Fábio Silveira Bueno Bianco
Lawyer at Marcos Martins Advogados
The purpose of this article is to investigate the appropriateness, or not, of refunding the installments paid in the event of default on loan agreements backed by an adjective pact for the fiduciary alienation of real estate, especially in light of the apparently conflicting provisions of Law 9.514/97 and article 53 of the Consumer Protection Code. Article 53 of the Consumer Defense Code provides that:
Article 53. In contracts for the purchase and sale of movable or immovable property for payment in installments, as well as in fiduciary transfers of collateral, clauses that establish the total loss of the installments paid for the benefit of the creditor who, due to default, requests the termination of the contract and the repossession of the product sold are considered null and void. (emphasis added)
Well then, the main objective of article 53 is to prevent illicit enrichment. Commenting on this article, Rizzatto Nunes ponders that “it is unacceptable to think that someone acquires a good for a certain price, pays part of it – sometimes a large part – and, because he cannot pay more, is left without the good and without the money he advanced” (NUNES, 2005, p. 590).
However, in fiduciary alienation, with the transfer of resolvable ownership to the fiduciary creditor and the rapid extrajudicial mechanisms for enforcing the guarantee, in the event of default, the situation described above often occurs.
According to Law No. 9.514/97, which regulates the Fiduciary Sale of Real Estate, if the fiduciary creditor is successful in selling the property sold as fiduciary collateral at one of the extrajudicial auctions, it must return only the amount that exceeds the payment of the debt and other legal increases (§4 of article 27). In some cases, the fiduciary creditor may offer his own credit as a bid and auction or adjudicate the asset for the amount of the debt at a second auction. In this case, considering that there is no judicial control of the expropriatory act, nor is there any legal guidance as to the possible vile price of this auction, there will certainly be no money left over.
Likewise, apparently contrary to the prohibition of the Consumer Defense Code, §5 of article 27 of Law 9.514/97 provides for the fiduciary creditor to be exonerated from returning the excess value if the property is not sold at the extrajudicial auctions. Thus, once again, the fiduciary alienation law’s procedure supposedly contradicts the provision prohibiting the loss of paid installments.
There is, therefore, no provision in Law 9.514/97 that obliges the fiduciary creditor to return the installments paid or part of them. On the contrary, the legal text provides for the creditor to be released from the obligation to return the surplus. As noted by the jurists Paulo Restiffe Neto and Paulo Sérgio Restiffe, §4 of article 27 expressly mentions “reciprocal discharge”, making it clear and evident that the return should only be of the higher amount collected and not of part of the installments paid, in accordance with consumer legislation (RESTIFFE NETO, RESTIFFE, 2009, p. 115).
Article 53 of the Consumer Protection Code, in turn, expressly mentions fiduciary alienation, and it is certain that the application of the Consumer Protection Code to financial institutions is a settled matter in the Superior Court of Justice, which has a summated understanding to the effect that it is fully applicable (Precedent 297).
That said, it is necessary to investigate whether there really is an apparent contradiction between the provisions of article 53 and the extrajudicial procedures for the fiduciary sale of real estate.
For Melhim Namem Chalhub, the provisions of Law 9.514/97 are consistent with the prohibition of the Consumer Protection Code, considering the nature of the loan agreement (article 586 of the Civil Code) and the provision for the return of the amounts left over when auctions are held (CHALHUB, 2006, p. 334).
In Chalhub’s line of thought, the reasoning for the solution must also take into account the rules of hermeneutics of the rules governing the matter. This is because the law that established the fiduciary alienation of real estate is subsequent to Law 8.078/90, which established the Consumer Defense Code.
It should also be borne in mind that the fiduciary alienation law is special and the Consumer Defense Code, in the case of article 53, is a general rule (CHALHUB, 2006, p. 327):
On the other hand, in relation to special laws such as, for example, Law 9.514/97, which instituted the fiduciary alienation of real estate, the CDC is a general law, and should be seen from the perspective of the principles of equity and good faith, which apply to any contractual relationship and not from the perspective of a particular rule on a particular type of contract.
As such, Law 9.514/97, being a special law insofar as it regulates a specific legal transaction, must prevail over the Consumer Defense Code, which, in this respect, only lends the general principles of equity and good faith, applicable to all contracts.
