Heloísa Nogueira Santos and Nathália Albuquerque Lacorte Borelli
INTRODUCTION
In brief, this article discusses the limits of the evidentiary phase within the procedural incident of credit challenge. Furthermore, it addresses whether this procedural incident is the appropriate forum for issues that might otherwise be handled in specific proceedings—such as revision lawsuits, actions to stay a protest, and other specialized procedures.
The article examines the nature of the incident and the stance taken by the Specialized Corporate Law Chambers of the São Paulo Court of Justice, as well as by the Courts Specialized in Judicial Reorganization and Bankruptcy in the judicial district of São Paulo (SP).
METHOD
Two methods were used to prepare this article. The first—which served as the basis for raising the discussion—was a quantitative analysis conducted exclusively on the appellate case law of the São Paulo State Court of Justice. At the trial court level, the search was performed using the database of judgments exclusively from the specialized courts in the state capital; thus, it did not include judgments from other judicial districts or interlocutory decisions.
At both the trial and appellate levels, the terms "credit challenge" (*impugnação de crédito*) and "production of evidence" (*produção de provas*) were entered into the search fields to obtain the data used to formulate the propositions serving as the premises for the discussion.
Subsequently, through a literature review and the application of an empirical method—framing the problem and utilizing insights derived from the positions held by the Court and Specialized Courts—the authors formulated the conclusions presented here.
OBJECTIVE
This article aims to demonstrate whether extensive evidentiary proceedings are appropriate within the procedural incident of a claim challenge and, if so, what the limits of such proceedings would be.
Note that the intention here is to discuss the limits of the cognitive scope within the procedural incident of a claim challenge.
The study focused on the Specialized Corporate Law Chamber of the São Paulo Court of Justice, as well as the Specialized Courts of the São Paulo judicial district.
NATURE OF THE PROCEDURAL INCIDENT OF A CLAIM CHALLENGE
It is not the objective of this article to provide an exhaustive analysis of the nature of the procedural incident of a claim challenge; however, it is necessary to define its nature to better understand the text's focus—specifically, the issue of "what are the evidentiary limits in a claim challenge."
That said, proceeding from the premise that the procedural incident of a claim challenge is, first and foremost, adversarial in nature—and thus constitutes a *lawsuit* (or *action*)—as previously determined by the 1st Specialized Corporate Law Chamber in the proceedings for Interlocutory Appeal No. 2077954-93.2020.8.26.0000[1], as well as in the works of the esteemed... Regarding Daniel Carnio Costa and Alexandre Nasser de Melo[2], who treat the challenge to a claim as a JUDICIAL ACTION, the question arises: what type of action is it?
Based on this question, it is noted that the 1st Specialized Business Law Chamber, in the proceedings of Interlocutory Appeal No. 2031655-58.2020.8.26.0000[3], maintained that the claim verification procedure is clearly declaratory in nature and is not intended to restructure contractual relationships; it is incompatible with claims seeking the revision of clauses or the recognition of abusive terms—in other words, a Challenge to a Claim has the effect of DECLARING THE CLAIM, but not constituting it.
Thus, the objective when filing a challenge to a claim is, in fact, to obtain a declaratory ruling that serves as a basis for the judicial reorganization proceedings, with all matters being assessed on an incidental basis and remaining subordinate to the main proceeding.
The Honorable Justice Ricardo Cueva of the Superior Court of Justice (STJ) noted during a ruling that “despite the label ‘incident,’ a challenge to a claim is not a mere procedural incident within judicial reorganization, but rather an incidental action, declaratory in nature, which follows the procedure set forth in Articles 13 and 15 of the LREF [Judicial Reorganization and Bankruptcy Law]. It is noted that there are provisions for the production of evidence and, if necessary, the holding of an evidentiary hearing (Art. 15, IV, of the LREF)—procedures typical of ordinary litigation proceedings.”
Following this line of reasoning, we reach the first conclusion: given that the procedural incident for challenging a claim (*Incidente Processual de Impugnação de Crédito*) is in the nature of a lawsuit—rather than a mere incidental matter—the presentation of evidence is permissible within said incident.
