Post by xyz2900 on Feb 11, 2024 11:16:00 GMT
The insolvent estate must appear as the defendant in all actions with patrimonial content. The unanimous understanding comes from the 3rd Panel of the Superior Court of Justice. In the case under trial, the fact that generated the debt was a loan of R$11,500, set out in a promissory note. The debt was not paid and the creditor did not collect it in court. When the debtor's civil insolvency was declared, the creditor requested the authorization of his credit, but the request was rejected because the promissory note was time-barred. With the rejection of the request, the creditor proposed a legal collection action to create the executive title to be authorized. The first instance understood that the insolvent estate owes nothing and that, in theory, the debtor is a signatory of the document.
The creditor appealed, but the extinct Court of Appeal of Minas Gerais understood that the collection action based on documents without enforceable force signed by an insolvent debtor must be filed against the latter's natural person, who has legal personality to support the demand, not against mass. The creditor appealed to the STJ. When considering the appeal, Minister Belize Email List Nancy Andrighi recognized that, by providing that “all creditors of the common debtor will compete in the insolvency judgment”, the Civil Procedure Code only determined that all those who can effectively be recognized as creditors, that is, who hold an enforceable title against the debtor, are subject to the attractive force of the civil insolvency court.
Anyone who holds a right that has not yet been recognized in court does not qualify, for the purposes of the process, as a creditor, and, therefore, does not fall within the provisions of this rule”, states the minister. For her, however, even if only enforcement actions are subject to the universal attractive force of insolvency, this does not mean that other actions cannot be proposed, in different courts, with the estate as defendant. For the rapporteur, with the prescription of the promissory note, it is necessary for the creditor to seek the constitution of his enforceable title by filing a lawsuit. “Despite the fact that civil insolvency does not remove the debtor's ability to appear in court, the insolvent estate must appear as the defendant in all actions with patrimonial content”, explains minister Nancy Andrighi. And she clarifies: such actions are not limited to the direct action referred to in article 784 of the CPC.
The creditor appealed, but the extinct Court of Appeal of Minas Gerais understood that the collection action based on documents without enforceable force signed by an insolvent debtor must be filed against the latter's natural person, who has legal personality to support the demand, not against mass. The creditor appealed to the STJ. When considering the appeal, Minister Belize Email List Nancy Andrighi recognized that, by providing that “all creditors of the common debtor will compete in the insolvency judgment”, the Civil Procedure Code only determined that all those who can effectively be recognized as creditors, that is, who hold an enforceable title against the debtor, are subject to the attractive force of the civil insolvency court.
Anyone who holds a right that has not yet been recognized in court does not qualify, for the purposes of the process, as a creditor, and, therefore, does not fall within the provisions of this rule”, states the minister. For her, however, even if only enforcement actions are subject to the universal attractive force of insolvency, this does not mean that other actions cannot be proposed, in different courts, with the estate as defendant. For the rapporteur, with the prescription of the promissory note, it is necessary for the creditor to seek the constitution of his enforceable title by filing a lawsuit. “Despite the fact that civil insolvency does not remove the debtor's ability to appear in court, the insolvent estate must appear as the defendant in all actions with patrimonial content”, explains minister Nancy Andrighi. And she clarifies: such actions are not limited to the direct action referred to in article 784 of the CPC.
