Keeping the business finances healthy has its challenges, even more so when it is necessary to take external values into account, how the economic condition of the country. And to resolve the situation with creditors, an alternative to lengthy and bureaucratic processes could be theextrajudicial recovery, direct negotiation procedure between company and creditor.
According to the report of theBrazilian Observatory of Extrajudicial Recovery (OBRE), from the consultancyBiolchi Business, from 2021 until now (July 2024), were identified100 extrajudicial recovery cases in Brazil, and 157 since the enactment of Law 11.101/2005, whose text was altered by theLaw 14.112/2020, in effect since 2021. A recent example was the extrajudicial recovery of theBahia Houses, that in 2024 restructured a debt of R$ 4,1 billion that had as creditors theBradescoand theBank of Brazil.
The extrajudicial recovery, unlike judicial recovery, there is no direct intervention of the judiciary. Through a mediator, what can be the role of the lawyer who will draft the document, both parties (the entrepreneur and one or more creditors) need to reach an agreement for the payment of the debt. The duration of the process is usually much shorter than a judicial recovery. It is as explained by thecorporate lawyer Cristina Wadner, from the officeCristina Wadner Associate Lawyers:
"It is a much more agile and less complex alternative", because in the case of judicial recovery, the process is submitted to a judge, who will supervise the debt repayment plan, in addition to appointing an administrator. And assuming there are twenty creditors involved, everyone has a deadline to speak in the records. That's why, in some cases, "the extrajudicial recovery can be a more beneficial solution for the business", exemplifies the lawyer
These cases, explainWadner, involve companies with more straightforward and less complex debts. Among the criteria for companies that meet the tax requirements, are
- It is necessary to have been engaged in business activity for more than two years
- Not having a pending request for judicial recovery and not having requested judicial recovery for two years
- There should be no declared bankruptcy
- Not having been convicted or not having as an administrator or controlling partner a person convicted of fraud crimes (fraudulent acts).
Already according to theLaw 11.101/2005, public companies and mixed economy companies cannot initiate an extrajudicial recovery process; public or private financial institutions; credit cooperative; consortia, complementary pension entity; healthcare assistance plan operating company; insurance company; capitalization society and other equivalent entities
"There are also credits that cannot be subject to extrajudicial recovery", what are labor credits, the consequences of workplace accidents, taxpayer, credit arising from leasing, purchase and sale credit or promise of property with an irrevocability clause and exchange contract. These are the credits that are excluded. If the criteria are met, the company can carry out extrajudicial recovery, rememberCristina Wadner.
