SUPREMACIA DAS NORMAS
CONSTITUIÇÃO FEDERAL DO BRASIL
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sábado, 11 de outubro de 2025
MINDD - DEFENDA SEUS DIREITOS: DEFESA DO CONSUMIDOR HIPERENDIVIDADO: STJ CONFLITO DE COMPETÊNCIA CC 193.066 Só a Justiça Comum pode julgar ações de superendividamento previstas na Lei 14.181/2021 - Integra do Acórdão https://vitimasfalsoscondominios.blogspot.com/2025/10/defesa-do-consumidor-hiperendividado.html
SUPREMACY OF NORMS
FEDERAL CONSTITUTION OF BRAZIL
Translated by GEMINI AI
Observation by GEMINI AI: Please note that this is a literal translation of the judgment. Legal documents have very specific terminology and cultural nuances that may be difficult to translate perfectly without a professional adaptation to the legal system of the target country.
Decision
SUPERIOR COURT OF JUSTICE
CONFLICT OF JURISDICTION No. 193.066 - DF (2022/0362595-2) REPORTING JUSTICE:
MINISTER MARCO BUZZI
PARTY RAISING THE CONFLICT: JUDGE OF THE CIVIL BANKRUPTCIES, JUDICIAL
RECOVERIES, CIVIL INSOLVENCY AND BUSINESS LITIGATION COURT OF THE FEDERAL
DISTRICT RESPONDENT PARTY: FEDERAL JUDGE OF THE ADJUNCT SPECIAL
CRIMINAL COURT TO THE 8TH COURT OF BRASÍLIA - SJ/DF
INTERESTED PARTY: ELIAS EZEQUIEL DOS SANTOS REPRESENTED BY: MARIA DE
JESUS RODRIGUES SALES - CURATOR LAWYER: DEISEMIR COSTA DA SILVA - DF060830
INTERESTED PARTY: CAIXA ECONÔMICA FEDERAL INTERESTED PARTY: BRB BANCO DE BRASILIA SA INTERESTED PARTY: CARTÃO BRB S/A INTERESTED PARTY: BANCO PAN S.A. INTERESTED PARTY: BANCO SANTANDER (BRASIL) S.A.
RULING SUMMARY
CONFLICT OF JURISDICTION - CONSUMER DEFENSE CODE - DEBT RESTRUCTURING
ACTION - OVER-INDEBTEDNESS - CONCURRENCE OF CREDITORS PROVIDED FOR IN
ARTICLES 104-A, B, AND C, OF THE CDC, AS AMENDED BY LAW 14.181/21 - DEFENDANT
PARTY COMPOSED OF VARIOUS BANKING CREDITORS, INCLUDING CAIXA ECONÔMICA
FEDERAL - EXCEPTION TO THE JURISDICTION RULE PROVIDED IN ARTICLE 109, I, OF
THE CF/88 - INTERPRETATION BY THE HONORABLE SUPREME FEDERAL COURT DEFINED IN GENERAL REPERCUSSION - DECLARATION OF JURISDICTION OF THE COMMON COURT OF THE FEDERAL DISTRICT.
1. The Superior Court of Justice has jurisdiction to hear and process the present incident, as it presents a controversy regarding the exercise of jurisdiction between courts linked to different tribunals, under the terms of Article 105, I, "d", of the Federal Constitution.
2. The underlying discussion in the conflict consists of declaring the competent court to process and judge a debt restructuring action arising from consumer over-indebtedness, in which, in addition to other private financial institutions, Caixa Econômica Federal is a party.
3. The amendment made to the Consumer Defense Code, through legal norm No. 14.181/2021, of July 1, 2021, filled a legislative gap in order to offer individuals in a situation of vulnerability (over-indebtedness) the possibility, before their creditors, to renegotiate, restructure, and finally, fulfill their contractual/financial obligations.
4. It is up to the common state and/or district courts to process and judge demands arising from debt restructuring actions due to over-indebtedness - even if there is an interest from a federal entity - because the interpretation of Article 109, I, of the supreme text, must be teleological in order to encompass, in the exception of federal court jurisdiction, cases where there is a concurrence of creditors.
