In a recent decision by the Third Panel of the STJ (REsp 1899107 – PR), the issue regarding the determination of the suspension of execution against the co-obligors of the company under judicial recovery took on new jurisprudential contours.

This is because the Court once again ratified the understanding regarding the termination of the execution against the debtor and the suspension against the co-obligors due to the novation that occurred due to the approval of the judicial recovery plan by the creditors and, in particular, to the creditor who specifically agreed to the clause for the suppression of guarantees provided therein. This is because the clause that provides for the suppression of guarantees is only effective for that creditor who is the holder of the guarantee and who expressly agrees to it at the time of the vote on the plan in a meeting of the assembly.

According to the rapporteur of the appeal, Minister Ricardo Villas Bôas Cueva, “The controversial issue is limited to defining whether it is a case of extinguishing the execution of an extrajudicial executive title filed against the company in judicial recovery and the co-obligors of the title in the event that the holder of the credit agrees with the clause for the suppression of guarantees inserted in the judicial recovery plan.”
Thus, based on the new judgment, it was understood that, in relation to the co-obligors, from the approval of the payment plan and the granting of judicial recovery, the executions that are being processed against them must remain suspended until the end of the period of judicial supervision. In relation to the recovering party, due to the novation, in the event of non-compliance with the plan, the consequence is the conversion of the judicial recovery into bankruptcy, according to Law 11.101/05.

Finally, the Rapporteur Minister also highlighted that “in the event of non-compliance with the plan after the judicial inspection period, the novation becomes definitive, under the terms of article 62 of Law 11.101/2005, and it is up to the creditor to request specific execution of the plan (judicial executive title) or bankruptcy based on article 94, paragraph III, item “g”, of Law 11.101/2005.”

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