The submission of Theme 1,250 for repetitive review by the STJ
The Second Panel of the Superior Court of Justice has scheduled for judgment, under the system of repetitive special appeals (Theme 1,250) [1], one of the most relevant current discussions on the verification of claims in judicial reorganization and bankruptcy proceedings: the award of prevailing-party attorneys’ fees in claim objections.
The hearing is scheduled for a session of the Second Panel of the STJ on June 10, 2026, at which time the Court is expected, under the repetitive special appeals procedure, to address the scope of the prevailing-party fee regime in claim objections.
The matter was submitted in Special Appeals Nos. 2,090,060/SP, 2,090,066/SP, and 2,100,114/SP, under the rapporteurship of Justice Humberto Martins, with the following scope:villemor+1
“To determine whether prevailing-party attorneys’ fees are due, in the event the claim objection incident is upheld, in judicial reorganization and bankruptcy proceedings.”
Although the wording may appear straightforward, the controversy has a structural dimension for the Brazilian insolvency system, as it entails defining the very legal nature of the claim objection and the limits of the supplemental application of the Code of Civil Procedure to Law No. 11,101/2005.planalto+1
The progressive erosion of the insolvency estate
This debate assumes even greater importance at a time when the Brazilian reorganization system has been undergoing significant practical transformation. The broadening of carve-outs from submission to reorganization and the increasing sophistication of security structures used in the credit market have resulted in the progressive erosion of the liabilities actually subject to judicial reorganization.
In many cases, practitioners increasingly perceive that identifying claims actually submitted to the collective insolvency proceeding has become an increasingly exceptional exercise.
The case law developments on fiduciary sale, fiduciary assignment of receivables, bank lockbox arrangements, structured finance transactions, and the various forms of fiduciary ownership have led to a genuine fragmentation of the reorganization estate.
Financial institutions and market players have long since profoundly reshaped the way corporate credit is extended, rarely foregoing asset-shielding mechanisms designed to insulate their claims from the effects of judicial reorganization.
Today, significant transactions are often structured from the outset so as to operate outside insolvency risk.
Fiduciary transfers of title, fiduciary assignments, receivables control arrangements, restricted accounts, escrow accounts, cash sweep mechanisms, and bank lockbox structures have become part of the ordinary architecture of corporate credit.
The practical outcome is the progressive hollowing out of the pool of claims actually subject to the collective proceeding.
Negotiation asymmetry within judicial reorganization
This phenomenon has generated a clear bargaining asymmetry in the reorganization setting.
While major lenders are able to structure transactions backed by guarantees that often keep them outside the collective proceeding, the claims actually subject to reorganization end up concentrated among labor creditors, suppliers, service providers, ordinary commercial partners, and market participants with weaker bargaining power and less capacity to structure sophisticated contracts.
In other words, the liabilities subject to judicial reorganization increasingly tend to be made up precisely of those creditors most exposed to the economic effects of the corporate crisis.
This context is extremely important for understanding Theme 1,250. After all, the debate over attorneys’ fees in claim objections ceases to be a mere procedural controversy and comes to encompass the definition of who will bear the costs of ensuring the integrity of the general creditors’ list in a system where the creditors remaining in the collective proceeding are often those most affected by the debtor’s default.
The system for verification of claims under Law No. 11,101/2005
The controversy arises from the very structure of Law No. 11,101/2005.planalto
Articles 7 to 20 of the Judicial Reorganization and Bankruptcy Law govern:
- administrative divergence;
- credit filing:
- late proof of claim;
- objection;
- credit reservation
- and formation of the general list of creditors.
The procedure begins on an administrative basis before the judicial administrator. If a dispute remains as to the legitimacy, classification, nature, or amount of the claim, a judicial incident of objection may be instituted.
