The Second Section of the Superior Court of Justice (STJ), when examining allegations of conflict of competence filed by an animal food supplement manufacturer has issued a decision stating that a company’s judicial restructuring does not prevent enforcement proceedings against its shareholders arising from bank debt when such shareholders figure as guarantors.
In the conflict of competence court proceeding, the shareholders applied for the suspension of the enforcement proceeding arguing that the restructuring plan filed by the company would encompass the payment of debts enforced against the guarantors.
In his vote, the Reporting Justice Marco Buzzi, on this point of law, ordered that the enforcement proceeding continue in parallel with the judicial restructuring proceeding, stressing that the enforcement proceeding was not filed against the company but against the company’s shareholders, identified as guarantors of the debt in question.
The Reporting Justice pointed out that the Court’s understanding establishes that creditors of a company in judicial restructuring have their rights and privileges reserved against co-obligators, guarantors and are entitled to redress, pursuant to the first paragraph of Article 49 of Federal Law No. 11,101/2005. However, in the case at hand, the Justice considered that such right and privileges are limited, the shareholders being liable up to the amount of their paid-in equity.
In his vote, the Reporting Justice Marco Buzzi stated that “differently from collective name entities, in which joint and several liability is inherent to their formation, in limited companies, the shareholders may restrict the losses, since they are liable only for the corporate capital, once fully paid-in”. He also pointed out that “the guarantor is liable for autonomous and independent obligations, demandable if the obligation was null, fake and inexistent. Thus, the acceptance of judicial restructuring does not prevent an enforcement proceeding filed against the guarantor to continue, considering the autonomous nature of the guarantee”.
