Considerations concerning the different extrajudicial implementation phases regarding the contracts governed by Law 9.514/97 with the amendments made by Law 13.465/2017 and its reflections on repossession proceedings (Suits)
May 5th, 2021, By Guilherme Andrade Zauli, Bachelor of Law by Pontifícia Universidade Católica de Minas Gerais – Campus Poços de Caldas. Graduate School in Civil Law by Universidade de São Paulo – Campus Ribeirão Preto. Lawyer and Real Estate Coordinator at Tortoro Madureira e Ragazzi Sociedade de Advogados.
Law Field: Civil; Procedural; Real Estate.
Abstract: This article results from empirical research arising from the analysis of several positions adopted by both the High Court of Justice of the State of São Paulo, and the Superior Court of Justice. The purpose is to address relevant issues regarding the extrajudicial procedure for the guarantee execution, especially regarding the distinction between the phases of property consolidation and extrajudicial auctions. After carefully analyzing each distinct phase, the reflection of eventual inconsistency will be approached in a later possession plea for the resumption of the ownership on behalf of the creditor.
Keywords: Fiduciary Sale – Real Estate – Distinction of Phases – Consolidation of Ownership – Auctions – Nullity – Possessory.
Summary: 1. Introduction – 2. Concept – 3. Distinction between the phases of extrajudicial proceedings for the execution of fiduciary guarantee – 3.1. Consolidation of ownership – 3.2. Performance of auctions required by law – 4. Process whereby a position contrary to the current legislation is adopted by courts – 4.1. Need for proof of damage due to the lack of notification about the auction dates – 5. Conclusion – 6. Bibliography.
At a time when Brazil is focused on recovering economic growth, it is especially relevant to analyze the procedures inherent to the Mortgage Loan System created by Law No. 9.514/97, which institutes the fiduciary sale of real estate.
Precisely because it enables pledging the real estate itself, which is the purpose of the sales agreement, as security for the loan, the modality under analysis has become the main source of private development for the real estate sector since it is a type of credit at low cost¹ (interest at around 1% per month), considering the existence of security interest.
It so happens that, as shown below, a serious factor has plagued the guarantee needed to maintain the low cost for this type of credit, that is, conflicting court decisions that differ from the current legislation, which leads to the dreaded legal uncertainty.
Although the relationship between legal certainty and low-interest rates is crystal clear, it is worth mentioning the speech of the Justice Luiz Fux at the Brazil Risk Reassessment Seminar, held by Fundação Getúlio Vargas (FGV) at the headquarters of the Federation of Industries of the State of Rio de Janeiro (Firjan) in November 2015: “The judicial branch can reduce Brazil’s Risk by providing foreign investors with legal certainty, which will also lead to economic risk mitigation”².
As its name suggests, the fiduciary sale means the acquisition of a certain asset that will serve as a trust, that is, a guarantee of the obligation assumed before the institution responsible for granting the credit.
Fiduciary sale is so important that its concept is doubly provided for in the national legal system: Article 1.361 of the Civil Code and Article 22 of Law No. 9.514/97.
Article 1.361, Civil Code:
“Article 1.361. The terminable property of a unique chattel that is transferred to the creditor by the debtor as a guarantee is considered fiduciary.”
Article 22 of Law No. 9.514/07:
“Article 22. The fiduciary sale regulated by this Law is the legal transaction by which the debtor, or settlor, transfers to the creditor, or trustee, the terminable property of the real estate as a guarantee.”
In both concepts, the lawmaker recommends the terminable transfer of property as a guarantee of the assumed obligation, which will become full only when the agreement is paid up.
At this point, the first prominent aspect arises, namely, the absence of full ownership of the debtor until there is full payment of the debt. This is the reason why encumbered properties with a security interest do not become part of the debtor’s equity for inheritance purposes or liability for various obligations. There is only equitable interest.
