In the session held on 10/26/2023, the plenary of the Supreme Federal Court (STF) decided by majority vote that the extrajudicial enforcement in mutual contracts within the Real Estate Financial System (SFI), involving property fiduciary alienation as provided by Law 9,514/97, is constitutional. The case’s rapporteur, Minister Luiz Fux, along with other justices including Cristiano Zanin, André Mendonça, Alexandre de Moraes, Dias Toffoli, Nunes Marques, Gilmar Mendes, and Luís Roberto Barroso, voted in favor of upholding the norm. However, there was dissent from Minister Edson Fachin, supported by Justice Cármen Lúcia. Fachin argued that extrajudicial enforcement in mutual contracts is not compatible with the constitutional protection of the fundamental right to housing.
The case in question involved a dispute between a debtor and Caixa Econômica Federal (CEF). The Third Regional Federal Court had previously ruled that extrajudicial enforcement of titles with fiduciary alienation clauses does not violate constitutional norms and should only be reviewed by the judiciary if the debtor deems it necessary. In his opinion, Minister Luiz Fux contextualized the emergence of Law 9,514/97, emphasizing that it was created to enhance the home financing system. He stated that the law allows for subsequent judicial review of its legality, ensuring that there is no violation of the guarantee of the judiciary’s non-excludability.
Fux also highlighted the economic and social relevance of the case, mentioning the impact of extrajudicial procedures on interest rates and its role in revolutionizing the Brazilian real estate market. According to the minister, fiduciary alienation led to a significant increase in credit volume, boosting the construction sector and generating employment.
However, in his dissenting opinion, Minister Edson Fachin argued that validating extrajudicial enforcement in mutual contracts with fiduciary alienation benefits the real estate credit market but does not contribute to a just and solidarity-based society. He concluded that the contested legislation violates principles such as due process of law, access to justice, the right to a natural judge, and is not in line with the constitutional protection of the fundamental right to housing.
In the end, the following thesis, proposed by rapporteur Minister Luiz Fux, was established: “The procedure established by Law 9,514/97 for the enforcement of fiduciary alienation and guarantee clauses is constitutional, given its compatibility with the guarantees provided in the Federal Constitution.” Thus, in the specific case, the extraordinary appeal was not granted, and the decision of the São Paulo State Court was upheld.
Authoria: Frederico Augusto Bernardo de Oliveira