REGARDING THE PRESENTATION OF EVIDENCE
The Position of the Honorable Court of Justice of São Paulo
It is well established in settled case law that the procedural incident for challenging a claim is in the nature of a declaratory action; thus, the production of evidence within the incident is permissible.
However, the 2nd Specialized Chamber for Corporate Law holds conflicting views regarding the scope of evidence production in such procedural incidents.
In most rulings[4], the Chamber in question holds that the procedure for challenging a claim (*Impugnação de Crédito*) involves an exhaustive review, allowing for a full adversarial process and extensive evidentiary proceedings; thus, filing a separate, independent lawsuit is unnecessary. In effect, the procedural incident for challenging a claim replaces an ordinary lawsuit, creating a scenario where—figuratively speaking—"anything goes": abusive contract clauses can be reviewed, and a wide range of possibilities for producing evidence is opened up.
Conversely, the 1st Specialized Chamber for Corporate Law holds that the procedural incident for challenging a claim[5] is not the proper forum for contract reviews, actions to rescind or annul judgments, or extensive evidentiary proceedings; such matters should be addressed in a separate, dedicated lawsuit.
Having outlined the positions held by the two Specialized Chambers for Corporate Law, we will now analyze how the Specialized Courts in the city of São Paulo handle this issue.
The Position of the Specialized Courts in the Capital of São Paulo State
As previously noted, the position of the São Paulo Court of Justice remains divided regarding the admissibility of extensive evidentiary proceedings within the scope of a claim challenge incident; however, an analysis of the São Paulo Court of Justice’s judgment database reveals that the Specialized Courts in the capital unanimously hold that the challenge incident does indeed allow for extensive evidentiary proceedings when necessary.
Thus, we will proceed based on the premise that the specialized courts in the capital hold a consistent view regarding the admissibility of producing evidence during challenge proceedings.
However, as shown in the table below, although judges in courts specializing in judicial reorganization and bankruptcy agree on this possibility, the research reveals that allowing the production of evidence requiring more extensive debate—such as oral or testimonial evidence—is the exception rather than the rule.
This is because, as established in the research methodology, a keyword search of the judgment database resulted in the analysis of 57 (fifty-seven) rulings. Of that total, a request for the production of additional evidence was granted in only 4 (four) cases.
| JUDGE | YES | NO |
| Marcelo Sacramone | 1 | 29 |
| Paulo Furtado | 2 | 2 |
| Paula Da Rocha Silva Formoso | 0 | 1 |
| Adriana Bertier Benedito | 0 | 3 |
| Tiago Henriques Papaterra Limongi | 0 | 1 |
| Caio Marcelo Mendes de Oliveira | 1 | 9 |
| Did not address the topic, or the expert analysis had already been conducted in another proceeding | 0 | 8 |
Thus, based on the table above, it can be concluded that the production of more robust and sophisticated evidence in a claim challenge proceeding occurs only in exceptional cases; this demonstrates that most disputes can be resolved solely through documentary evidence, rendering the ordering of additional evidence unnecessary.
We can therefore state that most cases are of lower complexity—or that the matter at issue can be resolved using the attached documents—which benefits everyone, as it avoids increasing financial costs or the time required to process the proceeding; there is virtually no controversy regarding the benefits of this expedited procedure, which is the norm.
That said, we return to the subject of this article: the limits of the proceeding for challenging and validating claims.
Limits on the production of evidence in claim challenges and validations
Analysis of the aforementioned decisions demonstrates that, as a general rule, the need to produce evidence is limited to the preparation of an accounting expert report, given that the dispute involves multiple or successive contracts between the parties, requiring expert knowledge to perform highly complex calculations.
In this regard, the core of the dispute is typically a matter of law rather than fact, which is why the production of extensive additional evidence is often unnecessary. That said, it is worth recalling that the ultimate objective of a claim objection proceeding is the formal recognition of a claim that is certain, liquid, and correctly classified, pursuant to Articles 6 and 9 of Law No. 11.101/05. Consequently, it is logically presupposed—in the vast majority of cases—that there is a prior lawsuit resulting in a judgment, or an instrument establishing a claim that is certain, liquid, and enforceable (under Article 784 of the Code of Civil Procedure), or an extrajudicial enforcement instrument.
