CNJ approves new rules for the sale of court orders and creates a national center to try to track operations

The National Council of Justice (CNJ) unanimously approved this Tuesday (10), a resolution with rules for the sale of court orders, which provides for the creation of a national center to track operations.

The rapporteur, Andréa Cunha Esmeraldo, stated that the matter increases transparency and strengthens the governance of the judicial policy on court orders.

The purchase and sale of court orders is one of the main points of the investigation targeting fraud at Banco Master.

“Ultimately, it seeks to increase transparency and provide greater legal certainty, exceptions of credits to payment acts and the respective low bases for the benefit of administrative efficiency and the adequacy of the adequate management of these operations within the scope of the Judiciary”, he stated.

Among other points, the approved resolution establishes that the transfer of a court order to take effect will depend on the joint fulfillment of a series of requirements, such as:

requires a public deed of assignment of the credit;

electronic registration with a registering entity;

communication to the National Central for the Assignment of Precatório Credits, created by the text;

approval by the competent court.

In practice, the requirements aim to create a chain of tracking the court order. Without complying with the requirements, it will not be possible to change the ownership of the precatório, qualify the buyer to receive the resources, issue a certificate of the net value in his name or make the payment.

"I have no doubt about the importance of the discipline of the assignment of precatório credits, the burdens and guarantees of the incidence of these credits and the National Central for the Assignment of Precatório Credits. We are providing legal security, traceability and transparency with this", stated the president of the CNJ and the Federal Supreme Court (STF), Edson Fachin.

According to the text, the National Central for the Assignment of Precatório Credits will be responsible for consolidating acts relating to the sale of precatório, such as negotiation, deed, approval, guarantees, payment and other transactions involving credit.

The bank acquired precatório credits from companies – mainly from the sugar and alcohol sector – at a discount, that is, for a lower value than the securities could be worth after the end of a judicial process.

Subsequently, after financial fraud or mere unrealistic declaration of values, the bank recorded these "precatório receivable" as part of its assets. In practice, the papers would be worth less than what was recorded in the accounts.

By registering court orders and doubtful credits for values ​​higher than the real ones, Banco Master forged an appearance of wealth, appearing much more solid than reality.

This was used to justify capital contributions and meet formal financial health requirements imposed by supervisory bodies, especially the Central Bank.

With the supposed solidity attested by these assets, the institution managed to attract investors, move billions in funds and negotiate large-scale operations, accumulating billion-dollar liabilities hidden by low-quality guarantees.

"The proposal presented represents a significant advance in the discipline of the matter. It is an important milestone for Brazilian society. It proves to be timely and institutionally relevant in establishing national guidelines for the granting of precatorio credit, as well as for liens and guarantees, related control mechanisms, including through the establishment of the National Central for the Assignment of Credits and Precatório", highlighted the rapporteur.

To receive the precatório sooner, creditors end up selling the right to receive it for a lower value to institutions.

According to the text, one of the prerequisites for the transfer of the precatório must be included in the deed, the discount, in absolute value and in percentage.

According to the text, the deed must inform the updated value of the credit, the net amount available, the negotiated installment and the price paid.

Notary and registration costs, the intermediary's remuneration and the net amount that will remain with the seller must also be included.

The approved proposal also establishes that individuals who do not operate in the precatório market, when selling credits, must appear in person at the notary's office.