Priscilla Folgosi
Lawyer at Marcos Martins Advogados
On December 11, 2018, the Third Panel of the Superior Court of Justice (STJ) unanimously decided that the administration fee and the credit risk fee included in housing loan contracts signed by Caixa Econômica Federal are due if there is an express provision in the contract, and there is no need to speak of abusive charging.
The Rapporteur of Special Appeal No. 1.568.368 – SP, Justice Nancy Andrighi, pointed out that the collection of these fees is not subject to the provisions of the Consumer Protection Code, as alleged by the appellant, since Caixa Econômica Federal – CEF is a public company, with legal personality under private law, and is covered by a national policy that aims to set the rules and remuneration values of the operating agent and financial agents.
Therefore, in view of the need for technical resolutions on the actions of financial agents, Normative Resolution 298/98 was issued by the FGTS Board of Trustees, which authorizes the charging of management fees and credit risk fees in housing contracts.
It is important to remember that the contract must expressly provide for such charges, under penalty of nullity, since failure to inform the consumer could lead to the recognition of contractual unfairness.
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STJ. SPECIAL APPEAL No. 1.568.368 – SP (2015/0276467-3). Rapporteur: Justice Nancy Andrighi. Third Panel. DJ.: 13.12.2018