According to Professor Fábio Ulhoa Coelho, the fiduciary business can be analyzed as follows:
“Through this agreement, whose roots are in Roman law (Restiffe Neto, 1975:1), the creditor (trustee) becomes the holder of the terminable property and its indirect possessor, while the debtor (settlor) is invested in the condition of direct possessor and depositary (Civil Code, Articles 1.361, § 2, and 1.363). Once the obligation that the latter has to the former is fulfilled, the property is resolved: the person who was a debtor becomes the full and sole owner, and the one who was a creditor ceases to have any interest in it. However, if the obligation is not fulfilled, the creditor has an effective instrument to satisfy the credit. As the owner and indirect possessor of the asset that is the purpose of the secured fiduciary sale, the creditor may, pursuant to the law, obtain the consolidation of the property, sell it and pay it with the sale proceeds.”
Therefore, once the conceptual part about the fiduciary sale has been completed, we will proceed to the analysis of the various procedures for the extrajudicial execution of the guarantee in cases of nonperformance.
3. Distinction between the phases of extrajudicial proceedings for the execution of the fiduciary guarantee
Ordinarily, when judging actions to recover possession of the real estate given as a loan guarantee, even after the creditor takes possession of the real estate, the courts take judicial decisions that preclude repossession due to an alleged failure in the notification procedure about the auction dates.
Such decisions are the main purpose of this article, which aims at demonstrating the distinction between the extrajudicial execution phases (consolidation of ownership and auctions) and the scope of the subsequent effects in case of non-compliance with legal requirements.
3.1. Consolidation of ownership
Article 26 of Law 9.514/97 establishes that when the debtor is in arrears with the debt, he goes into default, and if it is not settled, the real estate ownership will be consolidated in favor of the fiduciary creditor.
Let us see:
“Article 26 of Law 9.514/97. When the debtor is in arrears with the debt, in whole or in part, and the settlor goes into default, the real estate ownership shall be consolidated in favor of the trustee, according to this article.”
The term “consolidation of ownership” arises from the fact that when the secured fiduciary sale is recorded with the real estate registration, the trustee becomes the legal owner of the real estate.
It so happens that such ownership does not become full since there is what the jurists call a terminable property, i.e., one that, in order to become full, is conditioned to a certain fact.
In cases of fiduciary sale, the conditioning fact refers to the full payment of the amount previously credited.
Once the payment is settled, the ownership is consolidated on behalf of the former debtor.
However, in the event of nonpayment of the obligations, the trustee will take possession of the real estate by recording the ownership of consolidation on his behalf.
As it gives rise to the acquisition of full ownership of the collateral for a debt, the ownership will only be consolidated upon compliance with certain statutory requirements.
This requirement is provided for in Article 26, Paragraph 1 of Law No. 9.514/97 and basically consists of giving personal notice to the debtor by means of the Register of Deeds (allowing for notifying via the Notary Public), so that within fifteen (15) days the overdue installment may be settled, as well as those due until the payment date, conventional interest, penalties and other contractual charges, legal charges, including taxes, condominium charges related to the real estate, in addition to collection and notice expenses.
If there is no timely purgation of the default, the consolidation of ownership on behalf of the trustee must be recorded after thirty days as of the expiration date of the credit period.
It is necessary to clarify that from this point on (recording consolidation of ownership) the property previously terminable on behalf of the creditor becomes full, thus making the possession exercised by the former debtor precarious.
In order to support this argument, Article 37-A of Law No. 9.514/97 establishes that from the consolidation of ownership until taking possession of the real estate on behalf of the fiduciary creditor, the debtor shall pay the monthly occupancy fee:
“Article 37-A. Law No. 9.514/97. The fiduciary debtor shall pay the fiduciary creditor, or whoever succeeds him, as a real estate occupancy fee, per month or fraction, an amount corresponding to one percent (1%) of the amount referred to in item VI or the Sole Paragraph of Article 24 of this Law, recorded and payable as of the date when the full ownership is vested in the fiduciary creditor until the date when he, or his successors, takes possession of the real estate.”
