Members of the company may end up answering for fraud
BWA’s partners may end up being held liable for a crime of fraud in judicial recovery for having presented a false list of claims. Although the company’s defense argued that the debt with investors would be R$ 449,683.62, the court found that the correct amount is R$ 295,412,752.63 and ordered an attachment of this amount from the partners‘ accounts.
The defense’s attempt to reduce the debt amount to be included in the Judicial Reorganization by placing the responsibility on the judicial administrators ended up being left to Jéssica da Silva Farias, Marcos Aranha and Roberto Willy Ribeiro, partners of the Santos company. They had the powers of partners suspended by the judge, in addition to the blocked accounts.
„Faced with evidence of a crime, I order the precautionary constriction of all assets of partners Jéssica da Silva Farias, Marcos Aranha and Roberto Willy Ribeiro up to the limit of R$ 295,412,752.63“.
The defense had argued that „it presented an inadequate list of creditors in the judicial reorganization process“ and that the amount of the due credits would not be R$ 295,412,752.63, but only R$ 449,683.62.
Suspicion of Crime in RJ
The problem is that Judge Marcelo Barbosa Sacramone, of the 2nd Bankruptcy and Judicial Recovery Tribunal, when examining the request pointed out that the partners had signed the supposed false list of credits.
„There is strong evidence of a crime being committed not only by the administrators but also by the signatory partners themselves“.
Under Law 11.101/2005, which deals with bankruptcy and judicial recovery, this type of conduct may end in up to 4 years of imprisonment and payment of a fine.
Even if the decision does not state the exact amount of BWA’s debt, it made it clear that the conduct of both the administrators and the partners must be investigated.
BWA trying to reduce the value
BWA’s defence in stating that the amount would not be that presented in the list of creditors of R$ 295,412,752.63 justified that this amount included the BWACOIN tokens.
„There was the inclusion of amounts that did not correspond to debts contracted or constituted. Token amounts would have been included, which would have referred to arrangements for creditors to redeem those amounts“.
In this way, the company suspected of having a financial pyramid with cryptomorphs would have had a debt value of up to 20% of what was on the list.
According to BWA’s defense, „only credits based on executive titles could be included in the list of creditors,“ which total R$449,683.62.
The argument is in line with the Judicial Reorganization Plan presented last month.
At the time, BWA had stated that the delivery of tokens does not mean payment of debts, since there are still judicial discussions on their merits. The company said that the contracts signed between it and its clients do not constitute extrajudicial executive titles.
Decision for full value
The fact is, however, that in this last decision, Sacramone made it clear that „according to art. 49 of Law 11.101, all claims must be listed, net or illiquid, overdue or falling due“.
In other words, the magistrate, although the decision does not state that the amount must be that of more than R$ 295 million, makes it clear that it is not only that amount of R$ 449 thousand.
With this decision, the argument presented in the judicial reorganization plan that „only clients holding extrajudicial or judicial executive titles may be included in the list of Bitcoin Billionaire, which will be included in the plan only with the constitution of the enforceable, net and demandable title“ falls to the ground.
BWA’s new RJ management
BWA’s defence even claimed that the receiver was colluding with the receiver Quist to obtain a large fee advantage over the case. Although BWA has collected e-mails about these deals, the judge said that they do not bring „even the slightest piece of evidence“.
The magistrate, despite being faced with a serious fact, decided to „summarily dismiss the request to dismiss the trustee“.
Sacramone, however, informed the Public Prosecutor’s Office to „promote criminal investigation proceedings in front of the signatory Dr. Adiv Abdouni“.
As the case involved a lawyer, the Court also appointed the Ethics Council of the Brazilian Bar Association (OAB) to investigate the conduct.
The trustee, however, was dismissed for another reason: suspicion of a crime of illegal clearance of credits. This led to the judge then appointing administrator Luis Fernando Giordano. He will have to estimate his fees at 48 (hours) and make a commitment to perform the function.
According to the magistrate, Giordano’s duties will „be carried out until the creditors‘ meeting decides on the appointment of a trustee and his fees will be borne by the receiver himself“.