Post by account_disabled on Mar 11, 2024 5:40:45 GMT
The transfer of the debtor's assets to prevent future execution can be undone by the Court even if it occurred before the debt was created. It is enough to prove the intention to commit fraud against the creditor. This was the understanding of the rd Panel of the Superior Court of Justice, which denied a Special Appeal filed by a group of debtors from São Paulo. With the decision, the STJ allowed the transfer of its assets to third parties to be declared ineffective.
One of the authors of the maneuver was a partner in a car dealership who, according to the process, committed several irregularities in financial contracts, to the detriment of the financing bank. Once the fraud was discovered, the company agreed to sign a debt confession document and gave the bank promissory notes that were not paid.
According to the process, since the irregularities began to be Austria Phone Numbers List investigated, the family of the company's partner tried to get rid of the assets that could be seized in future execution. First, the businessman and his close family members – committed to guaranteeing the promissory notes – created two companies and transferred their properties to them. They then transferred their shares to off-shore companies located in a tax haven.
Minister Nancy Andrighi, rapporteur of the case at the STJ, noted that, in principle, a transfer of assets can only be considered fraud against the creditor and, therefore, undone by the Court, when it occurs after the debt has been created. In some cases, however, according to her, the literal interpretation of the law is not enough to prevent fraud.
“The cunning intellect attempts – creative as it is – to innovate in the illegal practices and maneuvers used with the aim of escaping payment to the creditor. One of these procedures is the early disposal of assets, already anticipating, in the near future, the emergence of debts, with a view to removing the requirement of prior credit”, stated the minister in her vote.
In view of the above, the rd Panel, unanimously, agreed to relativize the requirement of prior credit whenever the existence of predetermined fraud to harm future creditors is demonstrated. With information from the STJ Press Office.
One of the authors of the maneuver was a partner in a car dealership who, according to the process, committed several irregularities in financial contracts, to the detriment of the financing bank. Once the fraud was discovered, the company agreed to sign a debt confession document and gave the bank promissory notes that were not paid.
According to the process, since the irregularities began to be Austria Phone Numbers List investigated, the family of the company's partner tried to get rid of the assets that could be seized in future execution. First, the businessman and his close family members – committed to guaranteeing the promissory notes – created two companies and transferred their properties to them. They then transferred their shares to off-shore companies located in a tax haven.
Minister Nancy Andrighi, rapporteur of the case at the STJ, noted that, in principle, a transfer of assets can only be considered fraud against the creditor and, therefore, undone by the Court, when it occurs after the debt has been created. In some cases, however, according to her, the literal interpretation of the law is not enough to prevent fraud.
“The cunning intellect attempts – creative as it is – to innovate in the illegal practices and maneuvers used with the aim of escaping payment to the creditor. One of these procedures is the early disposal of assets, already anticipating, in the near future, the emergence of debts, with a view to removing the requirement of prior credit”, stated the minister in her vote.
In view of the above, the rd Panel, unanimously, agreed to relativize the requirement of prior credit whenever the existence of predetermined fraud to harm future creditors is demonstrated. With information from the STJ Press Office.