Priscilla Folgosi Castanha
Lawyer at Marcos Martins Advogados
In defending the interests of one of its clients, the Marcos Martins Law Firm obtained a relevant decision in the São Paulo State Court of Justice. An action for enforcement of an extrajudicial title was brought against a debtor who had no assets capable of settling a debt of approximately R$2.5 million reais. In view of the negative results of the attempts to block assets through conventional systems (Bacenjud, Renajud and Infojud), in clear disagreement with the legal provisions in force, especially the fundamental constitutional principles, the Plaintiff made a serious attempt to seize passports and driver’s licenses (CNH), and to ask credit card companies to cancel the debtor’s credit cards.
In the defendant’s defense, the law firm was able to demonstrate that the measure requested involved the practice of burdensome and exceptional measures, with the sole purpose of coercion and which, in short, would not bring any practical benefit to the execution in progress, since they would not serve the search for the desired assets. In this way, it was demonstrated that the measures requested, with a mere coercive intent, were neither reasonable nor proportionate, as well as implying a violation of constitutionally guaranteed rights, especially the right to come and go (art. 5, XV and LIV of the Federal Constitution).
In addition, the challenge was able to demonstrate that even though the system of the new Code of Civil Procedure has allowed the imposition of atypical coercive measures, the Federal Constitution is still the structural basis of the legal system, and it absolutely protects the right to come and go.
The São Paulo Court of Justice accepted the allegations presented by the defendant on appeal and held that the suspension of driver’s licenses, passports and credit cards are not measures capable of inducing the defendant to pay his debt, and that “what is revealed is the penal nature of the measures, due to non-payment of the debt and failure to locate assets, and in this step, there is no legal support for the applicability of this sanction”, also considering that the legal system does not provide for the application of a sanction in the event of non-payment of debt.
In this way, the respectable position adopted is in line with current legislation and the case law of the Higher Courts, and does not merit any kind of repair.