Claims—as explained by Jose Xavier Carvalho de Mendonça (*Tratado de Direito Comercial Brasileiro*, 4th ed., updated by Achiles Bevilaqua and Roberto Carvalho de Mendonça, Freitas Bastos, Rio de Janeiro, 1947, Vol. VIII, p. 98)—simply undergo a "verification process." This bears no resemblance to the proceedings in individual enforcement actions—specifically debtor's objections—where a debtor may raise an unlimited range of defenses.
To clarify our understanding, we will use a hypothetical case. Suppose a creditor initiates enforcement proceedings against a company undergoing judicial reorganization, and the court—already aware of the reorganization petition—orders the automatic suspension of the enforcement action, directing the creditor to file a formal claim for the debt within the reorganization proceedings.
The creditor then files a claim against the company in reorganization, based on an instrument that is certain, liquid, and due—such as protested trade invoices (*duplicatas*) bearing an apparent acceptance. So far, so good, right?
However, upon contesting the claim, the company states that it never actually contracted for those services and that the service agreement submitted contains a forged signature from a person lacking the authority to sign. To resolve the matter, the company in reorganization requests—within the scope of the claim dispute proceeding—the hearing of witnesses, a handwriting analysis, and even a counterclaim for damages caused.
The question arises: does the proceeding for challenging and filing a credit claim allow for such a discussion? Furthermore, considering the nature of this proceeding as a form of legal action, is it possible to apply the legal concept of a counterclaim (*reconvenção*)?
Based on the scenario above, it is safe to say there is no settled consensus in case law or legal doctrine; rather, there are schools of thought and legal arguments leaning toward "yes" and, with equal weight, toward "no." Therefore, to attempt to resolve this hypothetical situation, the best approach is to thoroughly analyze and practically apply the knowledge we have organized thus far, right?
Well then: those who maintain that the case does not admit such a discussion do so because Article 9 of the LRE clearly establishes the scope of debate within the incidental proceeding; it specifies the requirements for filing the incidental action and categorically states that the matter must be supported by documents proving the prior establishment of the claim.
In other words, if the dispute requires questioning the constitutive elements of the legal transaction itself (capable parties, lawful object, and appropriate form) pursuant to Article 104 of the Civil Code, it is evident that a "problem" arises which goes beyond the discussion of the claim's value, classification, and origin—matters governed by the aforementioned Article 9.
Nevertheless, an analysis of Article 13 of Law 11.101/05 reveals that the legislator expressly provided for the possibility of extending the scope of the incidental proceeding. Thus, proponents of the view that such an extension is permissible argue that the incidental proceeding encompasses the entire discussion, noting that the aforementioned article identifies the "origin" of the claim as a potential subject of debate within the challenge.
They further assert that the legislator made no such distinction regarding limits, maintaining that nothing would prevent the reorganization judge from ordering a hearing and a handwriting analysis in the hypothetical case under consideration.
Is such an interpretation mistaken? Not at all; however, in the authors' opinion, the analysis is incomplete. The "origin" mentioned in the article refers merely to the underlying constitutive documents; consequently, this interpretation views the text of Law 11.101/05 in isolation from the rest of the legal system, creating a paradox that may not be immediately apparent.
This is because, while consolidating the entire discussion within the incidental proceedings might be justified by the need to respect the principle of the universality of the reorganization court's jurisdiction and the procedural efficiency sought in collective insolvency proceedings, doing so would completely undermine the jurisdiction of the otherwise competent courts and violate the principles of objective good faith and *pacta sunt servanda*, while simultaneously overloading the reorganization court with additional functions.
What might initially appear to comply with the terms of the Law actually does not; by granting the reorganization court the power to deliberate on the formation of a legal transaction, we extend the scope of its jurisdiction beyond the limits established by statute and case law. These clearly state that the court's authority is limited to acts of asset seizure—actions that directly impact the assets of the company undergoing judicial reorganization.
Similarly, shifting the entire debate of a standard lawsuit into a procedural incident creates complications regarding civil procedure. A standard lawsuit requires the payment of court fees and entails a potential order to pay attorney's fees pursuant to Article 85 of the Code of Civil Procedure—a provision that does not expressly authorize such fees for proceedings involving the challenge or validation of claims.
