Recuperação judicial ou revisional contra banco?

Por Jus

A recessão trouxe profundas consequências às empresas de toda a sorte, na atual conjuntura. Na busca de uma tábua de salvação, surge a dúvida entre os empresários e seus advogados, sobre qual o melhor caminho para se evitar o fim: a Recuperação Judicial ou a Ação Revisional Bancária. Enfrentemos os principais pontos desta questão, de forma dinâmica, e pensemos juntos nessa escolha.

Recuperação judicial, ou revisional, tem sido dúvida frequente de empresários que ao longo dos últimos 3 anos vêm aumentando o comprometimento de seu caixa com o pagamento de empréstimos bancários contraídos quando a demanda estava aquecida e havia farta disponibilidade de crédito.

Sem acesso a dinheiro novo, com a demanda fraca em vários setores da economia e depois de exauridas as medidas de redução de custos na sua própria empresa, o empresário constata que sem uma imediata moratória caminhará a passos firmes para o colapso.

Se a empresa é econômica e financeiramente viável, com resultados operacionais positivos, submetida, porém, aos brutais efeitos de uma longa e persistente recessão, é do interesse geral que ela se mantenha no mercado gerando empregos, renda, tributos e resultados futuros para seus sócios.

O primeiro desafio do empresário é de ordem pessoal, porque reconhecer a necessidade de uma moratória desperta emoções muito negativas. Estudos mostram que, à primeira reação de negação (“denial”), se seguem sentimentos de perda de auto estima, medo, raiva, vergonha e tristeza.

Entendendo que esses sentimentos são naturais em todos que experimentam essa situação, o empresário deve tentar encarar a realidade no menor tempo possível e tomar sob seu controle as finanças da empresa, partindo para a tomada das decisões necessárias para superar a crise financeira.

A opção pela “revisional contra bancos” está atrelada à suspensão do pagamento das obrigações contraídas apenas com as instituições financeiras, o que fará com que os bancos credores ajuízem “ação de execução” contra a empresa e contra os sócios avalistas.

Na recuperação judicial (“RJ”), por outro lado, todos os credores da empresa (exceto o fisco e outras exceções legais) se sujeitarão aos efeitos da decisão judicial que determinar o seu processamento: bancos, credores hipotecários, fornecedores, representantes comerciais, empregados e outros.

A opção, portanto, é entre uma moratória que afetará (quase) todos os credores da empresa (recuperação judicial) e uma moratória que atingirá apenas os credores financeiros, seguida do ajuizamento de ação revisional que procurará encontrar algum crédito dentro daquilo que foi pago ao banco.

Alguns efeitos, porém, ambas, RJ e revisional, têm em comum: (i) a empresa e os sócios (pelos avais) vão para o SERASA, (ii) a empresa somente obterá crédito a taxas superiores ao do Sistema Financeiro, (iii) os sócios serão executados pelos avais ou hipotecas, e (iv) os fornecedores restringirão o crédito da empresa.

Em outras palavras, o empresário precisa saber que, qualquer que seja sua opção, não há milagres: sua empresa, e provavelmente ele próprio, serão inscritos no SERASA, se o empresário deu garantias de bens imóveis da pessoa física o banco irá executá-las imediatamente e seu crédito, em ambos os casos, será fortemente comprometido.

Quais as vantagens da recuperação judicial frente à revisional acompanhada de moratória contra os bancos?

Uma vantagem não escrita da RJ é de cunho político/jurídico, porque na RJ o empresário estará submetido a uma lei que busca proporcionar condições para a recuperação econômica e financeira de empresas em crise e seu pedido de moratória encontrará ambiente menos hostil à inadimplência.

Na opção pela “revisional”, seguida da suspensão de pagamento dos bancos, a empresa estará na condição de um mero devedor inadimplente, sujeita ao processo comum de execução de dívidas, cujo único objetivo é encontrar meios de pagar o credor prejudicado pelo inadimplemento.

