Medidas atípicas na execução: STJ estabelece parâmetros objetivos e reduz insegurança

In recent decisions handed down in Special Appeals No. 1.955.574/SP and No. 1.955.539/SP, the Superior Court of Justice (STJ) established objective parameters for the use of atypical measures
in enforcement proceedings. These decisions were established as theses in Theme 1.137 of the STJ’s repetitive appeals and will now guide identical future legal situations.

Atypical Executive Measures

In enforcement proceedings, the creditor seeks the fulfillment of an obligation imposed on the debtor, such as, for example, the payment of a debt (not paid on the original due date, voluntarily). In order to guarantee the effectiveness of this right and of judicial protection itself, the Code of Civil Procedure (CPC) provides for various typical measures, such as the online seizure of the debtor’s bank accounts (art. 854).

In addition to these measures expressly provided for by law, the CPC also gives the judge the possibility of adopting atypical measures, i.e. those not provided for in procedural law, to ensure the effectiveness of judicial protection in favor of the creditor (art. 139, IV). Unlike typical measures, atypical measures are covered by greater judicial discretion. Among the best-known examples are the seizure of debtor documents, such as driver’s licenses and passports, and the blocking of credit cards.

STJ: Parameters for the use of atypical executive measures

As these are measures without express legal provision, whose adoption depends on an analysis of the circumstances of the specific case, there has always been debate and uncertainty as to the criteria that would authorize their granting. In situations where the creditor requests, for example, that the debtor’s credit card be blocked, it is up to the judge to assess whether, given the stage of the proceedings, the attempts already made to satisfy the claim and the debtor’s specific situation, it is appropriate to authorize the measure.

Given the frequency with which these controversies reached the higher courts, in a recent judgment, the STJ established the following objective parameters, cumulatively, for the adoption of atypical executive measures:

I). The judge weighs up the principles of effective enforcement and the least onerous burden on the debtor;

(II). Adoption of atypical enforcement measures as a subsidiary to typical measures;

(III). Adequate justification for the decision, taking into account the specificities of the case; and

(IV). Compliance with the principles of adversarial proceedings, proportionality and reasonableness, including with regard to the duration of the atypical executive measure.

What it means in practice

With this ruling, the STJ is helping to reduce legal uncertainty in the application of atypical enforcement measures by Brazilian courts, by reinforcing their admissibility based on objective criteria. The decision also expands the range of alternatives available to creditors who have unsuccessfully exhausted typical measures to satisfy their credit.

Even so, the granting of these measures will continue to depend on a careful analysis of the specific case, taking into account factors such as the effectiveness of the measure and the possible burdens imposed on the debtor. As a rule, the adoption of atypical measures tends to be more frequent in advanced stages of enforcement, after traditional means have been frustrated.

The STJ’s precedent, however, opens up a new scenario to unblock thousands of foreclosures in which the creditor has been waiting for years for his claim to be satisfied, and this is probably the greatest of the advantages brought about by establishing such criteria, allowing for greater speed in ongoing foreclosures.

For more information on this subject, consult the Civil Litigation and Arbitration practice of Araújo e Policastro Advogados.