Corroborating this understanding, Nelson Nery Júnior, commenting on article 53, teaches that the legal command of the Consumer Protection Code synthesized the application of the principles of ethics, good faith, equity and balance in relation to situations of contractual termination for default (NERY JÚNIOR, 2011, p. 638).
In fact, although the legal reasoning behind applying only the Consumer Protection Code in a general and principled manner, with the consequent total preservation of the specifics of extrajudicial enforcement provided for in Law 9.514/97, seems to us to be unquestionable, this solution does not solve all the problems in practice.
The fact is that because there is no legal provision or any guide as to the so-called vile price for holding the second extrajudicial auction[1], it is not uncommon for properties to be auctioned off by the fiduciary creditors themselves and, after all charges have been deducted, no amount is left over. In this case, the debtor will lose all the installments paid and the property, a situation which is ruled out by article 53 of the Consumer Protection Code.
Similarly, injustices can occur when there are no interested parties in buying the property sold at the second auction, in which case the fiduciary creditor will keep the property and will be released from the obligation to return any difference, declaring the debt extinguished, with reciprocal discharge.
Paulo Restiffe Neto and Paulo Sérgio Restiffe propose a solution that follows the line that there would be a need to determine, through calculations, any need for reimbursement of amounts paid.
Along these lines, the interpretation must be congruent, and must always benefit the consumer and prevent the creditor from being unjustly enriched. Let’s look at the conclusion (RESTIFFE NETO, RESTIFFE, 2009, p. 116):
That is why the full calculation of values is always appropriate in any post-auction situation. The ex lege extinction of the fiduciary’s debt is not reciprocated by the ex lege extinction of his right to receive any surplus: neither total return, nor total loss; only partial return of any surplus found.
Rizzatto Nunes also concludes that a case-by-case investigation is necessary, due to the various peculiarities involved, using the method of systematic logical interpretation, invoking the principles of good faith and contractual balance, the principle of contractual equivalence, objective good faith as a general clause and equity (NUNES, 2005, p. 594).
Thus, even considering the different points of view, it is possible to see that there is a certain consensus among the Doctors surveyed to the effect that article 53 of the Consumer Protection Code does apply to the institute of fiduciary alienation of real estate, as a general rule of distribution of justice, preserving as valid, however, the swift and effective procedures provided for in Law 9.514/97.
With this in mind, it seems to us that an isolated analysis is required on a case-by-case basis. In the first instance, it will be necessary to investigate whether the pact adding to the sale in guarantee was signed in the context of a consumer relationship (supplier and consumer); and in the second, whether there has actually been a mitigation of the applicable principles capable of authorizing the imposition on the fiduciary creditor to return part of the installments he has received and not just the amount left over from the auction.
REFERENCES
ALVES, José Carlos Moreira. Da Alienação Fiduciária em Garantia. São Paulo: Saraiva, 1973.
BRAZIL (Presidency of the Republic). Law No. 9.514 of November 20, 1997. Available at: <HTTP://www.planalto.gov.br/ccivil_03/leis/L9514.htm>. Accessed on: May 3, 2013.
CHALHUB, Malhim Namem. Fiduciary Business. 3. ed. Rio de Janeiro: Renovar, 2006.
DINIZ, Maria Helena. Curso de Direito Civil Brasileiro. v. IV. 18. ed. São Paulo: Saraiva, 2002.
FILOMENO, José Geraldo Brito. Manual of Consumer Rights. 8. ed. São Paulo: Atlas, 2005.
FRAZOLIN, Cláudio José, et al. Direito Imobiliário Brasileiro. São Paulo: Quartier Latin do Brasil, 2011.
GRINOVER, Ada Pellegrini, et al. Código Brasileiro de Defesa do Consumidor. v. I. 10. ed. Rio de Janeiro:Forense, 2011.
NUNES, Rizzatto. Comentários ao Código de Defesa do Consumidor. 2. ed. São Paulo: Saraiva, 2005.
RESTIFFE NETO, Paulo; RESTIFFE, Paulo Sérgio. Fiduciary Property of Real Estate. São Paulo: Malheiros, 2009.
[1] O preço mínimo da venda do imóvel alienado fiduciariamente no segundo leilão está estipulado pelo parágrafo segundo, do artigo 27, que prevê: “No segundo leilão, será aceito o maior lance oferecido, desde que igual ou superior ao valor da dívida, das despesas, dos prêmios de seguro, dos encargos legais, inclusive tributos, e das contribuições condominiais.”