When the possession taken becomes precarious after the consolidation of ownership, the right of filing an action to recover possession immediately arises.
Considering this fact, the lawmaker not only guaranteed the right to file the possessory action but also ensured the preliminary repossession injunction on their behalf within sixty (60) days:
“Article 30. Law No. 9.514/97. It is guaranteed to the trustee, his assignee or successors, including the purchaser of the real estate by virtue of the public auction referred to in Paragraphs 1 and 2 of Article 27, the real estate repossession, which will be granted as a preliminary matter, for eviction within sixty days, provided that the consolidation of ownership on his behalf is proven, pursuant to Article 26.”
Therefore, the fact that the legal requirement for granting repossession on behalf of the fiduciary creditor is fulfilled solely when the consolidation of ownership is recorded on his behalf is indisputable.
Considering the legal rule, precisely in this sense, Justice Sá Duarte, judge-rapporteur of the 33rd Chamber of Private Law of the State of São Paulo, formed the following opinion:
“REPOSSESSION – Fiduciary Sale of Real Estate – Preliminary Injunction Granted – Decision considered correct – Right to possession arising from the consolidation of ownership of the real estate on behalf of the fiduciary creditor, a fact that precedes the auctions identified as irregular due to the absence of personal notice of the fiduciary debtors – Interlocutory appeal not granted.”³
3.2. Performance of auctions required by law
Continuing with the execution phase, after consolidating the ownership on behalf of the trustee, Law No. 9.514/97 requires two mandatory auctions in an attempt to sell the real estate.
“Article 27. Once the ownership is consolidated on his behalf, the trustee shall hold a public auction to sell the real estate, within thirty days as of the recording date referred to in Paragraph 7 of the previous article.”
This measure is an attempt by the lawmaker to enable the settlement of outstanding amounts referring to the contract previously entered into.
Therefore, the law requires that two mandatory public auctions are held in an attempt to sell the real estate.
In the first attempt, the real estate will be offered for the amount established in a specific clause at the date of execution of the contract.
In the second attempt, the amount will be that corresponding to the total debt, including expenses, insurance premiums, taxes, legal and condominium charges.
“Paragraph 1. If in the first public auction the highest bid offered is less than the real estate value, established in item VI and Sole Paragraph of Article 24 of this Law, the second auction will be held within fifteen days. (As amended by Law No. 13.465/2017)
Paragraph 2. In the second auction, the highest bid offered will be accepted, provided that it is equal to or greater than the value of the debt, expenses, insurance premiums, taxes, legal and condominium charges.”
According to Paragraph 4, Article 27 of Law No. 9.514/97, if the real estate is sold in any of the aforementioned auctions, any amount that remains on the existing debt will be fully transferred to the former debtor.
Such restitution guarantees that any damages for improvements or amounts that the debtor might have spent on the real estate are awarded to him, as well as prevents unjust enrichment by the creditor.
“Article 27, Paragraph 4 of Law No. 9.514/97. Within five days after selling the real estate in the auction, the creditor will deliver the remaining amount to the debtor, considering damages for improvements, net of debt, and expenses and charges related to in Paragraphs 2 and 3. This fact will be considered as a mutual release, not applying the provisions of the final part of Article 516 of the Civil Code.”
However, if there are no bidders in the mandatory auctions, or the value offered is not sufficient to settle the existing debts, the previously existing debt will be paid off, and the trustee will be discharged from repaying any amounts to the former debtor, according to Paragraph 5 of the aforementioned article.
“Article 27, Paragraph 5. Law No. 9.514/97. If, in the second auction, the highest bid offered is not equal to or greater than the value referred to in Paragraph 2, the debt will be paid off and the creditor discharged from the obligation referred to in Paragraph 4.”
It should be noted that in this second phase of extrajudicial proceedings for the execution of fiduciary guarantee, the legitimacy of the ownership already consolidated on behalf of the fiduciary creditor is no longer discussed. The sole aim is ensuring the debtor will receive any damages that remain from the debt.
