To collect or not to collect: deciding on enforcement or collection of bonds under statute of limitations

Introduction
Facts
São Paulo State Court
STJ
Comment

Introduction

Towards the end of 2021, the Brazilian Superior Court of Justice (STJ) issued a decision regarding Brazilian agribusiness bonds (for further details, see "Heavy clouds with a chance of rain? Not for agribusiness's bondholders, according to Brazil's Superior Court of Justice").

This was not the only bond submitted to the ruling of the STJ. Bank credit notes (CCBs) also came into question, in the context of a challenge to the statute of limitations for their collection.(1)

Facts

A Brazilian company filled a collection lawsuit against a debtor company, under the claim that the CCB issued by the debtor was due and unpaid.

The debtor challenged the creditor under the argument that the statute of limitations should be applied, considering the three-year period referred to in the Convention Providing a Uniform Law For Bills of Exchange and Promissory Notes (Geneva, 1930) (the Uniform Law).

The Uniform Law was passed by the Brazilian Congress in 1966 with Decree No. 57.663/66. It has been in force in Brazil since then.

São Paulo State Court

The São Paulo State Court dismissed the debtor's claim on the grounds that the three-year statute of limitations referred to in the Uniform Law was applicable only to the enforcement of a CCB, not to its collection.

The debtor appealed to the STJ, claiming that the São Paulo State Court ruling violated the statute of limitations under the Brazilian Civil Code, the Uniform Law and Law No. 10.931/2004, which allowed CCBs to be issued

STJ

At the end of 2019, a review of debtor's appeal began. In early 2020, Justice Ricardo Villas Boas Cueva dismissed the appeal on the grounds that it could not be trialed.

The debtor then filed a motion to allow the appeal to be reviewed by the Third Chamber of Justices of the STJ. This motion was granted in April 2021 and the Third Chamber began the trial.

After the sessions held in August and September 2021, the Third Chamber issued its final ruling, dismissing the appeal on its merits.

The Third Chamber's reasoning was as follows:

• Brazilian law admits two types of lawsuits regarding CCBs: enforcement lawsuits, as referred to in the Uniform Law, and collection lawsuits.
• Enforcement lawsuits, under the Uniform Law, have a three-year statute of limitations.
• The applicability of the Uniform Law to CCBs is admitted under section 44 of Law No. 10.931 and previous STJ case law.(2) Therefore, the enforcement of CCBs is subject to a three-year statute of limitations.
• After the three-year statute of limitations has passed, an enforcement lawsuit cannot be filed. In such cases, Brazilian law allows the creditor to file a collection lawsuit – which is not as expedited as an enforcement lawsuit – under the general statutes of limitations of the Brazilian Civil Code (section 206(5)(I)).
• The debtor's appeal had failed to demonstrate why STJ case law on the statute of limitations in CCBs should not be applied to the matter.

Justice Nancy Andrighi, agreeing with Justice Ricardo Villas Boas Cueva's ruling on the appeal, also added that:

• the creditor can opt between enforcement or collection of the CCB under Brazilian law, as it deems most adequate to the case; and
• the collection of a CCB is subject to the general statute of limitations and its five-year period.

The Third Chamber unanimously dismissed the debtor's appeal and the bond collection was ensured to the creditor.

Comment

CCBs are common bonds in Brazil, issued by legal entities or persons, as a promise of payment in favour of financial institutions or their equivalents. CCBs may also be issued in favour of foreign financial institutions. As a promise of payment, a CCB can be endorsed to another creditor (regardless of whether that creditor is a financial institution). The endorsement of a CCB to a third party is common in Brazil, given that banks and financial institutions can sell the CCB to other parties.

CCBs are quite frequently issued in bank loans and can be enforced, rather than collected. Enforcement exempts the creditor from filing for the recognition of the debt and can result in seizure orders against the debtor's assets. Collection, on the contrary, is filed when the judicial recognition of the debt is deemed. Only after a ruling granting the debt to the creditor may the creditor seek payment.

The STJ ruling referred to here is and will remain relevant, considering that it allows creditors to decide between the enforcement or collection of CCBs and the limitations for each.

For further information on this topic please contact Paulo Guilherme de Mendonça Lopes or Alexandre Paranhos Tacla Abbruzzini at Leite Tosto E Barros Advogados Associados by telephone (+55 11 3847 3939) or email ([email protected] or [email protected]).

Endnotes

(1) STJ – Third Chamber, Resp 1.940.996/SP, Rel Min Ricardo Villas Boas Cueva, j 21 September 2021, DJe 24 September 2021.

(2) In particular:

• STJ – Fourth Chamber, AgInt No. AREsp 1.525.428/PR, Rel Min Luis Felipe Salomão, j 5 November 2019, DJe 12 November 19; and
• STJ – Fourth Chamber, AgInt No. REsp 1.675.530/SP, Rel Min Maria Isabel Gallotti, j 26 February 19, DJe 06 March 2019.