Cessão fiduciária de crédito e o seu tratamento nas hipóteses de recuperação judicial e falência do devedor-fiduciante

Abstract

The main purpose of this dissertation is to examine the fiduciary assignment of rights on movable assets and of credit instruments, as contemplated in article 66-B of Law No. 4,728, of July 14, 1965, as amended by Law No. 10,931, of August 2, 2004 widely known as “bank lock” (trava bancaria) – with a view to identifying the standing of legal scholars and court precedents and their approach in the event of debtor’s judicial restructuring and/or bankruptcy. This is because the 3 paragraph of article 49 of Law No. 11,101 of February 9, 2005 (“Judicial Restructuring Law – LRE”) determines that the “fiduciary owners of movable and immovable assets” are no longer subject to the effects of their debtor’s judicial restructuring. Most legal scholars and court precedents sustain that holders of credits assigned on a fiduciary basis fall under the category of “fiduciary owner of movable assets”, as established by such 3 paragraph of article 49 of LRE and, therefore, are not subject to the debtor’s judicial restructuring. On the other hand, a small number of legal scholars and court precedents sustain that the 3 paragraph of article 49 of LRE contains no express reference to “holders of credits assigned on a fiduciary basis” and, given that such paragraph is an exception to the general rule that all creditors are subject to the debtor’s judicial restructuring, its wording ought to be construed restrictively, for which reason such holders of the credits assigned on a fiduciary basis would be subject to the debtor’s judicial restructuring. Diverging views among legal scholars and court precedents on the matter bring about legal uncertainty as to the use of the fiduciary assignment of credits as a form of security. Financial institutions, on the one hand, are skeptical about the actual effectiveness of such form of security and that alone might impair the efficient assessment of the credit risk and the recovery of credits in the event of the debtor’s insolvency. On the other hand, companies undergoing financial crisis question the feasibility of an effective restructuring, particularly if their major creditors are banks. For all those reasons, it is important to look into the fiduciary assignment of credits and critically analyze the solution adopted by the lawmakers vis-a-vis the principles of preserving companies in crises as introduced by the LRE.