Créditos de bancos estrangeiros devem ser incluídos na recuperação

Por Valor Econômico

Os bancos perderam uma das mais importantes disputas envolvendo as garantias de natureza fiduciária ­ que detém bens do devedor até o pagamento total do empréstimo. A 2ª Vara de Falências e Recuperação Judicial de São Paulo, em decisão inédita, limitou o acesso a esses créditos. Considerou que instituições estrangeiras sem autorização para operar no Brasil não têm direito às garantias e devem se submeter ao plano de recuperação das empresas.

Esse posicionamento muda uma jurisprudência até então consolidada no país. Créditos de natureza fiduciária, independentemente de detidos por instituições nacionais ou estrangeiras, sempre ficavam de fora dos processos (são os chamados extraconcursais).

Não há dúvidas, para advogados, de que a novidade é ruim para os bancos. Fora dos processos de recuperação, as instituições receberiam integralmente os seus créditos. Dentro, as condições de pagamento podem ser alteradas por deságios, prazos de carência e parcelamentos.

Esse mesmo ponto, por outro lado, beneficia quem está tentando se recuperar. As garantias de natureza fiduciária são consideradas como ponto sensível às companhias em dificuldade financeira. Especialmente porque representam grande parte da dívida (mais de 50% na maioria das vezes).

“Essa decisão traz mais segurança para as empresas em recuperação, em razão de ter as garantias regularizadas aqui no Brasil, e também gera transparência ao processo”, diz a advogada Juliana Bumachar, do Bumachar Advogados Associados.

O entendimento da 2ª Vara de São Paulo, de limitar o acesso a esses créditos, se deu em uma disputa envolvendo a Zamin Amapá Mineração, que está em processo de recuperação judicial, e um sindicato de bancos estrangeiros que reúne quatro instituições (Intesa San Paolo, Canara Bank, State Bank of India Bank e Syndicate Bank).

O juiz Paulo Furtado, que julgou o caso, entendeu que os bancos estrangeiros não têm a “qualidade de credores fiduciários”. Ele interpretou a questão conforme a Lei nº 4.595, de 1964, que regula o sistema financeiro nacional.

“Se a garantia de natureza fiduciária foi instituída pela Lei 4.728/65 para melhorar a segurança do recebimento do crédito concedido no mercado financeiro nacional, regulamentado pela Lei 4.595/64, claro está que trata­se de uma garantia exclusiva para instituições financeiras nacionais e estrangeiras autorizadas a funcionar no Brasil”, diz o juiz na decisão.

Furtado enfatiza ainda que o fato de o empréstimo ter sido registrado no Banco Central ­ como ocorreu no caso julgado ­ não significa que as instituições financeiras estrangeiras tenham sido autorizadas a funcionar no país. “A situação é distinta”.

Todas as garantias fiduciárias às quais os bancos estrangeiros defendiam ter direito foram anuladas pelo juiz. E as instituições foram, então, consideradas como credores concursais. Elas serão incluídas nas classes II (dos credores com garantia real) e III (dos quirografários, que não têm garantias e geralmente são os últimos a receber.

A decisão, para advogados que atuam para os credores, é polêmica. Os especialistas consideram que esse entendimento, se mantido nas instâncias superiores, poderá impactar o mercado. O advogado Domingos Refinetti, do escritório Stocche Forbes, acredita que restrições impostas às garantias de natureza fiduciária tendem, por exemplo, a dificultar a captação de recursos fora do país.

“Só sai para tomar empréstimo no exterior quem consegue juros mais baixos do que conseguiria no Brasil. E uma das consequências será certamente o aumento da taxa de juros. Então esse crédito ficará mais restrito”, diz o advogado.

Ele sustenta ainda que a Lei de Recuperação Judicial e Falências (Lei nº 11.101, de 2005) não faz distinções. “Ela pura e simplesmente classifica os créditos e os que têm garantia em alienação fiduciária são considerados extraconcursais”.

O caso julgado pela 2ª Vara de São Paulo trata de um empréstimo de cerca de US$ 130 milhões negociado pelo Grupo Zamin com os bancos estrangeiros. Esses valores foram usados, em 2013, para a aquisição de uma mina da Anglo American.

Praticamente todo o grupo foi dado em garantia aos bancos. No processo constam, por exemplo, a totalidade de ativos da empresa adquirida, além da produção do minério de ferro e ações da própria companhia e de subsidiárias.

Representantes do Grupo Zamin no caso, os advogados Antonio Mazzucco e Luiz Donelli, do escritório Mazzucco, Donelli e Mello Sociedade de Advogados, argumentam, no entanto, que as instituições estrangeiras só poderiam funcionar no país, nos mesmos moldes das nacionais ­ tendo, por exemplo, acesso a essas garantias ­, mediante autorização prévia do Banco Central ou decreto do Executivo. Sem esse cadastro, afirmam os advogados, os estrangeiros se sujeitam a regras diferentes.

“Bancos estrangeiros oferecem juros mais baixos e depósitos compulsórios menos elevados do que os brasileiros”, pondera Donelli. “Então o sistema conseguiu, como contrapartida, algumas garantias específicas para que os bancos brasileiros pudessem competir em igualdade com os bancos estrangeiros”, acrescenta, justificando, assim, a limitação das garantias de natureza fiduciária.

Os bancos ainda podem recorrer da decisão. Fontes próximas ao processo chamam a atenção que há ainda chances, a partir de novos argumentos jurídicos, de o entendimento ser revertido em segunda instância.

Especialmente porque, em um outro processo também envolvendo a Zamin, o Tribunal de Justiça de São Paulo se manifestou em uma discussão que tratou da validade da alienação fiduciária sobre bens fungíveis (que podem ser substituídos por outros da mesma espécie) e infungíveis (que não podem ser substituídos). Os desembargadores decidiram que ambos estavam sujeitos às garantias.

A importância desse julgado, segundo um advogado afirmou ao Valor, é o fato de que as situações são regidas por leis diferentes (Lei do Mercado de Capitais e Código Civil). Nesse caso, sustenta, o tribunal, quando analisar a questão do direito dos bancos estrangeiros, poderia ainda se valer do Código Civil ­ diferente do que fez o juiz da primeira instância, que aplicou a lei que regula o mercado de capitais. “O Código Civil não faz distinção entre integrantes ou não do sistema nacional”, afirma.

Representantes dos bancos estrangeiros no caso julgado pela 2ª Vara de São Paulo foram procurados pelo Valor, mas preferiram não se manifestar.

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