Jayme Petra de Mello Neto
Lawyer at Marcos Martins Advogados
According to article 831 of the New Code of Civil Procedure (NCPC), “the attachment must fall on as many assets as are sufficient to pay the updated principal, interest, costs and attorney’s fees”.
Under this article, it is understood that the judgment debtor must obtain some asset or several of them in order for attachment to take place, otherwise it will not occur.
The list of unseizable assets contained in article 833 of the NCPC does not include the overdraft limit, however, according to the judgment handed down on July 26, 2018, in case no. 0010662-87.2018.5.03.0000 (Writ of Mandamus – MS), there is the use of case law that demonstrates the unacceptability of seizure over this limit, “in verbis”:
ATTACHMENT – BACEN/JUD – OVERDRAFT LIMIT – UNACCEPTABLE. The blockage carried out on the overdraft limit released by the Bank cannot stand, because in addition to not complying with the exegesis of the BACEN/JUD Regulation, it also imposes constriction on credit that is not actually part of the debtor’s assets, also burdening him with the incidence of significant interest and financial charges and not complying with the provisions of article 805 of the NCPC. (TRT da 3.ª Região; PJe: 0010090-38.2014.5.03.0044 (AP); Available: 06/04/2018, DEJT/TRT3/Cad. Jud, Page 357; Judging Body: Second Chamber; Rapporteur: Sebastião Geraldo de Oliveira)
It can be concluded, therefore, that the provision of the overdraft limit by the Bank is not suitable for the phenomenon of attachment, related to the payment of labor debt, since the aforementioned limit does not make up the assets of the defendant, because if it did, he would have to pay the limit used to the Bank in the future, plus high interest and other charges.