As it gives rise to possible damages awarded to the fiduciary debtor, Law No. 13.465/2017 cautiously regulates the requirement of personal notice regarding the dates, times and locations of the mandatory auctions, also guaranteeing the preemptive right to eventually purchase the real estate.
Let us see:
“Article 27, Paragraph 2-A. Given the provisions of Paragraphs 1 and 2 of this Article, the dates, times and locations of the auctions will be notified to the debtor by means of correspondence sent to the addresses contained in the agreement, including the electronic mail. (As amended by Law No. 13.465/2017)
Paragraph 2-B. After recording the consolidation of ownership, so that the fiduciary real estate become the trustee’s property, and until the date of the second auction, the fiduciary debtor is assured the preemptive right to purchase the real estate for a price corresponding to the debt amount, added to the charges and expenses set forth in Paragraph 2 of this Article, to the amounts corresponding to the tax on the non-gratuitous inter vivos conveyance of real estate and the laudemium, if applicable, paid for the purpose of consolidating ownership, so that the fiduciary real estate becomes the trustee’s property, and to the expenses inherent in the collection and auction procedures, the fiduciary debtor being liable for paying the tax charges and expenses required for the new purchase of the real estate, referred to in this paragraph, including costs and fees. (As amended by Law No. 13.465/2017)”
Supporting the argument that the procedures for conducting the auctions in no way interfere with the full ownership inherent to the fiduciary creditor, the lawmaker uses the terms “preemptive right to purchase the real estate for a price corresponding…”.
In these terms, Justice Luis Fernando Nishi, judge-rapporteur of the 32nd Chamber of Private Law of the State of São Paulo, formed the following opinion:
“Interlocutory Appeal – Secured fiduciary sale – Real estate – Decision that suspended extrajudicial auctions due to the need for notice to acknowledge the designated act and the possibility of purging the default until the notice of purchase at the auction – Amendments to the Law No. 9.514/1997, promoted by Law No. 13.465/2017 – Limit for purging the default set forth in Paragraph 2-B of Article 27 of Law No. 9.514/1997 – Under Law No. 13.465/2017, after the consolidation of ownership, the debtor has only preemptive rights to purchase the property for a price corresponding to the debt amount, added to the charges and expenses expressly established – Filed an interlocutory appeal, and furthermore, acknowledged the auctions even before they were held – Suspension of undue extrajudicial proceedings for execution – APPEAL GRANTED.”⁴
In other words, with the consolidation of ownership and even before the auctions are held, all issues relating to ownership of the real estate have been resolved.
4. Process whereby courts adopt a position contrary to the current legislation
As explained in the previous topics, despite the distinction between the phases and their respective effects in the extrajudicial execution of the guarantee, the State Courts of Justice have issued decisions that are absolutely contrary to the rules in force.
Based on a gross misinterpretation of the judicial decisions made by the Superior Court of Justice, several possessory claims ruled by the regular consolidation of ownership on behalf of the creditor have been denied due to the possible failure in notifying debtors about the mandatory auction dates.
Court of Appeals of the State of São Paulo:
“APPEAL – Fiduciary sale – Repossession – Trustee aiming at repossessing the real estate purpose of the agreement – Consolidation of ownership of the disputed real estate on behalf of the trustee, as well as the unsuccessful attempt at out-of-court settlement of the real estate – Judgment for plaintiff – Hypothesis that the debtors were not personally notified as to the date, time and location of the extrajudicial auction – Compliance with the rules governing the consolidation of ownership to the trustee does not exempt the debtor’s personal notice to inform him of the auctions – Binding that finishes the basis of Article 39, II, of Law No. 9.514/97 Civil Code. Article 36 of Decree-Law No. 70/66 – Guarantee granted to the debtor to purge the default – Precedents of the Superior Court of Justice and of this Court – Legislative amendment in this regard, promoted by Law No. 13.465/17, which included Paragraph 2-A to Article 27 of Law No. 9.514/97 – Grant of the dismissed action – Decision reformed – APPEAL OF THE DEFENDANTS GRANTED.”⁵
It is verified that the decision above deals specifically with the repossession action filed by the fiduciary creditor after the regular consolidation of the ownership on his behalf.
