Understanding Extrajudicial Enforcement in Brazil
What is the Competence to Carry Out Extrajudicial Enforcement?
A: For extrajudicial titles, the primary rule is the jurisdiction of the courts where the obligation is to be fulfilled, in accordance with Article 100, section IV, paragraph d, of the Code of Civil Procedure. Article 100 – The competent court is: IV – the place: d) where the obligation must be fulfilled, for the action that will require compliance.
Is a Bank Credit Agreement an Extrajudicial Enforceable Title?
A: A bank credit contract is *not* an extrajudicial enforcement title because it lacks certainty about the existence of the obligation. A simple bank statement revealing the use of the available amount, without the signature of the alleged debtor, does not serve as proof of the debt.
Can a Condominium Bring Suit for Enforcement of Condominium Fees?
A: In default of payment of court fees or ‘laudêmio’, an enforcement action may be filed.
V – Credits from the lease of property, such as rent, condominium fees, and expenses of the condominium in the contract, provided they are supported by documentary proof.
The condominium should file an action of knowledge, in summary proceeding, for failure to pay condominium fees (275, II, b, CPC), under penalty of dismissal from the initial implementation process.
Is the Debtor Entitled to Initiate Enforcement?
A: Before the repeal of Article 570 of the Code, the debtor was not entitled to actively initiate implementation.
In certain cases, such as, for example, popular action (Article 16 of Law No. 4.717/65), Article 100 of the CDC, and 68 of the CPP, the prosecutor may legitimately propose enforcement action. Some scholars argue that Article 68 of the CPP is implicitly repealed.
Who Has Standing to Sue for Enforcement?
A: The primary party with standing for enforcement is the creditor named in the judicial or extrajudicial enforcement title (Article 566, I, CPC). In cases of active solidarity (co-lenders), the bringing of action by one creditor benefits the others (Article 274, Part 2, CC).
Who Has Passive Legitimacy in Enforcement?
A: The primary party with passive legitimacy is the debtor named in the judicial or extrajudicial title (Article 568, I, CPC).
Passive legitimacy is scoped to identify the person who may suffer enforcement, that is, the invasion by the state judge into their property for the satisfaction of the claim.
What is Financial Liability and What Goods are Subject to It?
A: It consists of the state’s intervention in the debtor’s assets to satisfy the creditor’s claim.
The following are also subject to execution: goods under natural succession in carrying out the sentence handed down in a real or ‘reipersecutória’ action; partners (who could raise the benefit of order); property of the debtor in the possession of a third party; a spouse’s property, exceptionally, where there is reverence for the provision of the marital bond; property sold or encumbered by fraud in enforcement, even though it integrates the heritage of another; the guarantor; the estate (and after the division, the heirs, the share of inheritance).
What is Fraud Against Creditors and What are its Requirements?
A: Fraud against creditors is a diminution of assets leading to the debtor’s insolvency, to the detriment of creditors (Articles 158 to 165, 171, II, 177, and 178, II, DC).
The requirements for the configuration of fraud are: insolvency, which is an objective requirement, and occurs when the debts exceed the value of the debtor’s assets.
If Recognition of Defrauding Creditors, is the Fraudulent Act Voidable or Unenforceable?
Justification is needed.