STF validates seizure of assets without court order in cases of debts
The Federal Supreme Court (STF) ruled, by large majority, that the extrajudicial seizure of assets given as guarantee is constitutional, even without court decision. The measure, provided for in the legal framework of guarantees, was validated by 10 votes to 1 in trial in the Virtual Plenary of the Court, closed on Monday (30).
The decision authorizes extrajudicial procedures for:
- Transfer of property of movable property with fiduciary alienation;
- Execution of mortgage debts;
- Real estate guarantees in bankruptcy or judicial recovery situations.
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The trial has general repercussions, which means that understanding should be applied by all courts in the country, generating direct impacts on the credit environment, reducing operating costs and risks to creditors.
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In practice, the decision allows banks and financial institutions to resume guarantees without having to enter court, provided that these guarantees are previously formalized by contract.
Guarantee of judicial contestation
The rapporteur of the case, Minister Dias Toffoli, was accompanied by ministers Cristiano Zanin, Alexandre de Moraes, André Mendonça, Edson Fachin, Gilmar Mendes, Luiz Fux, Nunes Marques and Luís Roberto Barroso.
They maintained that, although no prior judicial authorization is required for seizure, the debtor maintains the right to appeal to court to question the legality or abuse of the measure.
The only divergence came from Minister Cármen Lúcia, who expressed concern about the risk of violation of the right of defense, especially in cases of execution of additional guarantees or in mortgage contracts, whose analysis involves greater complexity.
The constitutionality of the norm was questioned by magistrate associations, who claimed that the device would weaken judicial control over the removal of assets of debtors and could configure violation of due process.
The argument was not accepted by the majority of the Supreme, who reaffirmed the validity of the legal framework of guarantees as a legitimate instrument of legal certainty and stimulating the granting of credit.