However, despite the merits of the claim dealing exclusively with possession, in the case at matter, the respective Court is supported by a decision rendered in an action with absolutely different merits, in which the Superior Court of Justice, when judging an action for annulment of the auctions, recognizes the need for personally notifying the debtor about the location, date and time of the public auctions, let us see:
“Thus, the silence of the lawmaker on the mandatory personal notice to hold the auctions is far from being considered as an eloquent omission in the scope of Law No. 9,514/97. And this is why, incidentally, the fact that the creditor and the trustee are one in the system of the referred law is irrelevant. After all, as said, the main scope of the formality is to allow for the purging of the delay until the consummation of the executive process.
The decision of the Superior Court of Justice agrees with the same current of thought:
INTERNAL INTERLOCUTORY APPEAL ON SPECIAL APPEAL. CIVIL PROCEDURE. ACTION FOR ANNULMENT OF EXTRAJUDICIAL AUCTION. LAW No. 9,514/97. FIDUCIARY SALE OF REAL ESTATE. PERSONAL NOTIFICATION OF THE GUARANTEE DEBTOR. NECESSITY. SPECIFIC PRECEDENT. SPECIAL FEATURE PARTIALLY PROVIDED. 1. ‘Within the scope of Decree-Law No. 70/66, the precedents of the Superior Court of Justice have long been consolidated considering the need for personal notice of the debtor about the date of the extrajudicial auction, an understanding that applies to agreements governed by Law No. 9,514/97’ (Special Appeal No. 1447687/DF, Justice RICARDO VILLAS BÔAS CUEVA, THIRD PANEL, judged on August 21, 2014, State Court Register of September 8, 2014). 2. INTERNAL INTERLOCUTORY APPEAL” (Internal Interlocutory Appeal on Special Appeal No. 1367704/RS, Justice Paulo de Tarso Sanseverino, Third Panel, judged on August 04, 2015)”⁶
It should be noted that the decision of the case under analysis took place on December 13, 2018, i.e., after the enactment of Law 13.465/2017, which amends Article 39, II of Law No. 9.514/97, which allowed the subsidiary application of Decree-Law No. 70, of November 21, 1966.
The subsidiary application of the aforementioned Decree-Law supported the position adopted by courts in the sense that it was possible to purge the default until the moment the property was auctioned.
With the innovation brought by Law No. 13.465/2017, this possibility was restricted only to mortgage guarantee agreements.
Thus, contrary to the position adopted by the State Court of Justice, the moment to purge the default ends with the registration of the consolidation of ownership on behalf of the creditor, and not “until the executive proceeding is finished”.
In order to demonstrate that the different interpretation of the legal requirements does not occur in isolation, consider the different decision below in the same sense:
“FIDUCIARY SALE APPEAL – REPOSSESSION – Filing of the action by the financial institution aiming at the repossession of the real estate purpose of the agreement, after purchasing by the creditor in an extrajudicial auction. Hypothesis in which the debtors were not personally notified as to the date, time, and location of the extrajudicial auction. Notice by publication. Nullity of acts performed by the financial institution. Jurisprudential guidance in this regard, including by the Superior Court of Justice – Legislative amendment in this regard, promoted by Law No. 13.465/17, which included Paragraph 2-A to Article 27 of Law No. 9.514/97 – Grant of the dismissed action – Defendants’ appeal granted”⁷
Again, in the case of possessory action that has as a specific requirement the regular consolidation of ownership on behalf of the fiduciary creditor, there was a misinterpretation regarding the different phases of execution provided for in the specific legislation.
