The Sergipe State Court of Justice (TJ-SE) denied a hotel’s request to suspend an online attachment made to pay a debt incurred in 2011. Appellate Judge Cezário Siqueira Neto, in a single-judge decision, did not accept the argument of financial crisis due to the covid-19 pandemic.
The attachment requested by a company that supplies linens amounts to around BRL 77 thousand. The hotel challenged in court the fact that the freeze was made for an amount greater than the debt, of BRL 159 thousand. It also took the opportunity to request the lifting of the attachment due to the reduction in its activities caused by the coronavirus.
According to the case file (No. 202000708940), the hotel has no revenue at all, and keeping its completely halted operation costs more than BRL 1 million. It adds that, at this time of crisis, its efforts are focused on maintaining its 230 jobs.
In its request, it claims that, even after adopting all the relief measures offered by the federal government through Provisional Measure (MP) No. 927, its payroll would still cost BRL 225 thousand, which would show that the frozen amount is essential to pay it.
In the decision, Appellate Judge Cezário Siqueira Neto acknowledges that, despite the company’s financial difficulties in light of the global pandemic, priority must be given to the creditor, which “certainly has an employee payroll, monthly expenses to maintain its business, tax payments and the whole range of other expenses inherent to companies”.
The judge stresses that the justification of currently going through a financial crisis due to the pandemic is not convincing, since “the appellant has had every opportunity since 2011 to settle its debt and has not done so”.
He adds that there is no legal provision making assets exempt from attachment due to a financial crisis. For the judge, the current situation requires change, reinventing concepts and rethinking conduct, not only for individuals but for legal entities as well.
According to the attorney advising the textile company, Philippe Ambrosio Castro e Silva, of Giamundo Neto Advogados, the case has dragged on for years. The courts, he says, had been trying various ways to settle the debt. The debt is old and has nothing to do with the pandemic. “The situation has been known for a long time. The company could not use this argument now to get out of its obligations”, he says.
For the attorney, the decision was very consistent because the judge was not swayed by the argument of the crisis resulting from the pandemic. “Proceedings in Brazil already take so long that the courts cannot resort to ad hoc reasoning so that, once again, the proceedings do not reach the expected end, which is payment to the creditor.”
The attorney advising the hotel in the case, Marcio Macedo Conrado, says he respects the decision but has already appealed. “Although this is an old debt, the fact is that the attachment came at this time of pandemic, when the hotel’s activities have been halted and it will have to honor its commitments such as salaries, taxes, etc.”. Conrado says the request does not mean the company does not want to pay the debt.
In the view of attorney Helder Moroni Câmara, of PMMF Advogados, the claim that attachment is impossible due to an extraordinary event such as covid-19 could only be valid if it put one party at a great advantage, to the detriment of the other, which would be at an enormous disadvantage.
For Câmara, both are in the same position and equally suffer the losses resulting from the crisis, especially given that the debt long predates the extraordinary event. He adds that it was not the extraordinary event that caused the default leading to the attachment. “The debt had existed for a long time and cannot be blamed on covid-19.”
Report originally published by Adriana Aguiar in the newspaper Valor Econômico (in Portuguese), on 04.24.2020.