5. Conflict known to declare the jurisdiction of the Hon. common court of the Federal District and Territories to process and judge the debt restructuring action due to over-indebtedness, recommending to the respective court, given the delicate health condition of the interested party, the utmost brevity in the examination of the case.
JUDGMENT
Having seen, reported, and discussed the records in which the above parties are involved, the
Ministers of the Second Section of the Superior Court of Justice, the Second Section, unanimously, acknowledged the conflict to declare the jurisdiction of the common court of the Federal District and Territories to process and judge the debt restructuring action due to over-indebtedness, in accordance with the vote of the Hon. Reporting Justice. The Hon. Justices Marco Aurélio Bellizze, Moura Ribeiro, Raul Araújo, Paulo de Tarso Sanseverino, Maria Isabel Gallotti, and Ricardo Villas Bôas Cueva voted with the Hon. Reporting Justice.
Hon. Justice Nancy Andrighi recused herself. Hon. Justice João Otávio de Noronha was absent, justifiably. The judgment was presided over by the Hon. Justice Antonio Carlos Ferreira.
Brasília (DF), March 22, 2023 (date of judgment)
MINISTER MARCO BUZZI Reporter
REPORT
THE HON. MINISTER MARCO BUZZI (REPORTER):
This concerns a conflict of jurisdiction presented by the Hon. Court of Bankruptcies, Judicial
Recoveries, Civil Insolvency, and Business Litigation of the Federal District (case n.º
724774-70.2022.8.07.0015), with the Hon. Court of the 8th Federal Court of the Brasília Judicial Section/DF (case n.º 1048413-75.2022.4.01.3400/DF) as the respondent.
The records show that Elias Ezequiel dos Santos, based on Article 104 et seq. of the Consumer
Defense Code, as amended by Law n.º 14.181/2021, filed a debt restructuring action against BRB - Banco de Brasília S.A., Banco Pan S/A., Banco Santander S.A., Cartão BRB S/A and Caixa Econômica Federal - CEF, due to alleged over-indebtedness.
In his arguments, he stated that "(...) currently, the applicant's net income is around R$ 4,004.31 (four thousand four reais and thirty-one cents), however, the deductions for loans made from current accounts, payroll, and credit cards amount to R$ 10,990.29 (ten thousand nine hundred and ninety reais and twenty-nine cents)". He added that "(...) the amount after deducting all loans is completely insufficient to guarantee the minimum existential." In this context, he said that "(...) after contracting severe COVID-19, in August 2020, he suffered a cardiorespiratory arrest that caused serious neurological damage, becoming dependent on the use of a tracheostomy cannula with intermittent oxygen, furthermore, the need to be fed via gastrostomy and continuous use of medication, a fact that shook the psychological structures of the author and his family, also caused a great impact on everyone's financial life, including, this situation was a determining factor for contracting most of the loans discussed here and which led him to a situation of over-indebtedness."
Thus, he argued, "(...) the restructuring of his debts is necessary to readjust the installments, seeking to guarantee the payment of the author's creditors, but also to ensure the applicant's subsistence." He presented, based on Article 104-A, of the CDC, the respective proposal for debt fulfillment, according to the payment plan (fl. 22). He requested, finally, the acceptance of the request to restructure the debts contracted with the financial institutions. (fls. 7/28)
The Hon. Federal Court, to which the case was initially distributed, declined jurisdiction, with the following grounds:
"(...) I do not see the jurisdiction of this federal court to process and judge the present case. Although CEF, a federal public company, is listed as a defendant in this action, the present case is of a bankruptcy nature, as it concerns a clear situation of civil insolvency (due to the alleged over-indebtedness), which has the effect of excluding it from the jurisdiction of the federal court, under the terms of Article 109, I, of the Constitution. (...) I therefore understand that the present demand, whose object is the restructuring of debt of an over-indebted consumer, concerns civil insolvency and, notwithstanding having been brought against CEF, must be processed by the Federal District court, given the absolute incompetence of this federal court to appreciate the matter in question, which I declare ex officio, under the terms of Article 64, §1º, of the CPC." (fls. 84/85)
Upon receiving the records, the Hon. Party raising the conflict (case n.º 724774-70.2022.8.07.0015) argued, in turn, that:
"(...) In the concrete case, analyzing the initial petition, it is verified that the plaintiff does not request the declaration of his civil insolvency, but rather the restructuring of some debts, under the terms of Law 14.181/21 and Articles 104-A et seq. of the CDC. Furthermore, the plaintiff does not bring as a cause of action the allegation of his economic insolvency (i.e., having matured and unpaid obligations exceeding his assets), but rather that he is in a situation of over-indebtedness, unable to pay his debts without compromising the guarantee of his own subsistence. In this regard, if he were to request self-insolvency, the plaintiff would have to instruct his initial petition with the individuation of all assets, with an estimate of the value of each one, in addition to a report of his patrimonial status (Article 760, II and III, of the CPC/73), which was not presented in the records." (fls. 87/93)
He thus decided to raise the present conflict of jurisdiction. (fls. 87/93)
Summoned to express an opinion, the Federal Public Ministry deemed its manifestation unnecessary. (fls. 106/108) This is the report.