It should also be noted that the question of whether attorney's fees may be awarded in proceedings to challenge or validate claims remains controversial, precisely due to the debate over procedural boundaries. If there are no clear guidelines distinguishing the incident from a standard lawsuit, and if lawyers and judges devote equal time and effort to both, then why shouldn't attorney's fees be awarded in the incident as well?
Treating a procedural incident as an ordinary lawsuit—and attempting to incorporate into it a debate that, under civil procedure rules, belongs in a standard lawsuit rather than an incident—gives rise to several problems. These include issues regarding attorney's fees, an increased risk of conflicting rulings, and an undue burden on the reorganization court.
This paradox—arising from the well-intentioned aim to consolidate the dispute over the underlying claim within the enforcement proceeding itself, or to save on procedural and financial costs—yields the exact opposite result. Furthermore, the legal issues raised in the incidental proceeding (such as the revision of contractual clauses or—in our hypothetical example—arguments regarding the non-existence of the transaction itself, the need to stay a protest, or the reliance on witness testimony) often end up being relitigated in a separate lawsuit, given that both the judgment creditor and the judgment debtor typically continue to assert and defend their rights through "traditional" channels.
In other words: the question posed here for reflection is whether there is any real benefit in pushing the boundaries of the scope of discussion within a credit challenge and qualification proceeding to the absolute limit. Based on the analysis contrasting the arguments "for" and "against," the authors believe it is safe to say there is not.
As previously stated, the proceeding should focus on declaring a credit that has already been duly established. However, if expert analysis—strictly documentary in nature (such as the review of reports)—is required to determine the actual amount owed (e.g., due to the inapplicability of a specific rate or the need to deduct an amount also proven by the parties' documents), then an extended evidentiary phase would be both welcome and necessary to ascertain the true value of the credit.
Conversely, if the "truth" regarding the establishment of the credit itself is unknown and would require an extensive evidentiary phase—going beyond the mere valuation and classification of the credit to delve into its constitutive elements—then, as previously analyzed, the most appropriate course of action would be to file a separate lawsuit.
In the hypothetical case serving as the connecting thread for our discussion on theory versus practice, we conclude that one could file an action to stay a protest or, alternatively, present a defense via *Embargos à Execução* (Objections to Execution). This latter mechanism fully accommodates such a discussion under Article 917, VI of the Code of Civil Procedure, thereby allowing one to request the dismissal or suspension of the credit qualification proceeding; indeed, at that procedural stage, it is inappropriate to discuss credit qualification when there is not yet any certainty regarding the validity of the underlying legal transaction.
Does this mean, then, that it is impossible to address such a discussion within the credit challenge and qualification proceeding? No, not at all. However, doing so would revive all the negative aspects and risks outlined above—particularly the risk of overburdening the court overseeing the reorganization with matters falling outside the scope defined by Law No. 11.101/05.
CONCLUSION
Thus, by using a hypothetical case to break down the figures regarding current conflicts in the practical application of credit challenge and verification proceedings within judicial reorganization, this article sheds light on the limits of extensive evidentiary proceedings in such matters. It addresses how to proceed without violating the principle of *res judicata* or risking conflicting decisions, and—above all—how to avoid delaying the judicial reorganization process itself.
The article demonstrates that, even if the production of expert evidence is authorized, it must be subject to caveats; the aim is to ensure the use of the appropriate procedure and correct legal channel for the best resolution of the case, thereby preventing an undue burden on the courts handling reorganization proceedings.
Authors:
Heloísa Nogueira Santos. Lawyer (graduate of the Pontifical Catholic University of Campinas – PUCCAMP) specializing in judicial reorganization; currently practicing at the law firm Otto Gübel Sociedade de Advogados. Currently pursuing a Master of Business degree in Data Science and Analytics at the University of São Paulo. E-mail: [email protected].
