By: Vitor Anthony Ferrari and Ivan Kubala
It is not uncommon for a creditor to be involved in a court-supervised reorganization proceeding, but, due to the peculiarities of the procedure provided for in Law 11101/05, not know exactly how to act, which may result in the loss of important deadlines, such as those related to the credit discussion that he has with a certain company that is under reorganization.
This scenario usually occurs when the creditor is not assisted by a lawyer, but it is also very common with those who have lawyers who are not familiar with the judicial reorganization procedure.
The discussions involving credits are certainly the most relevant to creditors, which is why it is important to be aware of the procedures provided for in the Judicial Reorganization and Bankruptcy Law, under penalty of losing your rights.
Therefore, it is necessary to bear in mind that there are two moments for creditors to discuss the amount, rating or even the subjection of their claims to the judicial reorganization process.
The first moment starts after the publication of the creditors list presented by the company under judicial reorganization and is provided in article 7, paragraph 1, of Law 11.101/05. From this moment on, the creditor, whether or not listed, may, within 15 days, submit to the Trustee a qualification request (in case his or her credit was not included in the list) or a divergence request, in case he or she wishes to discuss the amount, rating or other issues related to his or her credit.
It is important to emphasize that this first tool is not directed to the Judge of the process, that is, it is not presented in the judicial reorganization process, but directly to the Judicial Administrator, in an administrative manner, either by e-mail or any other form that may be established. Many creditors present their requests directly to the Judge, which are denied due to the procedure inadequacy, which may result in the loss of the legal term.
The second moment begins with the publication of the creditors list presented by the Trustee, which is also published for all creditors knowledge, and is provided for in article 8 of Law 11.101/05. As of publication of this second list of creditors, they will have 10 days to file their opposition, through which they may also discuss issues related to their respective claims.
At this second moment, however, the petition is presented to the judge of the judicial reorganization proceeding and will receive the manifestation of the Trustee and of the company under judicial reorganization, after which it will be appreciated by the magistrate.
What if the creditor allows both deadlines to elapse and does not file a proof of claim or opposition?
Before the reform promoted by the approval of Law no. 14,112/20, the law provided for the possibility of late filing of the proof of claim and, with time, the doctrine and jurisprudence were establishing an understanding of admitting the figure of late opposition, although the matter still generated debates among the operators of the law.
With the changes brought about by the aforementioned law, it seems that both the habilitation and the late opposition of credit are now accepted, as can be seen in article 10, paragraphs 7 and 8, of Law 11101/05.
The fact is that the flexibilization of the opportune moment to submit the mentioned documents contradicts the very provision of the law and, even with the advent of the new legislation, still generates many debates, mainly in the jurisprudential sphere, which is why it is important that creditors pay attention to the deadlines and procedures provided for in the Judicial Reorganization Law, so as to ensure that their claims are duly and timely analyzed.