STJ validates sale of property for 2% of appraisal value in bankruptcy
By: Marcela Villar
Source: Valor Econômico
The 3rd Panel of the Superior Court of Justice (STJ) decided that the sale
of real estate for 2% of the appraisal value in bankruptcy is valid. In this case, a creditor
questioned the auction of land of 20 thousand m² for R$ 110 thousand in an auction in the
bankruptcy of Bio Energias Comercializadora de Energia. It was valued at R$
5.5 million.
For the justices, it is not appropriate to apply the concept of "vile price" (sale by value
interior to that of the public notice or less than 50% of the evaluation) in bankruptcy actions. A
decision was unanimous and the vote of the rapporteur, Justice Ricardo Villas Bôas
Cueva.
The understanding divided lawyers. Some believe that the STJ has brought legal security
, as it reinforces the law's provision that vile price does not apply to
disposals in bankruptcies. This is because the intention is to optimize the assets, liquidate them
quickly and allow the bankrupt to return to economic activity.
The insolvent company Bio Energias, the judicial administrator of the case, the
Public Prosecutor's Office of the State of São Paulo (MPSP), the Court of Appeals of the
State of São Paulo (TJSP) and one of the creditors understand the opposite. For them,
the sale for a derisory amount jeopardizes payment to creditors and goes against the
principle of maximization of assets.
Bio Energias will appeal, according to the bankrupt's lawyer, Danilo Palinkas, from
Palinkas Advogados. The land is the most relevant asset of bankruptcy and the hope
for creditors to receive something. The company's total debt is R$ 32 million
and, according to the judicial administration, only R$ 40
mil.
The justices analyzed an appeal by engineer Celso Jose Lins e Silva Alvarez
Prado, who took the property in the auction and sought to reverse the decision of the TJSP that
annulled the auction The sale was questioned by Companhia Energética de São
Paulo (Cesp), a creditor with an exposure of R$ 9 million. Cesp, in the records, alleges
damage to creditors, in addition to the unjust enrichment of Celso Prado.
According to the lawsuit, the property, located in Itapecerica da Serra (SP), was
put up for sale three times, between January and February 2023. The first
call stipulated an initial bid of R$ 5.5 million. In the second, the minimum would be
50% of the appraisal value, but there were no proposals. In the third, it was foreseen
in the public notice that "the good will be delivered to whoever offers the highest value".
As Celso Prado gave the highest bid, of R$ 110 thousand, he was the winner. The judge of the
case validated the auction, as there was no defect or irregularity. In the STJ, the
understanding was similar.
The controversy revolves around the interpretation of articles 142 and 143 of Law No
11.101/2005 that remove the concept of vile price in bankruptcy disposals,
in view of the principles of article 75 of the law that aim to maximize assets and protect
creditors. In the TJSP, the judges decided that even though the law having >
to creditors".
In the STJ, Justice Ricardo Villas Bôas Cueva reformed the judgment of the court
paulista, as he understands that the concept of low price does not apply in bankruptcy
bankruptcy disposals. "Respecting the legal formalities, ensuring competitiveness,
with the wide dissemination of the auction or other form of sale chosen, it >
He also stated that no irregularity was demonstrated in the challenge. And that
disputes based on the sale value "will only be received if
accompanied by a firm offer from the challenger or a third party for the acquisition of the
asset". "In view of the non-presentation of a proposal for the best price, it is not
possible to annul an auction of a property in which the formalities
legal formalities were respected, based solely on the allegation of auction for a low price", said
Cueva, in the vote.
For Rodrigo Garcia, partner at Galdino, Pimenta, Takemi, Ayoub, Salgueiro,
Rezende de Almeida Advogados, the decision brings legal certainty to those who
buy assets in bankruptcy. "Many judges and courts make the law more flexible, so the
STJ helps to standardize the interpretation. The decision was technical," he says. As
the legal formalities were observed, there would be no reason to annul the
auction, in his view.
But Garcia ponders that observing the "legal minimum" does not always maximize the
value of the asset. "The public notice alone generates publicity, but it is not always wide
advertising is capable of increasing competition and maximizing the value of the asset," >
Danilo Palinkas says that he did not seek a broker because it is uncommon in these
processes. "If you put someone, it can be seen as if the company was
trying to direct," he says. Regarding the STJ's understanding, the lawyer states
that removing the concept of vile price harms the collectivity of creditors. "It is
necessary to make an interpretation together and specifically with the principle
of maximization of assets."
This is also what the bankrupt's judicial administrator, Edson Freitas de
Oliveira, from Suporte Serviços Judicial, thinks. "There were no other attempts without
successful sale of the property, so that it would be reasonable to justify the sale for
price well below the valuation due to difficulties occurred in the sale
of the property."
Valor was unable to locate Celso Prado's defense. The defense of Cesp,
made by Bichara Advogados, declined to comment.