The Superior Court of Justice (STJ), when judging Special Appeal 2,056,285 / RS (REsp 2,056,285 / RS) in April, reinforced the understanding consolidated in its Precedent 359 that it is the duty of the body maintaining the register of defaulters to notify the consumer before enrolling him in credit protection agencies. It is not enough to simply notify that the registration has been made. It is understood that it is necessary to guarantee the consumer time to pay the debt or oppose the denial, if he considers it illegal.
By unanimously granting the special appeal, the 3rd Panel of the STJ not only reinforced the understanding already established but also made it clear that it is necessary to send physical notifications to debtors before including them in restrictive credit registers.
In the decision, the Reporting Minister Nancy Andrighi pointed out that, although the jurisprudence of the STJ dispenses with the need for notification with acknowledgement of receipt (AR), as already pacified by Statement 404 of the Precedent of the STJ, the prior registration of the consumer in restrictive credit registers must be preceded by the sending of physical correspondence to the consumer's address.
The case analyzed in REsp 2.056.285/RS refers to an action for cancellation of registration and request for compensation filed by a woman who claimed not to have been duly notified of her registration in the register of defaulters. There would have been no prior sending of physical correspondence to her address.
The plaintiff's request – which would have debts of approximately R$ 3,500 with a bank and R$ 110 with a virtual payments platform – was partially upheld by the 1st instance, which determined the cancellation of the registration regarding a debt of R$ 589.77 with the bank, since there was no proof of notification. The other requests were rejected.
The author appealed, but her appeal was not granted by the Court of Justice of Rio Grande do Sul (TJRS). The court held that the requirement of express notification in Article 43, paragraph 2, of the Consumer Protection Code (CDC) would be satisfied if an e-mail or a simple mobile text message (SMS) is sent by the creditor, which would have been effectively carried out. Faced with this decision, the plaintiff appealed to the Superior Court, which diverged from the TJRS.
In the STJ, the Reporting Minister argued that admitting the notification exclusively via e-mail or by SMS would represent a decrease in consumer protection. This way of proceeding would violate the provisions of Article 4, caput, of the CDC, by causing injury to the legally protected good or interest.
According to the decision of the STJ, although the use of e-mail and cell phone has positive effects on consumer relations, its exclusive use as the only mechanism for notifying the consumer about the opening of registration, fiche, registration and personal and consumption data could not be considered lawful.
It was highlighted the fact that, due to economic and social inequalities, "the consumer, a vulnerable part of the relationship, in many cases, does not have an electronic address (e-mail) or, when he does, does not have easy access to computers, cell phones or other devices that allow him to access it constantly and without major difficulties, highlighting his technical, informational and socioeconomic vulnerability."
In relation to this question, it is worth noting three aspects:
- It is controversial the idea that the prior sending of notifications by e-mail or SMS to inform the consumer about their inclusion in delinquent registers would mean a reduction of their protection or injury to their rights. This is because the use of electronic media in the daily life of the population is widely disseminated. According to the Brazilian Institute of Geography and Statistics (IBGE), 90% of Brazilian households already had access to the internet in 2021. In this way, it is possible to assess that the debtor could have access to the communication almost immediately, in time, even, to take measures to avoid its registration in the register of debtors.
- The use of electronic means to send official communications in civil and criminal proceedings is already widespread. There should, therefore, be no impediment so that a simple notification of notice of the inclusion of the consumer in delinquent registers could be made by e-mail or SMS.
- By making a decision that favors those who live in extreme social vulnerability and do not have access to the internet, the STJ ended up benefiting non-vulnerable debtors. With this, the maxim of treating consumers to the extent of their inequality was broken. Perhaps it would have been more appropriate to adopt criteria that would protect the most vulnerable and, at the same time, maintain the use of electronic means to send notifications as a valid resource.
Over time, given the facilities and benefits provided by the use of digital media, it is possible that the STJ will review the decision and end up adopting a more flexible stance. It is important to follow the discussions on the subject carefully.
"It is dispensable the Notice of Receipt (AR) in the letter of communication to the consumer about the denial of his name in databases and registers."