The Superior Court of Justice (STJ) has established a doctrine stating that the creditor’s right to request the adjudication of a seized property does not expire until the property is sold.
The decision was made in the Special Appeal No. 2.041.861 – SP, in which, after the proceedings for the judicial auction of the seized property had already begun, with an auctioneer appointed, the creditor requested the adjudication of the property instead of continuing with the auction.
The request was accepted by the trial court and upheld by the Court of Justice. Against the decision of the Court, the debtor filed a Special Appeal, which was admitted by the Court.
In the Appeal, the debtors argued that the right to adjudication would be precluded with the start of the auction procedure. Additionally, they claimed that the lessees, companies under judicial reorganization, were not notified to exercise any preferential right.
In her ruling, Minister Reporter Nancy Andrighi determined that since adjudication is the preferred form of credit satisfaction, it should not be subject to a preclusive deadline and can be requested at any time until the property is sold.
However, according to the Raporter, a late expression of interest may result in the creditor being liable for expenses incurred with the auction up to the moment of adjudication.
Regarding the preferential right, the Reporter comments that the provision of the Tenancy Law does not extend to cases of property loss or judicial sale, and the fact that they are under judicial reorganization does not impede adjudication, nor is there a need for their notification.
Thus, it is possible for the executing creditor to make a request for adjudication even if the proceedings for the judicial auction of the seized property have already started, as long as they bear the expenses already incurred.
Author: Maria Luiza Duanetti