A peculiarity of the system is that the claim objection is not a classic standalone action in the traditional sense of the Code of Civil Procedure, nor can it be reduced to a mere internal administrative act within the reorganization proceeding.leidefalencias
It is an incident with a hybrid nature: it forms part of the collective insolvency procedure, yet it features adversarial proceedings, individualized litigation, evidentiary taking, and a specific judicial ruling.oabcampinas
It is precisely this hybrid nature that fuels the divergence in case law.
The conflict between the logic of the insolvency estate and the prevailing-party fee regime under the Code of Civil Procedure.
On the one hand, the 2015 Code of Civil Procedure significantly strengthened the prevailing-party fee regime. Article 85 provides: “The judgment shall order the losing party to pay attorneys’ fees to the prevailing party’s counsel.”
The STJ’s case law, particularly after the 2015 Code of Civil Procedure, has firmly consolidated an approach that emphasizes the principle of causation, the proper remuneration of legal counsel, and a more objective application of the prevailing-party fee regime.
On the other hand, judicial reorganization and bankruptcy operate under their own collective logic. The formation of the general list of creditors is of interest not only to each creditor individually, but also to the soundness of the collective proceeding and to preserving balance among the creditors subject to it.
Hence the central question has arisen: does the claim objection constitute litigation capable of generating the typical prevailing-party fees under the Code of Civil Procedure, or is it merely an insolvency incident incompatible with the traditional condemnatory logic?
The debate also directly concerns the limits of the supplemental application of the Code of Civil Procedure to the reorganization and bankruptcy microsystem.
Article 189 of Law No. 11,101/2005 provides: “The provisions of the Code of Civil Procedure shall apply, where appropriate, to the proceedings governed by this Law.”
The controversy submitted under Theme 1,250 stems in particular from the need to determine the extent to which the prevailing-party fee regime in the Code of Civil Procedure (set out in article 85 and following) can be automatically transposed to the claims verification procedure, whose structure follows its own collective and functional logic.
The debate, therefore, concerns not only attorneys’ fees, but also the limits of the interaction between the general procedural regime and the insolvency microsystem established by Law No. 11,101/2005.
The evolution of the STJ’s case law
The STJ has never established a fully uniform position on the matter. Over the years, however, a predominant line of case law has developed in favor of awarding fees where genuine litigation is present.
One of the most historically significant precedents is Special Appeal No. 1,098,069-SC [2], often cited by the Court to hold that attorneys’ fees are due when the claim filing or claim objection takes on a litigious character.
Subsequently, this understanding was reiterated in several decisions, including Special Appeal No. 1,765,555/SP [3], reinforcing the notion that the presence of genuine adversarial proceedings and resistance to the creditor’s claim triggers the application of the prevailing-party fee regime under the Code of Civil Procedure.
The case law, however, gradually began to delve deeper into the issue. The discussion moved beyond the simple question of “are fees due or not” and shifted toward defining what, in fact, constitutes litigation within the insolvency context.
The jurisprudential issue that led to the assignment of Theme 1,250.
The assignment of Theme 1,250 did not stem from a lack of case law on the subject. On the contrary, the STJ had already been consolidating a relatively stable position in favor of awarding attorneys’ fees whenever genuine litigiosity was present.
The issue that prompted the assignment was a different one: the growing divergence over the criteria used to determine whether such litigiosity actually exists within the insolvency framework.
Case law began to fluctuate on several points, including the very notion of litigiosity, the relevance of mere formal resistance, the application of the causation principle, the effects of any subsequent agreement by the debtor under reorganization, the role of the administrative phase of claim verification, and the very legal nature of the claim objection itself.
In part of the decisions, the mere absence of a formal objection came to be regarded as sufficient to deny attorneys’ fees. In others, courts held that the very need to resort to judicial proceedings could, by itself, constitute causation justifying a cost‑shifting award.
It was precisely this progressive broadening of the controversy that led the STJ’s Second Panel to submit the matter to judgment under the special appeals repetitive regime.
The special appeal selected by the STJ for this purpose is particularly revealing of how complex the controversy has become.
