Post by account_disabled on Mar 12, 2024 23:49:33 GMT -6
The exception of article 3, item V, of Law 8,009/90, is only admitted when the guarantee is provided or reverts to the benefit of the family, which cannot be assumed when the mortgage guarantee is granted in favor of a business entity, even linked to the individual providing the real guarantee.
Reproduction Family assets cannot be seized if given as collateral by a partner of a debtor company
Based on this understanding, the 22nd Private Law Chamber of the São Paulo Court of Justice upheld a debtor's appeal and declared the family property pledged as collateral for the debt unseizable.
It appears from the records that the credit B2B Lead covered by the contract signed between the parties was not intended for the people who signed the guarantee. The credit, in reality, was directed to the debtor's company. Therefore, she maintained that her family's property could not have been seized. The arguments were accepted by the TJ-SP, by majority vote.
"It is necessary to recognize the mitigation of the principle of autonomy of the will, to the point that the renunciation of the unseizability of the family asset given as debt guarantee cannot prevail, insofar as protection is not only given to the debtor, but also to his family", said the rapporteur, judge Roberto Mac Cracken.
According to him, there was, in this case, a typical commercial relationship, which should only cover assets and interests of the legal entities involved: "The creditor company did not prove in the records that the transaction signed for business purposes with the constitution of a mortgage to guarantee the person's debt legal status was reverted to the benefit of the plaintiff or her family, the burden of proof being on the creditor".
Given the indisputability of the family asset, the absence of proof of the plaintiff's benefit and proof of her current residence in the property subject to the dispute, the judging panel understood that, by preserving the family asset, there is "indisputable prestige to the protection of family entity and the insurmountable principle of the dignity of the human person".
However, the third judge, judge Alberto Gosson, disagreed with the rapporteur. For him, the requirement to remove the real restriction on the property is not met and, therefore, he voted not to grant the appeal.