Vanessa Salem Eid
Lawyer at Marcos Martins Advogados
The judicial enforcement process has been constantly updated with the application of new technologies, such as new means of locating debtors’ assets.
The law and technology, when they go hand in hand, increase the chances of satisfying the credit sought by the creditor. Among some of the most popular judicial measures are the search for motor vehicles, through the Renajud system, the search for assets and income tax returns, through the Infojud system and, lastly and most popular of all, the Sisbajud system (formerly known as “Bacenjud), which connects the courts to the Central Bank and financial institutions, to speed up the request for information and the sending of court orders to block assets from the National Financial System, via the internet.
Although the justice system is keeping up with the times, when it comes to technology in the search for means to satisfy credit, it is essential that creditors, through their lawyers, carry out a prior asset search on behalf of debtors before filing lawsuits to satisfy their credit.
With the current enactment of Law 14.195/21, prior searches have become more relevant, given the changes introduced by that law which have aggravated the risk of intercurrent prescription. Before the reform, article 921, paragraph 1 of the Code of Civil Procedure stipulated that the period for interlocutory limitation began one year after the suspension of enforcement. Under the new wording of the article, intercurrent limitation begins to run one year after the first unsuccessful attempt to locate the debtor or assets that can be seized.
If the debtor or attachable assets are not located, the execution must be suspended for a maximum period of one year and only once, in accordance with paragraphs 1 and 4 of article 921 of the CPC. Legal practitioners need to be aware of the fact that the stay of execution does not occur automatically and concomitantly with the start of the inter-current limitation period, which, as we have seen, occurs with the knowledge of the first unsuccessful attempt to locate the debtor or attachable assets.
Therefore, as the suspension does not make the time limit retroactive (the count ceases until the end of the suspension), it will be necessary to take into account, in the total calculation of the period of intercurrent limitation, the time elapsed between the initial term provided for in §4 of the aforementioned article and the decision determining the suspension of enforcement.
Once the one-year suspension period has elapsed, the case will be closed if no progress has been made in the search for assets or the whereabouts of the debtor, but it can be closed again at any time if assets are found that can be seized. Detail: once the one-year suspension has expired, the period of interlocutory limitation resumes where it left off, even if the case is closed.
Only the actual service of summons on the debtor or the seizure of attachable assets causes the interruption of the intercurrent limitation period. The command of §4-A of art. 921 brings a rule similar to that set out in §§1 to 4 of art. 240 of the CPC. It is a kind of “stimulus” to the creditor’s proactivity by stopping the computation of the period of interlocutory limitation “for the time necessary to serve the debtor, as well as for the formalities of the asset seizure, if necessary, provided that the creditor complies with the deadlines provided for in the procedural law or set by the judge”. The analysis of these circumstances is not simple and will open up space for the debtor to question the non-counting of the inter-current limitation period during the “time necessary” to comply with the steps set out in §4-A.
In truth, the word of the day for those seeking to satisfy a claim is: planning. What was already necessary has now become essential when it comes to defining each step to be taken, especially with regard to the prior search for the debtor’s address and, above all, assets that can be seized prior to the filing of the lawsuit in order to increase the chances of success in the enforcement of judgments and execution proceedings.
Marcos e Martins Advogados specializes in business law and, even before the aforementioned law was enacted, was already active in the study of prior decision-making and asset searches on behalf of debtors.
