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23 de May de 2024
The issue of the concurrency of attorney’s fees in bankruptcy: concurrent or non-concurrent credit
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Paulo Guilherme de Mendonça Lopes and Alexandre Paranhos

In bankruptcy, attorney´s fees are a fundamental element of the process when establishing the correct compensation for those professionals representing the interests of the parties involved. This matter sometimes sparks intense debates in the legal field, particularly regarding the classification of these credits as concurrent or non-concurrent. In this regard, especially when constituted after the declaration of bankruptcy, the matter of the concurrent vs. non-concurrent nature of attorney´s fees had different perspectives over the years.

Attorney´s fees generated before the declaration of bankruptcy are generally considered non-concurrent, representing obligations that arose prior to the bankruptcy proceeding and, therefore, not subject to the payment order stipulated in the Bankruptcy Law. Consequently, they hold priority in setting the liabilities of the bankrupt estate.

On the other hand, attorney´s fees originating after the declaration of bankruptcy are typically classified as concurrent credits, arising from the attorney´s work during the bankruptcy estate process. Therefore, they follow the payment regime stipulated by law, along with other creditors.

However, judicial review of the matter varies depending on the context and specifics of each case. To determine whether the credit arising from attorney´s fees is concurrent or non-concurrent, various factors and circumstances must also be considered, especially its origin or cause and the timing of its occurrence and establishment.

There is consensus regarding the labor nature, by analogy, of credits related to attorney´s fees, whether they are contractual or borne by the defeated party, held by individuals or legal entities. However, due to their nature, this classification does not affect their status as concurrent or non-concurrent, they are just relevant when determining preference and restrictions in the payment of concurrent credits.

While it is important to consider the timing of the credit´s establishment, it is not crucial when it comes to determining its non-concurrent nature. Therefore, being a creditor of the bankrupt estate and not of the bankrupt per se does not define the non-concurrent nature of the credit.

In Recurring Theme No. 637 of Brazil´s Superior Court of Justice (“STJ”), the non-concurrency of services rendered to the bankrupt estate was addressed, stipulating that attorney´s fees arising from services provides to the bankrupt estate after the declaration of bankruptcy are considered non-concurrent credits, in accordance with Articles 84 and 149 of Law 11.101/2005. However, this understanding does not apply to the issue of the burden of defeat fees, established against the bankrupt estate, as these do not result from services provided to the bankrupt estate. In the context of bankruptcy, it is crucial to consider the timing of the credit´s establishment, but this is not decisive in determining its non-concurrent nature of the burden of defeat fees awarded after the declaration of bankruptcy.

It is essential to analyze the origin and cause of the credit´s establishment: whether it arises from the actions of the bankrupt estate or not, while also bearing in mind that situations of non-concurrency are specified in Article 84 of the Bankruptcy Law. Burden of defeat fees claimed against the bankrupt estate should be categorized as non-concurrent when their origin or cause are linked to actions in realizing assets or in the administration of the estate.

In conclusion, determining the concurrent or non-concurrent nature of the credit arising from attorney´s fees require the consideration of various elements and circumstances in an integrated manner, especially taking into account its origin or cause and the timing of its occurrence and establishment.

Published in Lexology.