Fourth Class of the STJ does not see abuse in a bank vote against recovery plan that reduced your credit

Recently, the Superior Court of Justice (STJ) reformed a decision of the São Paulo Court of Justice (TJSP) which considered abusive the vote of a creditor bank against the approval of a judicial recovery plan.

In this case, the court of first degree, when considering the creditor's abusive vote against the approval of the plan, applied the CRAM Down. Through this institute, the debtor's bankruptcy is avoided by rejecting the recovery plan, imposing the plan to creditors, provided that certain requirements are observed, namely: (i) the favorable vote of creditors who represent the most of Half of the value of the credits present in the Assembly, regardless of the class; (ii) the approval of most classes of creditors; (iii) the favorable vote of 1/3 (one third) of the class creditors who have rejected the plan.

The TJSP, when judging the bank's appeal, maintained the recognition of abuse in the exercise of the right to vote, since, according to the Court, the Bank was unable to demonstrate that the decree of bankruptcy would be more beneficial to him than granting recovery along the lines of the plan presented.

In this context, the creditor has appealed to the STJ, claiming that CRAM Down has been determined without fulfilling all its requirements. Rapporteur Minister Antonio Carlos Ferreira, when he assesses the appeal, thought that, in fact, two of the three requirements were not met, as the bank's credit corresponded to about 95%, and that there was no favorable vote of 1/3 of the class creditors who rejected the plan. In addition, the rapporteur concluded that the bank did not intend to decree bankruptcy, but the convening of a new meeting of creditors for the approval of a new plan, legitimately seeking the satisfaction of its credit. It was also considered that the bank was a creditor of almost 95% of the debtor's obligations, and that the plan imposed a drug of 90%.

Thus, the STJ concluded that there is no abuse in the right to vote, mainly because it would not be reasonable to impose on the bank that it agreed unconditionally with the almost total reduction of its credit. Therefore, the creditor's appeal was dismissed, determining the summons of the debtor company to present a new judicial recovery plan.