Billing Attachment: The Weapon of Creditors Brought by the New Procedural Law

Among the numerous jugglers that the companies were submitted to survive the country’s economic and political instability; entered into force in April this year, the new Civil Procedure Code, which silently brought a powerful weapon to creditors and debtors more challenge: living with billing attachment.

Already pacified in the Jurisprudence of the STJ, the attachment of the billing was enshrined in art. 866 of the new Law, with significant changes to give effect to the collection of credit, among which, we can highlight two: i) the definition of the percentage of the attachment of billing; which is conditioned to not prevent the exercise of business activity; and ii) the administrator of the court appears; who is a third party appointed by the Judge (intervenor in the company), with the responsibility of collecting, supervising and accounting through monthly balance sheets.

The first challenge is to set the billing percentage. What amount can the Judge set in a way that does not compromise or prevent the exercise of business activity? The high point of the discussion lies here. In advance, we know that the judiciary is not prepared for in-depth discussions about corporate finance; even simple concepts that separate the definition of gross and net revenue are commonly confused.

The second is the presence of the judicial administrator appointed by the Judge, whose charge may transcend the role of simple collector. The administrator, usually accompanied by an accountant, will also exercise a supervisory role, as he will have free access to all economic-accounting information, and may even denounce acts that aim to defraud the receipt. At this point, a serious problem arises for debtors with irregular accounting.

It is important to emphasize that after the injunction that determines the attachment of the billing, the company has 15 days to appeal and demonstrate the feasibility or not of the percentage, usually set at 5%. In this regard, the debtor companies should take precautions and prepare a study/report in advance.

In summary, we have with the advent of the new code, a stormy reality for the debtors and a beautiful weapon for the creditors; an instrument more effective than simple online attachment.

Fabio Garcia

Tax and Corporate Law

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