In a recent judgment, the Third Panel of the Brazilian Superior Court of Justice (STJ) sent a clear message to the market: in an out‑of‑court reorganization (recuperação extrajudicial), the novation set out in the plan only binds creditors who have expressly adhered to the agreement.
Those who did not participate in the plan, either because they were not listed or because they did not sign, cannot be compelled to accept new maturities, haircuts, or payment conditions.
Below are 3 practical takeaways for creditors:
1. Novation is limited: the out‑of‑court plan only affects creditors who adhered: In the case at hand, a company under out‑of‑court reorganization entered into a plan with part of its creditors, setting new payment terms for the debts, which were deemed novated after court ratification. One creditor, however, did not adhere to the agreement and continued to enforce its claim under the original conditions.
In court, the debtor tried to extend the effects of the plan to this creditor, arguing that the out‑of‑court reorganization had promoted a general novation of the debt and that, therefore, the enforcement should be suspended or limited to the terms of the ratified plan. When examining the appeal, the reporting Justice, Humberto Martins, stressed that the Third Panel has already settled the understanding that novation cannot be recognized in favor of a creditor who did not take part in the plan.
In line with precedents such as Special Appeal 2.197.328, the Panel reinforced the contractual nature of out‑of‑court reorganization: unlike judicial reorganization, it is not universal in scope. Its effects reach only those creditors who have expressly adhered to the plan. In practice, this means that a non‑signing creditor preserves its original collection rights and may continue enforcement under the terms initially agreed.
2. Out‑of‑court reorganization does not stay actions and enforcements by creditors outside the plan: In the same judgment, the Third Panel also addressed whether actions and enforcements related to claims not submitted to the plan are stayed. The company sought to suspend the enforcement of an extrajudicial title arising from services provided by an engineering firm, arguing that this claim would be covered by the out‑of‑court reorganization.
The sensitive point was that this claim was not listed in the plan, nor had the creditor adhered to it. Both the Rio de Janeiro State Court and the STJ were categorical: the filing of a request for ratification of an out‑of‑court reorganization plan does not suspend rights, actions, or ongoing enforcements in relation to creditors who are not subject to the plan, as provided in article 163, paragraph 2, of Law 11.101/2005. Unlike judicial reorganization, where, as a rule, all pre‑petition claims are affected by the approved plan, even if they were not formally filed in the proceeding, out‑of‑court reorganization operates on an opt‑in basis.
If the claim was not listed or the creditor did not consent, there is no automatic binding effect or stay. Justice Humberto Martins upheld the Rio de Janeiro court’s interpretation that out‑of‑court reorganization does not interfere with the freedom of non‑subject creditors to continue collecting, emphasizing that the law allows the debtor to negotiate with specific creditors without dragging all of them into the plan.
3. Key points for creditors: preserve enforcement autonomy and verify whether you are subject to the plan: From a creditor’s standpoint, this decision underlines two essential points of attention. First, in an out‑of‑court reorganization, there is no “osmosis novation”: if your claim is not listed in the plan or you have not expressly adhered to it, you do not lose the right to enforce under the original terms, nor are you forced to accept extensions, discounts, or grace periods you never agreed to. Second, the mere filing of a request for ratification of an out‑of‑court plan does not, in itself, create a general stay period.
Therefore, the suspension of actions and enforcements is limited to the claims effectively subject to the plan; those outside remain free to initiate or continue collection measures, including enforcement proceedings. For creditors, this opens room for a more active strategy: closely monitor whether your claim has been included, assess whether it makes economic sense to adhere (or not) to the proposed conditions, and, as long as you are not bound, preserve individual enforcement as both a pressure tool and a way to protect the value of your claim.
