The judgment on Repetitive Topic No. 677, which brought back the discussion regarding the obligation of the debtor to pay any charges arising from default, even if the execution has been fully or partially secured via a judicial deposit, is suspended before the Superior Court of Appeals (STJ). Two Justices have already voted and there is a tie regarding who has liability for the payment of late payment charges arising after the deposit that secured the execution.
To clarify what is under debate, it is worth bringing back some concepts on the subject. In every lawsuit in which there is a judgment with a payment obligation, after the decision on the merits, the execution phase begins, in which the debtor will effectively pay what he owes to the creditor, according to the judgment rendered.
Executions of judgment generally follow the procedural flow: debtor and creditor submit their calculations, the judge decides who has indicated the correct amount (i.e., ratifies the amount due), the debtor is summoned to pay and, finally, payment is made via judicial deposit.
However, if the debtor believes that the amount ratified does not correspond to that really due, the discussion regarding the calculations may continue, and it will be incumbent on the judgment debtor to guarantee the amount of the execution, usually by means of a deposit.
In the exercise of its right to a full defense, the debtor, in certain cases, may even submit the dispute to higher courts. Meanwhile, the amount ratified remains deposited in the judicial account, and is adjusted for inflation following the indexes for savings accounts. Once the discussion is closed, the case returns to the trial court, for the amounts to b e released to the creditor.
In relation to this point, a debate began regarding the adjustment for inflation and late payment charges due to the creditor. This is because the remuneration applied on the amount deposited in the judicial account would not be sufficient to cover the adjustment criteria considered correct. Likewise, the late payment charges due, in theory, due to the time elapsed between the ratification of the calculations made by the trial judge and the actual receipt of the amount by the creditor, after the judgment, would also not be sufficient. This period between the ratification, followed by the deposit, and withdrawal of the amounts would represent a significant monetary loss for the creditors, who began to claim the differences in the adjustment for inflation and late payment to be paid by the debtor.
However, it is claimed that it would not be fair to assign to the debtor in good faith liability for late payment charges and adjustment for inflation, since it had the execution guaranteed at the time it was summoned, that is, soon after ratification of the calculations.
In view of this conflict, which began to be raised and discussed in many proceedings, the need arose to establish a specific theory on the matter, so that all the bodies of the Judiciary Power could extinguish the corresponding disputes.
Then, in 2014, Repetitive Topic No. 677/STJ was decided, which ended all discussions regarding liability for the payment of late payment charges arising after the deposit that guaranteed the execution, by establishing the theory that "in the execution phase, the deposit in court of the amount (full or partial) of the award extinguishes the obligation of the debtor, within the limits of the amount deposited" (emphasis added).
On August 25, 2020, however, during a session of the Third Panel of the STJ, Justice Paulo de Tarso Sanseverino raised a point of order to propose a review of the matter, in order to define "whether, in the enforcement proceeding, the deposit in court of the amount of the obligation, with the consequent application of interest and adjustment for inflation at the expense of the depositary financial institution, exempts the debtor from the payment of charges resulting from default, as provided for in the judicially or extrajudicially enforceable instrument, irrespective of the release of the amount to the creditor.”
One of the pillars of the revision is the fact that the judicial deposit made for the purposes of guaranteeing the execution could not be confused with payment, since it would not have animus solvendi (intention to settle the debt), such that there would be no reason to exempt the debtor from liability for the late payment charges.
On October 7, 2020, in an opinion drafted by Justice Nancy Andrighi, the STJ accepted the point of order and the procedure for review of Topic 677/STJ was initiated.
On June 2, 2016, the reporting Justice voted in favor of revising Topic 677/STJ, supporting implementation of the following theory: “In enforcement proceedings, the deposit made as security for the judgment or arising from attachment of financial assets does not relieve the debtor from payment of the consequences of its default, as provided for in the enforceable instrument, and, upon actual delivery of the money to the creditor, it must deducted from the balance of the judicial account.”
After the reporting judge's vote, there was a request for review of the record and the case was removed from the agenda. The judgment was resumed on September 10, 2021, when Justice Paulo de Tarso Sanseverino heard the appeal, but denied it relief. Currently, therefore, there are two divergent written opinions on the topic.
The reasoning of Justice Sanseverino was to the effect that there would be no fault by the debtor in the fact that the adjustment for inflation applied by banks in contract with the Judiciary is lower than the charges resulting from the delay.
The withdrawal of the amount covered by the execution should be carried out by the creditor immediately after the deposit is made. The non-withdrawal immediately thereafter is a mere exception, which occurs only when the judgment debtor files an objection on grounds deemed relevant by the court.
In the view of Justice Sanseverino, the decision on the allocation of the deposit aimed at guaranteeing the execution is not in the hands of the debtor, but rather the Judiciary, and no liability or penalty may be assigned to the debtor for the delay in the release and consequent bank remuneration below the late charges.
As highlighted by the Justice, the intended revision of the theory would bring about disadvantageous consequences for the enforcement proceeding, inasmuch as it would discourage the debtor from offering money for attachment and would encourage it to plead substitution of the cash guarantee with a bank guarantee. This is because it is disadvantageous for the debtor to offer money for attachment (which will be adjusted for inflation at the savings account rate), while it could invest the same amount in an investment with much higher profit potential.
In addition, the execution would be made eternal, since there would always remain late payment charges to be executed, generated between the date of the deposit and the date of actual withdrawal. In other words, even if the deposit were made by the debtor on one date and withdrawn by the creditor on the subsequent day, there would be a difference in default interest to be enforced, and the continuation of the execution on account of this remaining amount would be mandatory.
It is also important to emphasize the provisions of article 401, I, of the Civil Code, which imposes extinguishment of the arrears by the debtor, when it pays the installment due, plus the losses arising from the delay. In other words, any obligation related to late payment would be extinguished when the debtor makes the judicial deposit, consisting of the principal amount of the debt, plus the late payment charges up to the time of the actual deposit.
In addition, precedents 179 and 271 of the STJ regulate the adjustment for inflation of amounts deposited in court. They provide that the payment of the adjustment for inflation related to the amounts collected is the responsibility of the establishment that receives the money from the judicial deposit (bank in a partnership agreement with the Judiciary), and that the adjustment is independent of a specific action against the depositary bank. Liability for late payment charges, therefore, is taken out of the hands of the debtor.
After the opinion of Justice Paulo de Tarso Sanseverino, Justice João Otávio de Noronha requested review of the case record, which was converted into a collective hearing for the other Justices, again suspending the judgment, without a date for its resumption.