Ana Júlia Moraes and Davi Gonçalves
Lawyers from Marcos Martins Advogados
In a session held on October 19, 2022, the Special Court of the STJ concluded the judgment of the Incident of Review of Theme 677 by deciding, by a majority of votes, that the debtor who chooses to judicially discuss amounts charged in execution of a judgment will continue to be obliged to pay the late payment charges provided for in the original contract, even after depositing in court the full or partial amount charged by the creditor.
These charges will be computed from the date of the court deposit and will continue to apply until the end of the legal dispute over the amount sought by the creditor.
In practice, if the debtor chooses to contest the amount charged in court, the initial deposit will be used to reduce the debt and will no longer extinguish the debtor’s obligation, as was the case until then. From the date of the deposit and as long as the process of disputing the amount owed continues, the original charges of the contract (such as fines and interest as agreed in the original obligation) will continue to apply. A final settlement will only be made once the debtor’s challenge has been finally decided.
To this amount will also be added the interest and monetary correction already levied on the amount deposited, which will be borne by the financial institution in which the amount is deposited.
The new understanding established by the Court alters the position that had prevailed since 2014, ending the debtor’s obligation with the deposit of the amount charged, even if the debtor challenged the amounts sought by the creditor and the discussion dragged on until the higher courts.
It is worth noting that this decision is still awaiting publication and may be appealed. If it is upheld, the decision will also apply to proceedings that are already underway, even if a guarantee has been provided in court.
In this sense, a careful analysis of the risk of a significant increase in the final amount to be paid is recommended and, depending on the case, seeking an amicable settlement may be the best course of action for the debtor.
Marcos Martins Advogados is attentive to new legislation and case law in order to clarify any doubts companies may have.