Nathália Albuquerque Lacorte Borelli. Lawyer, a graduate of the Pontifical Catholic University of Campinas (PUCCAMP). Currently pursuing studies in Business Management and Strategy at the State University of Campinas (UNICAMP). Member of the Bankruptcy and Judicial Reorganization Studies Commission of the OAB/Campinas (Brazilian Bar Association – Campinas Chapter). Member of the Center for Women in Corporate Restructuring (CMR) – [email protected]
[1] – TJSP (São Paulo Court of Justice); Interlocutory Appeal No. 2077954-93.2020.8.26.0000; Rapporteur: Pereira Calças; Adjudicating Body: 1st Specialized Chamber of Corporate Law; Limeira Courthouse – 3rd Civil Court; Judgment Date: August 3, 2020; Registration Date: August 3, 2020.
[2] – Commentary on the Law on Corporate Reorganization and Bankruptcy: Law 11.101 of February 9, 2005 / Daniel Carnio Costa, Alexandre Correa Nassar de Melo – Curitiba: Juruá, 2021.
[3] – TJSP; Interlocutory Appeal 2031655-58.2020.8.26.0000; Rapporteur: Fortes Barbosa; Adjudicating Body: 1st Specialized Chamber of Corporate Law; São João da Boa Vista Courthouse – 2nd Civil Court; Date of Judgment: July 30, 2020; Registration Date: July 30, 2020
[4] (TJSP; Interlocutory Appeal 2204781-52.2020.8.26.0000; Rapporteur: Grava Brazil; Adjudicating Body: 2nd Specialized Chamber of Business Law; Paulínia Courthouse – 2nd Court; Judgment Date: February 16, 2021; Registration Date: February 16, 2021
TJSP; Interlocutory Appeal 2166169-45.2020.8.26.0000; Rapporteur: Alexandre Lazzarini; Adjudicating Body: 1st Specialized Chamber of Business Law; Mogi Guaçu Courthouse – 3rd Civil Court; Judgment Date: February 1, 2021; Registration Date: February 2, 2021
TJSP; Interlocutory Appeal 2053137-62.2020.8.26.0000; Rapporteur: Araldo Telles; Adjudicating Body: 2nd Specialized Chamber of Business Law; Cerqueira César Courthouse – 1st Court; Judgment Date: November 13, 2020; Registration Date: November 13, 2020
[5] – TJSP; Interlocutory Appeal 2053137-62.2020.8.26.0000; Rapporteur: Araldo Telles; Adjudicating Body: 2nd Specialized Chamber of Business Law; Courthouse of Cerqueira César – 1st Court; Judgment Date: 13/11/2020; Registration Date: 13/11/2020
TJSP; Interlocutory Appeal 2221767-81.2020.8.26.0000; Rapporteur: Fortes Barbosa; Adjudicating Body: 1st Specialized Chamber for Business Law; Santo André Courthouse – 9th Civil Court; Judgment Date: 11/01/2021; Registration Date: 11/01/2021
(TJSP; Interlocutory Appeal 2031655-58.2020.8.26.0000; Rapporteur: Fortes Barbosa; Adjudicating Body: 1st Specialized Chamber for Business Law; São João da Boa Vista Courthouse – 2nd Civil Court; Judgment Date: 30/07/2020; Registration Date: 30/07/2020
(TJSP; Interlocutory Appeal 2008329-69.2020.8.26.0000; Rapporteur: Ricardo Negrão; Adjudicating Body: 2nd Specialized Chamber for Business Law; São Bernardo do Campo Courthouse – 1st Civil Court; Judgment Date: 01/06/2020; Registration Date: 01/06/2020
TJSP; Interlocutory Appeal 2044438-82.2020.8.26.0000; Rapporteur: Marino Neto; Adjudicating Body: 11th Chamber of Private Law; Ibitinga Courthouse – 1st Civil Court; Date of Judgment: May 14, 2020; Date of Registration: May 14, 2020
TJSP; Interlocutory Appeal 2251939-40.2019.8.26.0000; Rapporteur: Fortes Barbosa; Adjudicating Body: 1st Specialized Chamber of Business Law; São João da Boa Vista Courthouse – 2nd Civil Court; Date of Judgment: March 4, 2020; Date of Registration: March 4, 2020
TJSP; Interlocutory Appeal 2132328-93.2019.8.26.0000; Rapporteur: Cesar Ciampolini; Adjudicating Body: 1st Specialized Chamber of Business Law; Batatais Courthouse – 1st Civil Court; Date of Judgment: October 9, 2019; Date of Registration: October 10, 2019
