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    The trial of Theme 1,095 and its possible consequences for consumers

    Guilherme Zauli is a specialist in Real Estate Law at Tortoro, Madureira e Ragazzi Advogados.

    Due to the crisis brought on by the COVID-19 pandemic, the increase in default rates was inevitable, leading to an increase in the cost of credit, a scenario also faced by the real estate market.

    Analyzing the trajectory of the SELIC it is possible to see a significant increase during the period from March 2021, when the percentage was 2% a year, to the 10.75% a year currently in practice.

    Since it is considered the economy’s basic interest rate, SELIC is directly related to the increase in the cost of credit, impacting the financial lives of all Brazilians.

    In this scenario it has become inevitable that the cost of home loans has become more expensive, rising from an average annual interest rate of 6.96% almost a year ago to 9.33%, representing an increase of 2.37%.

    However, the cost of credit is not only linked to economic factors; other external factors, just as important, present direct interference in the cost and also in the viability of offering certain financial products to the population.
    With regard to the world of Law, the feared legal uncertainty plays a major role in contributing to the increase in the cost of credit.

    It is worth mentioning, as an example, the understanding established by the Judicial Branch regarding the lack of effectiveness of the mortgage guarantee signed between the developer and the financial agent, duly registered in the real estate registry, in relation to the buyer of the property (Precedent No. 308 of the Superior Court of Justice).

    Despite the intention of protecting the consumer, the sedimentation of the understanding in question has had the opposite effect for most consumers, since with the weakening of the guarantee, the cost of credit has increased, given the higher risk of the business, making it unfeasible for the lower income population to have access to loans.

    Aiming once again to expand the scope of credit, with the advent of law 9,514/97, to replace the weakened mortgage guarantee, the financial sector began to offer the possibility of real estate financing with a fiduciary guarantee.

    This modality foresees the release of values using the property itself, or another property that the consumer may own, as collateral.

    Until there is full compliance with the contract, the resoluble ownership of the property is transferred to the creditor as a guarantee of the obligation undertaken.

    This type of guarantee has characteristics capable of almost completely minimizing the risks of possible default, among which, the express provision that in case of non-payment of the contract, any amounts paid will be returned to the consumer only in the event that the property is sold in one of the two auctions required by law, a scenario in which if the auction amount exceeds the debt amount, such surplus will be refunded by the financial institution to the borrower.

    If this were not the case, in the hypothesis that the financial institution would be obliged to proceed with the restitution of values in favor of the debtor, without the sale of the property in the auctions required by law, the institution, even without having received the totality of the credit granted, would be compelled to have the financial liquidity to, in exchange, adjudicate the property initially offered as a guarantee for the debt.

    It is worth pointing out that the administration of real estate is not the core activity of any financial institution, which entails costs inherent to the collection of taxes, payment of condominiums, and urgent construction and renovation work.

    The possible incidence of the Consumer Defense Code in contracts guaranteed by chattel mortgage would have the exact consequence explained above, which is the obligation to refund the values paid in case of default by the debtor.

    Such trial is due to the fact that article 53 of the CDC provides that “in contracts for the purchase and sale of furniture or real estate by means of payment in installments, as well as in fiduciary sales in guarantee, clauses that establish the total loss of the installments paid in benefit of the creditor that, due to default, pleads for the termination of the contract and the repossession of the product sold, are considered null and void.

    However, important considerations should be noted.

    Contrary to what the Consumer Code establishes, the impossibility of restitution of values paid by the debtor does not derive from a contractual clause, but from specific legislation, namely law 9,514/97.

    In addition, another fact with an understanding already established by the State Courts of Justice refers to the principle of specificity of legal rules, which determines that the special rule prevails over the general one.

    Thus, if there is specific legislation regulating the fiduciary guarantee, a more comprehensive legislation (such as the Consumer Defense Code) could not be used to challenge it.

    Finally, the Law of Introduction to the Rules of Brazilian Law (LINDB) expressly foresees in its article 2 that “a subsequent law revokes a previous law when it expressly so states, when it is incompatible with it, or when it entirely regulates the matter covered by the previous law.

    Therefore, as the law that institutes and regulates the fiduciary guarantee (1997) is subsequent to the Consumer Defense Code (1991), once again the impossibility of intervention by the Judicial Branch to determine those financial institutions start refunding values eventually paid by their consumers in the event of default is demonstrated, with the exception of the hypothesis already foreseen in law 9,514/97.

    If the Judicial Branch finds otherwise on the occasion of trial of Theme 1,095, the Judicial Branch, to the detriment of most consumers who are up to date with their contractual obligations, will benefit the defaulting parties, who will be entitled to the refund of amounts, which initially was not provided for in the contract nor accepted by the legislation. This was not initially foreseen in the contract, nor accepted by the legislation, therefore configurable as absolute legal insecurity capable of negatively impacting the cost of the credit made available to the entire population.

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