It is common for financial creditors to avoid being subject to the effects of a possible judicial reorganization of their debtors by imposing the execution of receivables assignment agreements. Such ancillary business, however, must contain sufficient elements to specify the assigned credits, under penalty of invalidity. This is what the 2nd Chamber of Business Law of the State of São Paulo recently decided when it denied Banco do Brasil’s appeal and submitted its credit to a judicial reorganization process.
In his vote, Associate Justice Claudio Luiz Bueno de Godoy outlined the recent evolution regarding the assumptions of validity and effectiveness of trust assignment agreements. In a first moment, he pointed out that the 2nd Chamber, adopting the STJ’s position, has recently sedimented the understanding that the registration of the instrument in a deeds and documents notary’s office is unnecessary for the fiduciary assignment to exclude a credit from judicial reorganization. However, on the issue of the need to specify the guarantee, he noted that the STJ had not yet established a definitive position, which led him to adopt the same position previously applied by the corporate chamber.
In the specific case, Banco do Brasil’s credit was guaranteed by fiduciary assignment contracts that provided for the delivery of trade notes without specifying them, “limiting themselves to establishing an overall ceiling of 125% of the value of the guaranteed obligation”. Quoting the same judge Francisco Eduardo Loureiro, the reporter pointed out that the regulation of real guarantees contains a specialization rule, which imposes on the creditor the burden of including in the contract minimum identification elements of the credits assigned as guarantee. Because the instrument lacked such data, the bank’s appeal was dismissed and the first degree sentence was upheld.