proceeds of the sale (money), pay the creditors and their respective claims, in the legal order established in articles 83 and 84 of Law No. 11,101/2005.
In this regard, article 84 of Law No. 11,101/2005 states that: shall be considered first priority claims and shall be paid with precedence over those mentioned in Article 83 of this Law, in the following order: I-A – the amounts referred to in articles 150 and 151 of this Law; I-B – the amount actually delivered to the debtor in court-supervised reorganization by the lender, in accordance with the provisions of Section IV-A of Chapter III of this Law; I-C – cash credits subject to refund, as provided for in art. 86 of this Law; I-D – the remunerations owed to the trustee and his assistants, reimbursements owed to members of the Committee of Creditors, and claims arising from labor legislation or from accidents at work relating to services rendered after the filing of bankruptcy.; I-E – the obligations resulting from valid legal acts performed during court-supervised reorganization, pursuant to Article 67 hereof, or after the bankruptcy has been filed; II – amounts provided to the bankrupt estate by creditors; III – expenses with collection, administration, realization of assets, distribution of their proceeds and costs of the bankruptcy proceedings; and IV – court costs relating to actions and executions in which the bankrupt estate has been defeated;
It should be noted that, under the terms of the article above, the expression “first priority claims” is explicitly provided for in the wording that governs the bankruptcy system, indicating the order of payment that each creditor and their nature of claim will receive from the Bankruptcy process.
It should be pointed out that, in Bankruptcy, even creditors considered to be “first priority” in the Court-Supervised Reorganization will be subject to the bankruptcy process, respecting the payment orders and classification of the credit provided for in Law No. 11,101/2005, specifically in articles 83 and 84 of the aforementioned statute, since those creditors who hold rights to assets collected, for example, must file for restitution in bankruptcy (art. 85) and receive the asset they own through authorization of the Bankruptcy Court and, if the property owned by the creditor no longer exists at the time of the restitution request, the value of the appraisal or the value of its sale will be used to pay that creditor – in other words, the payment and resolution of conflicts of obligations is concentrated through the bankruptcy procedure.
The tax claims themselves, which were not covered procedurally in the course of the bankruptcy action (art. 187, CTN) will have their material rights (value of the claim) received by the bankruptcy (art. 7-A, art. 83, III and art. 84, V).
Thus, all creditors, respecting the nature and generating event of each claim, will receive the outstanding balance of their obligations, through the normative interference of the bankruptcy process.
CONCLUSION
The expression first priority claim in Court-Supervised Reorganization is used as a synonym for the expression credit not subject to Court-Supervised Reorganization, the core of which is that judicial or legal recognition of the legal nature of the obligation will not bind the Creditor to the effects of renegotiation by the Court-Supervised Reorganization Plan, which will retain its rights and obligations originally contracted, without the interference of Law No. 11,101/2005. However, not every claim that would be considered first priority in the Court-Supervised Reorganization will be considered first priority in the event of Bankruptcy, and the triggering event and the terms of the agreement signed between the Creditor and the Bankrupt Debtor must always be analyzed. Furthermore, the expression “first priority claim” in Bankruptcy is not related to the way in which compliance with the defaulted obligation is sought, as it is in the case of Court-Supervised Reorganization; on the contrary, it is related to the legal order established for payment of ALL creditors, regardless of the nature of their claim, after liquidation (transformation into cash) of the Bankrupt Debtor’s assets.
While in Court-Supervised Reorganization, some creditors do not suffer the effects of Court-Supervised Reorganization, pursuing their claims without the interference of Law No. 11,101/2005 (first priority), in Bankruptcy, all creditors are subject to the bankruptcy procedure, receiving their claims with the interference of Law No. 11,101/2005, in articles 83 and 84, paying the defaulted amounts with precedence over other obligations (first priority).
Available in: https://www.migalhas.com.br/depeso/424181/credito-extraconcursal-na-recuperacao-judicial-e-na-falencia
Autor: Jhonatan Luis Marques Poiana • email: jhonatan.poiana@ernestoborges.com.br
