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The decision of the 3rd panel reaffirms that fraud against creditors removes the protection of non-attachability, even without formal registration of the mortgage.

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Tuesday, November 5, 2024

 

Updated at 12:38

 

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On Tuesday, the 5th, the 3rd panel of the STJ unanimously decided that a property used as a family residence, sold by a debtor in a situation of insolvency, can be seized, even without the formal registration of a mortgage. The decision, reported by Justice Nancy , reinforces the Court's jurisprudence on the prevalence of combating fraud against creditors to the detriment of protecting family assets.

 

The case began with a legal dispute in the Court of Justice of Rio Grande do Sul involving loan agreements. The debtor offered a residential property as collateral, but did not register the mortgage, an essential element to formalize the credit guarantee. Subsequently, the property was transferred to a close friend of the debtor, in an act that the creditors alleged was fraudulent, aiming to avoid payment of the debt.

 

In the lower courts, the Court of Justice of Rio Grande do Sul recognized the fraud against creditors and determined that the property could be seized, even though it was used as a family residence. The state court pointed out that the lack of registration of the mortgage was intentional, constituting an attempt to frustrate the execution of the credit. The case was then taken to the Superior Court of Justice for analysis.

 

STJ confirms seizure of property in fraud against creditors. 

Justice Nancy  emphasized in her vote that the protection of family assets, guaranteed by Law 8,009/90, cannot be used as a subterfuge for fraudulent practices. His Excellency explained that, although the mortgage had not been formally registered, the configuration of fraud against creditors was evident. The decision was based on the evidence that the third-party purchaser was fully aware of the debtor's insolvency and that the sale of the property was carried out with the intention of avoiding compliance with contractual obligations.

 

The rapporteur emphasized that the property, even if used as a family residence, could not maintain its legal protection if it had already been offered as collateral in loan agreements. By not registering the mortgage, the debtors deliberately attempted to avoid their responsibilities, a behavior that, according to the minister, makes any claim of non-attachability unfeasible.

 

The panel, following the rapporteur's vote, denied the appeal.

 

link: https://www.migalhas.com.br/quentes/419351/stj-fraude-contra-credores-permite-penhora-de-imovel-familiar