In the leading case, the creditor filed an administrative objection seeking to correct the amount of its claim, but the request was denied at the administrative stage due to insufficient documentation initially submitted.recuperacaojudicial.
Subsequently, in the judicial phase of the claim objection, additional documents were filed, several clarifications were provided, the calculations were revised, and the technical discussion was further developed, ultimately leading the court to recognize the amount sought by the creditor.
Even so, the São Paulo Court of Appeals (TJSP) upheld the denial of attorneys’ fees, reasoning that the debtor under reorganization had not opposed the creditor’s request in court and had, in fact, agreed to the correction of the claim amount during the course of the incident.
The case clearly illustrates the central tension underlying Theme 1,250: is the lack of subsequent formal opposition enough to preclude a fee award, even when the creditor had to bear the costs of litigation to obtain a revision of the general creditors’ list?
The centrality of litigiosity and causation
Several courts began to deny attorneys’ fees where the debtor under reorganization or the bankruptcy estate did not formally oppose the claim. In many decisions, the view took hold that, once the parties agreed to the correction of the claim amount, there was no losing party left to support a cost‑shifting order.
This understanding is expressly reflected in the very leading case selected under Theme 1,250.
The São Paulo Court of Appeals, in Interlocutory Appeal No. 2162709‑79.2022.8.26.0000 [4], held that no attorneys’ fees were payable because “in this case, the debtors under reorganization offered no resistance whatsoever to the claimant’s request, not even with respect to the opinion issued by the Judicial Administrator.”
The rationale adopted is that, in the absence of actual resistance, there can be no prevailing or losing party, and therefore no basis for a fee award.
It is at this point that the STJ gradually began to adopt a more sophisticated approach to the controversy.
Case law then began to pay closer attention to the distinction between two related but distinct concepts: procedural resistance and causation.
In certain situations, the debtor under reorganization or the judicial administrator does not formally contest the relief sought in the incident. Nevertheless, the creditor has already been forced to initiate judicial proceedings to amend the general creditors’ list, bearing court costs, specialized legal work, and often complex evidentiary production.
The controversy then shifts away from the mere presence of formal opposition and toward an examination of which party actually gave rise to the need for judicial proceedings.
This conceptual shift carries significant implications for the mechanics of claim verification itself, particularly because the very initiation of the incident often deepens the technical complexity of the dispute.
In many cases, court involvement results from a prior administrative denial or from a concrete need to revise the general creditors’ list. This does not, however, necessarily imply arbitrary conduct, artificial opposition, or any dysfunction in the administrative phase of claim verification.
The very initiation of judicial proceedings often expands the scope of fact‑finding, allowing the creditor to supplement documentation, refine its calculation schedules, clarify adjustment criteria, develop more robust legal arguments, and, where necessary, introduce expert or other evidence that was not available during the administrative phase.
In such scenarios, the administrative conclusion that is later revised in court does not always stem from simple opposition by the debtor or the judicial administrator, but rather from the broader fact‑finding made possible by the claim‑objection incident itself.
The economic and distributive impact of Theme 1,250
Theme 1,250 will be decided against a backdrop in which creditors subject to the collective proceeding have become progressively more vulnerable within the economic architecture of judicial reorganization.
The ongoing erosion of the pool of claims subject to the collective proceeding (as discussed above) ultimately concentrates the economic effects of the reorganization process on creditors who are less protected by structured security interests.
The debate over attorneys’ fees thus also takes on a distributive dimension.
If a broadly restrictive approach prevails, the costs of correcting the general creditors’ list will fall primarily on the remaining creditors within the collective proceeding, that is, precisely those who are already most exposed to the debtor’s financial distress.
Conversely, making fee‑shifting broadly and unconditionally applicable also entails considerable risks. In large‑scale reorganizations, the proliferation of attorneys’ fees awards can generate substantial ancillary liabilities, fuel opportunistic litigation, and ultimately jeopardize the economic feasibility of the reorganization process itself.
