A debtor is not permitted to offer as collateral a property characterized as a family home and then claim that such collateral has no legal basis, requesting its exclusion and invoking the impossibility of disposal.
Based on this understanding, the courts denied the appeal of debtors who, after offering their own residence as fiduciary collateral, argued in court that the property could not be accepted as collateral by virtue of the legal protection of the family home.
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The owners of the property entered into financing with a bank and put up the property as collateral. Subsequently, they sought a declaration of nullity of the disposal levied on the property, on the grounds that it was a family home, requesting that its immunity from attachment be recognized.
The trial court ruled in favor of the debtors’ request, but the Court of Justice of Santa Catarina (TJSC) granted the appeal of the CEF, considering that the principle of contractual good faith prevents the practice of abusive activities that may cause harm to the parties.
In the special appeal, the owners of the property argued that the exception to the rule of immunity from attachment applies only in cases of mortgage, and not in fiduciary disposal.
Family home – ethics and good faith
According to the reporting justice of the special appeal, Justice Nancy Andrighi, the issue of the indiscriminate protection of the family home takes on new light “when confronted with conduct that runs counter to ethics and good faith themselves, which must permeate all business relationships.”
She emphasized that Law 8.009/1990, which deals with the immunity from attachment of the family home, establishes that the property thus characterized shall not be liable for any type of civil, commercial, tax, social security, or other debt, “but nowhere does it provide that such property may not be disposed of by its owner.”
According to the justice, the owner’s will is sovereign in putting up the family home itself as collateral.
“It cannot be concluded that the legal family home is inalienable and, consequently, that it cannot be disposed of by way of a fiduciary transfer by its owner, if so desired, pursuant to article 22 of Law 9.514/1997.”
Nancy Andrighi recalled that no one may benefit from their own wrongdoing, it being unfeasible to offer the property as collateral and then state that such collateral has no legal basis. The conduct, according to the reporting justice, is also unacceptable due to the prohibition against contradictory behavior, a principle of civil law.
According to the reporting justice, this understanding leads to the conclusion that, although the family home is immune from attachment even when indicated for attachment by the debtor itself, the attachment is not to be annulled “in the event of bad faith grounded in this debtor’s contradictory conduct.”
Source: STJ
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