Lawsuits seek to reach hidden assets of partners of indebted companies
07/08/2022
The pandemic has generated a record volume of lawsuits against indebted companies for concealment of assets. A survey by the Martinelli Advogados law firm shows that, in the Court of Justice of São Paulo (TJSP), 6,731 trials were handed down last year dealing with redirection of collections to partners or third parties, after allegation of fraud. The volume represents a 33% growth compared to 2019 and is double that recorded in the previous year.
This situation, according to experts, occurs mainly in times of crisis. With the increase in defaults, companies in difficulty decide to take irregular measures in an attempt to shield their assets from possible collections. Creditors are then forced to scrutinize the lives of companies and their partners to try and locate assets.
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Columbano Feijó — Foto: Divulgação/Omar Paixão
Since the economic crisis of 2008, companies with debts began to adopt more frequently practices to protect their assets, according to lawyer Columbano Feijó, a partner at Falcon, Gail, Feijó e Sluiuzas Advogados. “The pandemic caused this practice to increase again, since some activities were paralyzed, defaults increased exponentially, and many companies in difficulty took irregular measures,” he said.
Today, more than 6.1 million companies are delinquent, according to a survey by Serasa Experian, in May. Of the total, 52.7% are in the service sector. Next come commerce (38.1%), industry (7.9%) and the primary sector (0.9%).
The largest portion of businesses in the red is in São Paulo and are small in size. The delinquency among entrepreneurs, says the chief economist of Serasa Experian, Luiz Rabi, is still likely to continue as long as the economy remains unstable.
According to economist and lawyer Alessandro Azzoni, many companies have closed their doors or are in debt and cannot honor their liabilities. Mainly, he adds, bars and restaurants, which suffered a lot with the sanitary restrictions. “Nobody expected this situation to last for more than two years. And many that were already in debt became insolvent,” he said.
Those companies have now been the target of lawsuits. And when creditors are unable to locate the assets of these debtors, they resort to a provision that allows them to reach third-party assets and hold a partner or administrator responsible for the debt, in case of fraud.
These are cases in which debtors try to hide their assets through irregular asset shielding, many times using straw men. However, getting a favorable decision, in these cases, is not simple, according to Mr. Azzoni. “It’s necessary to prove that there was fraud, that during the execution the company sold its assets or transferred them to third parties in order not to pay its debt,” he said.
According to lawyer Luís Cascaldi, with Martinelli Advogados, who coordinated the research on the Court of Justice site, the higher number of cases reflects the economic crisis generated by the pandemic. These numbers may still be under-reported, because many are kept under the secrecy of justice, so that other creditors do not know about the search and locate the assets first.
To assist in the search for assets, he says that the law firm has used partnerships and adopted technology tools to make dossiers to creditors, of what could be asked for in these cases and if there are chances of recovering those amounts. In these cases, social media have been important, according to Mr. Cascaldi. “In one of the cases we found out that the debtor owned a horse farm, which was in the name of a third party, through a posted photo,” he said.
The possibility of reaching third-party assets in case of fraud is foreseen in article 50 of the Civil Code. The way this procedure should be conducted by the judge is also provided for in articles 133 to 137 of the Code of Civil Procedure (CPC).
When it comes to large economic groups, the actions of concealment of assets become more sophisticated, according to Mr. Feijó, such as the creation of companies with the sole purpose of emptying and hiding assets. In one of the cases in which he acts for a large construction company, he tries to recover more than R$3 million owed by an engineering company for unpaid labor lawsuits, which the construction company had to pay because it was co-responsible.
In the lawsuit, the lawyer says that he has obtained evidence that the debtor acted as a provider of labor services for building construction and is part of a fraudulent group, which includes the creation of more than 20 companies, with the purpose of emptying and hiding assets. He has already obtained an injunction in the São Paulo State Court of Justice to seize the amounts in the companies’ bank accounts until there is a ruling in the arbitration court.
*By Adriana Aguiar — São Paulo
Source: Valor International