At the time the process of judicial recovery is deferred, creditors, in general, although exceptions are suspended, are suspended for the actions filed in disfavor of recovery, and subsequently to the recovery plan optionally approved and approved. The exception referred to herein is described in Article 49, § 3, ensuring the lender holder of the position of fiduciary owner not submitting to the effects of judicial recovery. For a long time, the homeland case-law recognized, as a requirement for validity and constitution, the registration of the contracts guaranteed by fiduciary alienation of mobile property.
Understanding until then reiterated by much of the courts based on Article 1,361, paragraph 1, of the Civil Code, in the sense that fiduciary property is registration of the contract in the registration of securities and documents of the debtor's domicile. In this context, any credit guaranteed by fiduciary disposal would be judicial recovery when the contractual instrument was not duly registered.
In the direction diametrically contrary to the understanding of the courts of justice, the doctrine of Orlando Gomes has already positioned himself, for some time, in the sense that the registration requirement is not a validity requirement. This conflict of understandings between the positioning of state cuts and doctrine, however, finally reached the appreciation of the Superior Court of Justice. The STJ, by judging special resources 1,412,529 / SP and 1,559,457 / MT, positioned positioning in the sense that the constitution of the fiduciary warranty, arising from fiduciary assignment of rights on mobile things and credit bonds, From the hiring itself, irrespective of the registration, being the credits from these securities excluded from the effects of judicial recovery.
full article Posted in: < span> http://www.conjur.com.br/2016-ago-15/Credo-alienacao-fiducaria-nao-submete-recuperacao
