For the Third Panel of the Superior Court of Justice (STJ), the attachment of shares of an investment fund does not automatically confer upon the enforcing creditor the status of shareholder, not subjecting them to the risks arising from this type of investment.
On the basis of this understanding, unanimously, the panel granted the special appeal of the Fundacao dos Economiarios Federais (Funcef) and determined that any fluctuations in the value of the investment fund shares belonging to the judgment debtor may neither harm nor benefit the enforcing party, to whom it is not possible to transfer an amount greater than that of the instrument under enforcement.
The case analyzed dealt with an enforcement involving shares of an investment fund. There was an appreciation of the shares before the redemption, and Funcef challenged the decision that, in the enforcement of the judgment, ordered the issuance of payment orders in favor of the parties as to the amount reserved in the court account.
Funcef maintained that it is not the enforcing party’s right to receive more on account of the appreciation of the shares, alleging an undue excess, in addition to the need to observe the principle of fidelity to the instrument.
The Court of Justice of Rio de Janeiro (TJRJ) understood that, by accepting the attachment of shares of the investment fund, the enforcing party came to be part of that legal transaction, assuming the status of investor in the fund and subjecting itself to the inherent risks, at least with respect to the shares representing its true credit.
Attachment does not affect the right of ownership before the final expropriation
According to the reporting justice at the STJ, Justice Marco Aurelio Bellizze, the purpose of the attachment is to preserve the assets for the effective and timely fulfillment of the obligation – rendering ineffective, with respect to the enforcing creditor, any act of disposal carried out by the judgment debtor -, but it does not interfere with the debtor’s right of ownership while the final expropriation has not been carried out.
For the justice, when the constriction falls upon shares of an investment fund – a type of securities, included in the legal list of preference for attachment, as indicated by article 835, III, of the Code of Civil Procedure (CPC) and article 2, V, of Law 6,385/1976 -, the ownership of these assets remains with the investor debtor, until the redemption or the final expropriation.
Fluctuation in value may require supplementation or exclusion of excess
Bellizze considered improper the transfer to the enforcing creditor of the circumstance inherent to this type of legal transaction (which binds only the contracting shareholders), since it would not be possible to impose upon them the respective burdens nor to attribute the respective bonuses, all the more so in view of the principle of the relativity of the effects of the contract.
“As long as the redemption or the final expropriation of the attached investment fund shares has not been carried out, the supervening devaluation of these assets gives rise, for the enforcing creditor, to the right to request the supplementation of the attachment, in line with what article 850 of the CPC/2015 provides,” he stated.
On the other hand, the justice added, the supervening appreciation of the shares requires that, at the moment of effective payment, the amount exceeding the enforced credit duly updated and increased by the legal charges be excluded – under penalty of incurring an undue excess of enforcement, reaching an amount greater than that contained in the enforceable instrument, under the terms of article 917, paragraph 2, I and II, of the CPC.
In the case analyzed, in deciding to reverse the judgment of the TJRJ, Marco Aurelio Bellizze limited the amount to be withdrawn by the enforcing party to that effectively contained in the enforceable judicial instrument, duly updated and increased by default interest and attorney’s fees.
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