Understanding the Ministers of the Third Class of Superior Court of Justice (STJ), fiduciary warranty credits shall not suffer the effects of judicial recovery, irrespective of the good given as a guarantee to the assurance of the recovery of someone else. In this way, the class was dismissed by the appeal of a financial institution and reformed decision of the Court of Justice of São Paulo (TJSP), which had classified credit as subject to judicial recovery because the property placed As a guarantee does not originally belong to the company.

For the Minister Rapporteur for the Appeal, Marco Aurélio Bellizze, in classifying the credit as a quirography (ie no privilege before the recovery) and not to apply paragraph 3 of article 49 of Law 11.101 / 05, TJSP has created a limitation not provided by the legislator in the Law of Recovery and Bankruptcy. According to the Minister, legislation provides for protection for certain types of credit and does not distinction on property ownership given as a guarantee.

"With this understanding, STJ removes the possibility of discussion in the process of judicial recovery on possible differentiation from the origin of the well-alienated fiduciary. In this way, there is no distinction between the good that already belonged to the debtor at the time of pactation and what was acquired with the resources from the fiduciary disposal contract and both included in the exceptions provided for in paragraph 3 of article 49 of Law 11.101 / 2005 ", comments thiago scartazzini city, member of the civil area of ​​carpena associated lawyers.