By delimiting the period in which it is possible to purge the default, the lawmaker clearly establishes the moment for discussion about any nullities that would enable the legitimate exercise of possession by the fiduciary debtor.
In other words, if there are no nullities in relation to the notice procedure to purge the default, the consolidation of the registered ownership on behalf of the creditor becomes legitimate and regular.
Therefore, denying the right to repossession would be considered as legal permission for maintenance of dispossession, given that the occupying party no longer exercises any ownership right upon the real estate.
Even in these exact terms, the Superior Court of Justice formed the following opinion:
“SFI – REAL ESTATE FINANCIAL SYSTEM. LAW No. 9.514/97. FIDUCIARY SALE OF REAL ESTATE. NONPAYMENT BY THE SETTLOR. CONSOLIDATION OF OWNERSHIP OF THE REAL ESTATE ON BEHALF OF THE TRUSTEE. EXTRAJUDICIAL AUCTION. SUSPENSION. IRREGULARITY IN THE NOTICE. THE CREDITOR’S INTENTION TO OBTAIN REPOSSESSION PRIOR TO THE AUCTION, PROVIDED BY ARTICLE 27 OF LAW No. 9.514/97. POSSIBILITY. SYSTEMATIC INTERPRETATION OF THE LAW.
1. The provisions of Law No. 9.514/97, notably its Articles 26, 27, 30, and 37-A, have a double interpretation: it is possible to say, on the one hand, that the trustee’s right to repossess the purchased real estate automatically results from the consolidation of its ownership in the event of nonpayment; or it is possible to affirm that said possessory right only arises from the performance of the auctions referred to in Article 27 of Law No. 9.514/97.
2. The systematic interpretation of a Law requires seeking, not only in its internal structure but in the legal sense of the institutes it regulates, the appropriate model for its application. If the trustee’s possession of the real estate is derived from an agreement executed with the trustee, the termination of the contract in which it is founded makes it illegitimate, and it is possible to qualify his permanence in the real estate with usurpation.
3. The consolidation of ownership of the real estate on behalf of the creditor grants him the right to possession. Denying it would imply authorizing the settlor to remain in real estate that does not belong to him, without payment of consideration, to the extent that Article 37-A of Law No. 9.514/97 establishes the payment of the occupancy fee only after the extrajudicial auctions have been held. If the auctions are suspended, as occurred in the hypothesis of the case, the gap cannot imply the imposition on the trustee, of a loss that he did not cause.
4. Special appeal not granted.”⁸
Analyzing the opinion above, it is unequivocally proven that the consolidation of ownership on behalf of the trustee is the only requirement for granting the possessory protection, and it may be granted even before the mandatory auctions are held.
If it is possible to grant repossession even before the auctions are held, there is no way to conclude that any nullity regarding the notification about them would be able to prevent the possessory right of the trustee.
Therefore, this position supports the need for distinction and absolute independence among the execution phases in the extrajudicial proceeding.
4.1. Need for proof of damage due to the lack of notification about the auction dates
Having demonstrated the absence of harmfulness in relation to the consolidation of ownership on behalf of the trustee, it is questioned what would be the practical effect of a possible nullity of notice regarding the auction dates, given the legal prohibition brought by the Sole Paragraph of Article 30 of the Law No. 9.514/97.
“Article 30. The trustee, its assignee or successors, including the purchaser of the property, are guaranteed by the public auction referred to in Paragraphs 1 and 2 of Article 27, the repossession of the real estate, which will be granted in limine, for eviction within sixty days, provided that the consolidation of ownership on his behalf is proven, in accordance with the provisions of Article 26.
