The Superior Court of Justice (STJ) unanimously ruled that a property used as a family home can be seized if there is evidence of fraud against creditors, even without formal registration of the mortgage.
The 3rd Panel of the STJ, chaired by Justice Nancy Andrighi, analyzed a case in which the debtor offered his property as collateral in a loan agreement, but did not register the mortgage. Subsequently, the property was transferred to a friend of the debtor in an act considered fraudulent by the creditors, with the apparent aim of avoiding payment of the debt.
The Rio Grande do Sul Court of Justice had already recognized the sale of the property as fraudulent and authorized the seizure of the property, even though it was used as a family home. In her decision, the Justice clarified that, despite the legal protection of the family home, this guarantee does not apply when there is evidence of fraud.
With this decision, the STJ reaffirms that the practice of fraud against creditors rules out the protection of the family home, especially when the property is offered as collateral for a debt. The court thus reinforced that seizure cannot be used to protect acts with the deliberate intention of frustrating financial obligations.
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