The start of the two-year period for concluding judicial reorganization is not altered by amendments to the plan.

When there is an amendment to the judicial reorganization plan, should the starting point of the two-year period referred to in article 61, caput, of Law 11.101/05 be the date of the granting of the judicial reorganization or the date on which the amendment to the plan was approved? The controversy was judged this Tuesday, the 5th, by the 3rd panel of the STJ.

The law on bankruptcy and reorganization establishes the starting point of the two-year period for the conclusion of judicial reorganization:

"Article 61. Once the decision provided for in Article 58 of this Law has been issued, the debtor shall remain in judicial reorganization until all obligations provided for in the plan that become due within 2 (two) years after the granting of the judicial reorganization have been fulfilled."

The appellant argues that the Rio de Janeiro Court of Justice (TJ/RJ) did not address the impossibility of counting the two-year period for the conclusion of judicial reorganization from the date of approval of the plan when it is completely modified by addenda subsequently approved by the creditors. According to the appellant bank, the starting point for the period for concluding the reorganization should be the date of the last amendment.

According to Minister Ricardo Cueva, the rapporteur for the appeal, the claim does not hold up. His Excellency emphasized that, once the main objective of the process (the approval of the judicial reorganization plan) has been achieved and the initial phase of its execution has ended, when the proposals begin to be implemented, the company should return to normal, so as to deal with its creditors without intermediaries.

In this scenario, the rapporteur continued, the presentation of amendments to the recovery plan presupposes that it was being complied with and, due to situations that only became apparent later, had to be modified, which was accepted by the creditors.

"Therefore, there is no actual disruption of the execution phase, which is why there is no justification for modifying the starting point for calculating the two-year period for the conclusion of the judicial reorganization."

Thus, Cueva stated, after the two years following the granting of judicial reorganization, it must be terminated, "either through the fulfillment of the obligations established for that period, or through the eventual declaration of bankruptcy." In the vote presented to his colleagues, Cueva further adds that the existence of pending credit claims/objections does not prevent the termination of the reorganization.

The panel unanimously agreed with the rapporteur's vote.

Case: REsp 1.853.347

Source: Migalhas