By Alberto Feitosa
According to a recent decision of the Superior Court of Justice (STJ), the Third Panel held, in the records of Special Appeal No. 2,092,980, that the repossession action does not require the prior holding of public auctions.
Fiduciary alienation is a form of real guarantee for the payment of the debt, in which the asset itself, in this case a property, answers for the debtor’s default. In other words, in this case the fiduciary creditor transfers the resoluble ownership of the immovable property.
Law No. 9,514/1997, in its Article 26 and the following articles, sets out the consequences of default, among them the consolidation of ownership by the fiduciary creditor.
That is, once the debt has fallen due and not been paid, the debtor will be placed in default so that the debt is paid, and, failing this, ownership will be consolidated in favor of the fiduciary creditor.
It is important to mention that Article 27 of the aforementioned law provides for the property to be taken to an extrajudicial auction.
In the specific case, even if such consolidation of ownership occurred, the fiduciary creditor was not authorized to be reinstated in the possession of the property, since the holding of the auctions was considered indispensable before the party could be placed in possession of the asset.
Thus, this decision sets a new milestone for this matter, since, as the Superior Court of Justice (STJ) ruled, the failure to hold an auction does not bar repossession. This is because, in the understanding of the Reporting Justice Nancy Andrighi, the consolidation of ownership extinguishes the contract and, consequently, transfers full ownership of the asset to the fiduciary creditor by means of the consolidation.
With the contract that grounded the maintenance of direct possession by the debtor extinguished, the debtor begins to exercise illegitimate possession of the asset, satisfying the requirements for repossession to occur.
Finally, this decision, in analyzing Article 30 of Law No. 9,514/1997, confirms that the only requirement is the consolidation of ownership, without any prohibition on repossession occurring before the judicial auction.
In this regard, a change in the understanding of case law is observed, away from the position that the auction should occur before repossession, which used to guarantee the debtor the right to keep possession of the property until the completion of such proceedings.
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