The State Court of Santa Catarina (TJSC) once again highlighted a point that has structured the logic of credit in the country for years: credit guaranteed by fiduciary lien remains fully extra-contractual until the guarantee is effectively executed.
In the specific case, a bank sought to reverse a decision issued in judicial reorganization, later converted into bankruptcy, which limited the extra-contractual nature to the value of the asset and pushed any residual balance to the unsecured class. The Court, however, concluded that, while the asset is not sold, there is no definition of a remaining balance. The assessment only exists after execution, as the Brazilian Superior Court of Justice has repeatedly recognized.
The TJSC ruling is based on 3 main premises:
1. Usefulness of the controversy preserved: The conversion of judicial reorganization into bankruptcy does not render the debate moot. The credit verification acts carried out in the reorganization are fully usable in the bankruptcy process, pursuant to Article 80 of the Brazilian Bankruptcy and Reorganization Law (LREF).
2. Full extra-bankruptcy status: Until the sale of the asset, the fiduciary credit remains outside the effects of both judicial reorganization and bankruptcy, according to Article 49, § 3, of the LREF.
3. Surplus balance only after the sale: Only after the execution of the guarantee will any remaining balance be determined, which, if it exists, will then be classified as unsecured. Before that, any attempt at classification is premature and legally inconsistent.
The decision reinforces something fundamental to the rationality of credit: predictability. Fiduciary alienation was created precisely to eliminate the risk of asset dilution. When one attempts to anticipate classification before execution, this logic is broken – and the TJSC, correctly, did not allow this shortcut. By reaffirming that its extra-contractual nature lasts until execution, the Judiciary preserves the coherence of the system, the binding force of contracts, and the functionality of financial operations that drive the real economy.
Furthermore, the ruling strengthens procedural efficiency by allowing the use of acts from judicial reorganization in bankruptcy proceedings.