Sole Paragraph. In real estate loan transactions, including the transaction of the ‘Minha Casa, Minha Vida’ Program, established by Law No. 11.977, of July 7, 2009, with resources arising from the payment of quotas in the Residential Lease Fund (locally FAR), once the consolidation of the fiduciary ownership is registered, the lawsuits that have as their purpose controversies over the conditions agreed upon in the agreement or the procedural requirements for collection and auction, except for the requirement of notice to the settlor, will be resolved in damages and will not prevent the repossession mentioned in this article. (As amended by Law No. 13.465/2017)”
Once again, reinforcing the thesis that after the consolidation is registered, the discussion about the fullness of the ownership transferred to the creditor comes to an end, the lawmaker establishes that any lawsuits that have as their purpose controversies about the conditions agreed upon in the agreement or the procedural requirements will be resolved in an award of damages, except for the lawsuits that deal with the requirement of notice to the settlor.
Analyzing the result produced by the regular notification of the debtor about the auction dates, it may be concluded that such measure only guarantees the expectation of the right to repurchase the real estate.
By guaranteeing the preemptive right to purchase the real estate, the law assures the debtor the priority to repurchase the real estate, provided that the exact conditions for eventual purchase in public auction are observed.
Under penalty of being deemed as a delaying maneuver, it would be up to the party to proceed with the immediate consignment of the real estate’s settling amounts when filing for such annulment.
If the sufficiency of funds for this is not proven, the inexistence of any loss to the debtor would remain proven.
In this regard, the Bandeirante Court of Justice has established an understanding recently:
“Appeal – fiduciary sale – real estate – annulment of EXTRAJUDICIAL PROCEEDING – notification to purge the default by publication – REGULATE CONSTITUTION IN DEFAULT – ABSENCE OF PERSONAL NOTICE TO THE DEBTORS ABOUT EXTRAJUDICIAL AUCTIONS – – DEBTORS WHO WERE AWARE OF THE DEBT AND THAT, AT NO TIME, EXPRESSED ACTUAL INTENTION TO SETTLE THE DEBT – ABSENCE OF LOSSES – JUDGMENT FOR PLAINTIFF REVERSED – APPEAL GRANTED.”⁹
Thus, precisely because it depends on proof of loss, the lawmaker wisely excluded the possibility of resolution by awarding damages, the debtor being sufficient to demonstrate, by means of full allocation of the auction value, the effective economic capacity to exercise the preemptive right, so that the Judiciary Branch determines the nullity of any sale at auction to third parties.
Considering all the arguments set out above, as well as the relevant social role in relation to private financing for the acquisition of real estate, reflecting on the feasibility of housing for a large part of the Brazilian population, the topic addressed deserves urgent attention from the national courts, considering that by producing decisions contrary to the provisions of the law, the legal uncertainty responsible for increasing the cost of credit made available to the population, in general, is fostered.
Therefore, the need for recognition of the distinction and independence among the phases of extrajudicial execution of the guarantee provided for in agreements governed by Law No. 9.514/97 is imperative, as well as the subsequent effects of possible annulment when it comes to the debtor’s notice of the date, location and hours of auctions required by law.
AGENCIA BRASIL, Segurança jurídica atrai investimentos e reduz Risco Brasil, diz Fux (Legal certainty attracts investments and reduces Brazil’s Risk, says Fux). Available at: <http://agenciabrasil.ebc.com.br/economia/noticia/2015-11/seguranca-juridica-atrai-investimentos-e-reduz-risco-brasil-diz-fux>. Accessed on March 11, 2019. BANCO CENTRAL DO BRASIL, Pessoa Física – Financiamento imobiliário com taxas de mercado (Individual Taxpayer – Mortgage loan at a market rate of interest). Available at: <https://www.bcb.gov.br/estatisticas/reporttxjuros/?path=conteudo%2Ftxcred%2FReports%2FTaxasCredito-Consolidadas-porTaxasAnuais-ModalidadeMensal.rdl&nome=Pessoa%20F%C3%ADsica%20-%20Financiamento%20imobili%C3%A1rio%20com%20taxas%20de%20mercado¶metros=tipopessoa:1;modalidade:903;encargo:101&exibeparametros=false&exibe_paginacao=false>. Accessed on March 11, 2019.
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