Preliminary finding in corporate judicial recovery processes

In judicial recovery, monitoring the admissibility of the procedure is essential and must be carried out at the beginning. The judge must ensure, for example, that the debtor is still in business.

To mitigate the risk of admitting recovery without the minimum requirements, the law provides for the possibility of the judge carrying out a “prior verification”.

The measure is not mandatory, and it is up to the judge to analyze its relevance in light of the elements of the case.

The purpose of the assessment is not to analyze the feasibility of recovery, but to verify that the company is in operation, what the main establishment is for the purposes of defining jurisdiction and that the descriptions made in the initial petition and in the accompanying documentation correspond to reality.

Therefore, at his discretion and whenever he deems it necessary, the judge may appoint a suitable and technically capable professional to verify the debtor’s actual operating conditions and check the documentation attached to the initial petition.

The assessment must be made without prior notice to creditors, without presenting questions and, occasionally, without the debtor’s knowledge, when the judge deems it necessary to avoid creating a scenario that is not consistent with reality.

The deadline for completing the assessment, with the presentation of the report, is five days. Once the report is presented, the professional responsible will be entitled to his/her remuneration, which is set according to the complexity of the work and is due by the applicant.

If it is found that the debtor’s main establishment is located in a place under the jurisdiction of another court, the judge will order the case to be forwarded to the competent court.

On the other hand, if the result of the finding concludes that the requirements for judicial recovery do not exist, such as the lack of business activity, the judge must dismiss the initial petition, terminating the case. If the debtor has fraudulent intent, the judge may notify the Public Prosecutor’s Office to investigate any crime or damage to the community.

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