It is also worth noting at this point that, inevitably, a related debate will arise regarding whether such attorneys’ fees are concursal or extraconcursal in nature, an issue that is particularly sensitive in light of the already significant fragmentation of the universal jurisdiction.informativos.
Moreover, the ruling is also expected to affect the work of judicial administrators.
As an officer of the court, the judicial administrator occupies a central role in the claim‑verification procedure, particularly in the administrative phase set out in article 7 of Law No. 11,101/2005.
Any potential consolidation of a causation‑based approach to fee‑shifting may, in turn, encourage a more technically rigorous administrative review of claims, with a likely increase in documentary scrutiny, evidentiary requirements, and the depth of the opinions issued by the court’s officer.
In addition, the precedent is likely to have a direct impact on the handling of administrative objections themselves, by fostering more refined consensual solutions before incidents are brought to court.
Final considerations
Although it is not possible to anticipate the outcome of the judgment, the development of the case law suggests that the STJ is unlikely to adopt a solution that absolutely precludes the award of attorneys’ fees.
The most likely trend appears to favor an intermediate solution, based on the combined requirements of actual litigiosity and procedural causation.
The very decision to submit the issue to the repetitive‑appeals procedure shows that the STJ now recognizes that the dispute has moved beyond an isolated, episodic debate over attorneys’ fees and has taken on a genuinely structural dimension for the claim‑verification system in judicial reorganization and bankruptcy.
The Second Section will likely be required to craft a solution that reconciles (i) the regime set out in article 85 of the Code of Civil Procedure (in light of article 189 of Law No. 11,101/2005), (ii) the collective logic of judicial reorganization, (iii) the principle of preservation of the enterprise, and (iv) the need for a minimally balanced allocation of the costs associated with maintaining the integrity of the collective proceeding.
In parallel, the adjudication of Theme 1,250 is taking place at a particularly sensitive stage in the development of Brazilian restructuring law. The progressive expansion of categories of claims excluded from the collective proceeding and the growing sophistication of security structures have significantly reduced the universe of claims that are actually subject to the collective process. At the same time, the creditors who remain within the insolvency framework tend to be precisely those most affected by the restructuring of the debtor’s liabilities.
In this context, the debate over attorneys’ fees in claim‑objection proceedings ceases to be a merely procedural controversy. What is ultimately at stake is the allocation of the costs of preserving the integrity of the collective proceeding and the economic limits of the very collective logic of judicial reorganization.
These aspects, therefore, point toward a likely consolidation of an understanding close to the notion that the award of attorneys’ fees in claim‑objection proceedings will depend on a showing of actual litigiosity or of causation sufficient to justify bringing the incident to court, thereby rejecting both an absolute prohibition of fees and their automatic application in every judicially successful objection.
Therefore, Theme 1,250 has the potential to become one of the most consequential precedents in the current evolutionary stage of Law No. 11,101/2005, redefining not only the fee‑shifting regime in claim‑objection proceedings, but also the contemporary understanding of the collective creditors’ proceeding itself.
[1] https://processo.stj.jus.br/repetitivos/temas_repetitivos/pesquisa.jsp?novaConsulta=true&tipo_pesquisa=T&cod_tema_inicial=1250&cod_tema_final=1250
[2] https://processo.stj.jus.br/processo/pesquisa/?tipoPesquisa=tipoPesquisaNumeroRegistro&termo=200802395551&totalRegistrosPorPagina=40&aplicacao=processos.ea
[3] https://processo.stj.jus.br/processo/pesquisa/?tipoPesquisa=tipoPesquisaNumeroRegistro&termo=201702036289&totalRegistrosPorPagina=40&aplicacao=processos.ea
[4] https://esaj.tjsp.jus.br/cposg/show.do?processo.codigo=RI0070RL70000
By: Eduardo Augusto Allegretti
Restructuring and Insolvency | CPDMA Team