11/03/2022
In a recent decision, the justices of the Special Court of the Superior Court of Justice (STJ), by seven votes to six, decided that the debtor shall pay late charges, arising after the judicial deposit that partially or fully guaranteed the amount under discussion.
In practice, the decison concluded on 10/19/2022, means a revision of the Repetitive Matter 677 of the STJ. The winning vote by the reporting justice Nancy Andrighi, has the following wording: “in the judicial execution, the bond posted as a guarantee or resulting from the pledge of financial assets does not exempt the debtor from paying for the consequences of its delay, as provided for in the enforcement order, upon the release of the funds to the creditor, as such, the outstanding balance should be deducted from the final amount due”.
The discussion involves deposits or pledges made during the execution of the sentence, therefore, after the amount owed has already been defined. At this stage, if the debtor disagrees with the executed amount, it is possible to discuss it, even before the higher courts. In order to discuss such amount, the executed party has to guarantee the amount being charged, but the creditor could only effectively raise the amount when the judicial discussion had ended, since such amount could only be raised by the creditor (executor) upon the post of a bond (guarantee), pursuant to article 525, §10, of the CPC.
Previously, the Second Section of the STJ had established the understanding in Repetitive Matter 677, in the judgment of REsp 1.348.640/SP (published on 05/21/14), that “in the execution phase, the deposit posted in court of the judgement amount (full or partial) extinguishes debtor’s obligation, limited to the amount posted.”
In the judgment of the case, the justice heard the appeal and granted it to determine the incidence of default interest provided in the judicial decision until the effective release of the credited amount, at which time the amount then posted should be deducted from the total amount due and its accruals paid by the financial institution.
In this sense, in the case of a deposit posted as a guarantee for court’s judgment, the occasional consequences of the late payment will have to be paid by the actual debtor, and not by the financial institution, which shall be responsible only for the monetary adjustment.
