Special Purpose Companies (SPC) with separate corporate assets intended for a given project, are not subject to judicial reorganization, as this type of owner’s equity is independent from that of the developer. Therefore, it is not responsible for debts other than those of the company.

Based on this understanding, the Superior Court Justice Ricardo Villas Bôas Cueva revoked the effects of a previous decision to prevent the continuation of the judicial recovery process of developer João Fortes Engenharia in relation to the SPCs with separate assets. The court also prohibited the approval of the recovery plans previously submitted until the final judgment on the special appeal. The decision was rendered on June 6.

In May 2020, the 4th Business Court of Rio de Janeiro accepted João Fortes Engenharia’s request for judicial recovery. The group, made up of 63 companies and known for doing business in the real estate sector for almost 70 years, has an estimated debt of R$ 1.3 billion.

Banco Bradesco filed an interlocutory appeal against the decision. The financial institution argued that the group’s special purpose companies should not be part of the judicial reorganization. This is because they have separate corporate assets. And Statement 628 of the VIII Civil Law Conference established that the separate assets are not subject to the judicial recovery of the parent company. Bradesco also asked for the disclosure of the assets of the administrators and holding entities of the SPCs.

The 7th Civil Chamber of the Court of Justice of Rio de Janeiro excluded, in October 2020, the SPCs with separate assets from the judicial recovery of João Fortes Engenharia. However, the developer appealed to the STJ, and Cueva granted an injunction to suspend the TJ-RJ decision because the Court did not have a consolidated opinion on the issue.

The scenario changed in May, when the 3rd Panel of the STJ denied a special appeal filed by the Esser group against the judgment of the Court of Appeals of São Paulo that rejected its request for judicial reorganization. The court concluded that special purpose companies that operate in real estate development and manage separate assets are subject to a regime created by the Land Development Law (Law 4,591/1964) which makes them incompatible with judicial reorganization.

Based on this decision, Bradesco, represented by ASBZ Advogados, asked for the preliminary injunction to be revoked. In his decision, Ricardo Villas Bôas Cueva pointed out that, the judgment of the 3rd Panel, even though it did not state that submitting SPCs with separate assets to judicial reorganization is absolutely impossible, established that the separate assets cannot be contaminated by other legal relationships established by the group’s companies.

In addition, the 3rd Panel decided that credits arising from contracts for the sale of real estate units, as well as obligations arising from the activity of construction and delivery of said properties, are not subject to novation.

“Given this context, before a final decision is rendered on the subject in question, it would be precipitous to homologate judicial reorganization plans in which the installment of the debt in quarterly installments was proposed, as it could imply novation of the conditions initially agreed”, said the judge.

Article published by the Consultor Jurídico (ConJur)

Click here to read the full article: https://www.conjur.com.br/2022-jun-17/stj-exclui-spe-patrimonio-afetacao-recuperacao