Post by account_disabled on Jan 25, 2024 4:14:23 GMT
If the defendant paid 70% of a consortium, it is not reasonable to seize the asset due to default. This was understood by the majority of members of the 14th Civil Chamber of the Court of Justice of Rio Grande do Sul, when revoking an injunction that granted the search and seizure of a car. The first instance had granted the injunction to the financial institution that owned the consortium. Afterwards, the car buyer was asked to pay the remainder of the debt if he wanted. If he did, the car would be returned.
But the debtor decided to appeal the Buy Phone Number List injunction to seize the car, requesting the dismissal of the action in the TJ-RS. The appeal's rapporteur, judge Míriam Tondo Fernandes, revoked the injunction, as she understood that she was facing a "substantial compliance with the contract". After all, the debtor had already paid 97% of the contracted installments, as indicated in the consolidated consultation of the bank's consortium system. For installments not paid at the end of the contract, she considered, the creditor could resort to collection action. To illustrate her understanding, the judge cited a precedent from the Superior Court of Justice, which stated: "If the ordinary courts recognize, after the assessment of consignment and search and seizure actions, based on the evidence in the case, that the balance remaining in favor of the creditor of the fiduciary alienation contract, the continuation of the search and seizure action is not justified".
The rapporteur was followed by judge Judith dos Santos Mottecy, president of the collegiate, forming the majority. Dissenting vote Judge Mário Crespo Brum disagreed with his colleagues, understanding that the 2nd Section of the STJ, when judging RE 1.622.555-MG , in February 2017, had already recognized that the theory of substantial performance does not apply to guaranteed contracts by fiduciary alienation clause. This is because it is a legal institute with its own discipline, which attracts the application of the Civil Code in a subsidiary way. According to Brum, although this judgment was not subject to the repetitive appeals regime, it constitutes a "robust indication" of the jurisprudential guidance of that higher court.
But the debtor decided to appeal the Buy Phone Number List injunction to seize the car, requesting the dismissal of the action in the TJ-RS. The appeal's rapporteur, judge Míriam Tondo Fernandes, revoked the injunction, as she understood that she was facing a "substantial compliance with the contract". After all, the debtor had already paid 97% of the contracted installments, as indicated in the consolidated consultation of the bank's consortium system. For installments not paid at the end of the contract, she considered, the creditor could resort to collection action. To illustrate her understanding, the judge cited a precedent from the Superior Court of Justice, which stated: "If the ordinary courts recognize, after the assessment of consignment and search and seizure actions, based on the evidence in the case, that the balance remaining in favor of the creditor of the fiduciary alienation contract, the continuation of the search and seizure action is not justified".
The rapporteur was followed by judge Judith dos Santos Mottecy, president of the collegiate, forming the majority. Dissenting vote Judge Mário Crespo Brum disagreed with his colleagues, understanding that the 2nd Section of the STJ, when judging RE 1.622.555-MG , in February 2017, had already recognized that the theory of substantial performance does not apply to guaranteed contracts by fiduciary alienation clause. This is because it is a legal institute with its own discipline, which attracts the application of the Civil Code in a subsidiary way. According to Brum, although this judgment was not subject to the repetitive appeals regime, it constitutes a "robust indication" of the jurisprudential guidance of that higher court.