Uma vantagem notável na RJ é o período de 180 dias em que todas as execuções contra a empresa devem ser suspensas e nenhum bem dado em garantia lhe pode ser subtraído. Embora a lei diga que este prazo é improrrogável, a jurisprudência admite estendê-lo com relação a bens essenciais para a continuidade das operações.

Na RJ, todo o passivo da empresa (salvo as exclusões legais), vencido ou a vencer, constará de um plano que a empresa submeterá ao escrutínio dos credores, divididos em (i) trabalhista, (ii) quirografários, (iii) credores com garantia real e (iv) credores constituídos sob a forma de microempresa.

Como se vê, a RJ é uma ferramenta bastante abrangente. É uma medida de forte impacto comercial, econômico, financeiro e pessoal, e por isso sua escolha costuma exigir uma maior reflexão do empresário.

Disso resulta que os empresários, muitas vezes, optam pela revisional porque o mero inadimplemento das dívidas com bancos gera menos stress pessoal e porque sua repercussão costuma restringir-se à área financeira da empresa e aos bens pessoais dos sócios.

É preciso considerar, porém, que ao longo dos anos o resultado financeiro das ações revisionais contra os bancos vem se reduzindo (embora não seja de modo algum desprezível) como efeito de uma série de alterações legais e jurisprudenciais.

Dentre as mais importantes alterações legais, podemos citar a revogação do preceito constitucional que limitava os juros a 12% ao ano e a criação da cédula de crédito bancário, que autoriza os bancos a capitalizar juros e viabiliza a ação de execução de operações antes tidas como ilíquidas.

Do ponto de vista jurisprudencial, o Superior Tribunal de Justiça firmou jurisprudência que ajudou muito aos bancos, como a que impediu a aplicação de multa diária pela omissão de contratos e extratos e a que determinou a aplicação da taxa média do mercado nas operações sem a estipulação escrita da taxa de juros.

Na escolha pela revisional, o empresário deve estar ciente de que estará sujeito à imediata ação de execução pelo banco, o que sujeitará sua empresa à penhora “on line”, penhora de créditos, penhora de faturamento, enfim, toda uma gama de instrumentos que a lei põe à disposição do credor.

Além disso, enquanto o banco terá à sua disposição uma ação (execução), expedita e aparelhada com medidas muitos fortes, a ação revisional da empresa terá uma marcha muito lenta, em que a empresa tentará convencer o judiciário de que possui um crédito, decorrente de uma suposta cobrança superior à devida.

Em termos comparativos, enquanto a empresa estará buscando na revisional que o Judiciário lhe “reconheça um crédito”, o banco terá em mãos uma ação judicial que pressupõe um “crédito já reconhecido”, comparável à sentença transitada em julgado para esse fim.

Na RJ, todas as dívidas da empresa (exceto as exceções legais) constarão do “plano de recuperação” no qual a empresa justificará as razões de sua crise e proporá deságio, carência e novo prazo de pagamento de seu passivo, e/ou outras alternativas mais sofisticadas para pagamento dos credores.

E os fornecedores? Uma das principais preocupações dos empresários na RJ é se seus fornecedores continuarão fornecendo à empresa. Evidentemente, um plano com deságio muito agressivo, carência muito longa ou prazo de pagamento muito grande pode afastar os credores da empresa em crise.

Nestes casos, porém, é possível dar tratamento privilegiado aos fornecedores estratégicos. A jurisprudência admite esse tratamento especial, como, por ex., deságio menor ou redução de prazos de pagamento, por meio da criação de subclasses dentro do plano de recuperação para tratamento especial aos fornecedores.

Longe de pretender esgotar o tema de recuperação judicial, ou de temas relacionados à ação revisional de contrato bancário, o artigo visa a, apenas, servir como fonte inicial de informações para empresários que sofrem com a crise atual e que estão em dúvida sobre qual o melhor caminho para começar a superá-la.

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