how creditors can face judicial recoveries

Judicial recoveries are increasing every year, driven by an economic environment in which the Selic rate puts pressure on companies’ costs and makes credit more expensive. Even with the expected drop in interest rates, the pace of reduction should be impacted by the external scenario, adding more uncertainty to companies seeking to settle their accounts.

Given this situation, lawyer Mariana Zonenschein, founding partner of Zonenschein Advocacia, warns that creditors need to adopt preventive stances and use technological tools to guarantee the receipt of their credits. According to her, this applies to both judicial and legal recoveries.

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Shielding the contract: the role of the ‘co-obligee’

According to Zonenschein, the creditor’s defense begins when the contract is drawn up. She explains that, at this stage, it is essential not only to think about receiving the money in an ideal scenario, but to foresee the possibility of default and establish safe exit routes. The solution is to include a “co-obligor” in the contract, that is, someone who must assume the debts in the event of the company’s financial problems.

She warns that a contract signed without guarantees demotes the creditor to the category of “unsecured”, placing him at the last place in the payment queue in the event of a judicial recovery. In the case of extrajudicial recoveries, which are made in common agreement with creditors, the guarantee is only valid if the co-obligor participates in this negotiation.

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Zonenschein states that the requirement for solid clauses and, above all, the inclusion of a “co-obligor”, will provide legal support so that, even if the main debtor company enters RJ, the creditor continues with the execution of the debt against the co-obligor.

“In many contracts, the existence of co-obligation can allow the creditor to seek satisfaction of the credit directly against these guarantors, regardless of the renegotiation carried out with the debtor company”, he states.

Technology and intelligence are creditors’ weapons

To obtain a privileged position in the line of creditors and recover credit quickly, updated information is vital. Zonenschein argues that law focused on credit recovery needs to be closely linked to technology to reduce what she calls “informational asymmetry” between the parties, since “the debtor knows where the money is” and often creates companies to hide it.

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The specialist, who is currently developing a study analyzing these systems, highlights fundamental points in the modernization of judicial collections. She cites data mining and artificial intelligence systems that can map assets, identify debtors and expose the formation of economic groups.

As a result, the joint application of a well-written contract, technological systems and active involvement in the Judiciary increase the proportion and speed of receipt.

However, not all technologies are accessible. There are platforms that can be freely contracted, but there are also technological tools that require authorization from a judge, such as Cryptojudaimed at searching for cryptocurrencies, which can help find company resources that do not appear in usual routines.

These technologies can allow rapid cross-referencing of information to unlock old runs. “We can make precise petitions, indicating exactly where the seizure should be carried out, which makes the work of Justice easier,” he explains.

Fight against fraud

Zonenschein states that, in crisis scenarios, it is possible for fraudulent maneuvers to occur, such as transferring money and healthy assets to a new company, leaving only the debts in the company that later declares judicial or extrajudicial recovery.

In these cases, the updated creditor may use repressive means, such as the Incident of Disregard of Legal Personality (IDPJ). “If abuse of rights and managerial unity between companies are proven, this instrument allows all CNPJs involved to be brought into the execution, forcing them to answer for the debts”, says the lawyer.

Mariana Zonenschein cites the historic case of the Mendes Júnior group as an example of the importance of the IDPJ. The conglomerate had several companies, but only one of them applied for RJ, leaving the assets protected by the other CNPJs.

The strategy to combat the maneuver was to establish the IDPJ to demonstrate that there was a single command and demand that all companies in the group respond for the credits of the one that was in recovery.

The expert warns that these tools provide crucial support to the creditor, as the judge does not proceed with the execution alone. She states that successful recovery of values ​​requires the creditor’s lawyer to act quickly and strategically, organizing the information and presenting the arguments in a visual and clear way to the judge.