VOTE
THE HON. MINISTER MARCO BUZZI (REPORTER):
The conflict deserves to be resolved by declaring the jurisdiction of the Hon. common court of the Federal District and Territories to process and judge the debt restructuring action due to over-indebtedness filed by Elias Ezequiel dos Santos.
1. Preliminarily, the jurisdiction of this honorable court to hear and process the present incident is highlighted, as it presents a controversy between courts linked to different tribunals, under the terms of Article 105, I, "d", of the Federal Constitution, since on one side, there is the Hon. Court of Bankruptcies, Judicial Recoveries, Civil Insolvency, and Business Litigation of the Federal District (case n.º 724774-70.2022.8.07.0015) and, on the other, the Hon. Court of the 8th Federal Court of the Brasília Judicial Section/DF (case n.º 1048413-75.2022.4.01.3400).
The underlying discussion in the present incident consists of declaring the competent court to process and judge a debt restructuring action due to consumer over-indebtedness, in which, in addition to other private financial institutions, Caixa Econômica Federal is a party.
Without losing sight of the limits of the present incident (cf. AgInt nos EDcl no CC 180847/MS, rel. min. Luis Felipe Salomão, DJe of 08/30/2022), it is necessary to point out, briefly, that the amendment made to the Consumer Defense Code, through legal norm n.º 14.181/2021, of July
1, 2021, filled a legislative gap in order to offer individuals in a situation of vulnerability
(over-indebtedness) the possibility, before their creditors, to renegotiate, restructure, and finally, fulfill their contractual/financial obligations, requiring, among other requirements, the presentation of the respective payment plan for the debts (Art. 104-A, of the CDC), which will be subject to discussion and debate among the interested parties in resolving the controversy.
In this context, in addition to including Articles 54-A to 54-G in the Consumer Defense Code – CDC to specifically address the prevention and treatment of over-indebtedness, the norm provides a specific form of judicial treatment of the phenomenon, namely: the judge, at the debtor's request, may initiate a debt restructuring process, protected by Article 104-A et seq. of consumer legislation, with a view to holding a conciliatory hearing, presided over by him or by an accredited conciliator in the court, with the presence of all creditors of debts provided for in Article 54-A of this code, in which the consumer will present a payment plan proposal with a maximum term of 5 (five) years, preserving the minimum existential, guarantees, and originally agreed payment methods.
For the record, here are Articles 104-A, B, and C, of the CDC, as amended by the aforementioned new legislation:
"(...) Art. 104-A. At the request of the over-indebted natural person consumer, the judge may initiate a debt restructuring process, with a view to holding a conciliatory hearing, presided over by him or by a conciliator accredited in the court, with the presence of all creditors of debts provided for in Art. 54-A of this code, in which the consumer shall present a payment plan proposal with a maximum term of 5 (five) years, preserving the minimum existential, under the terms of the regulation, and the guarantees and payment methods originally agreed. (emphasis added)
§ 1º Debts, even if arising from consumer relations, originating from contracts fraudulently entered into without the purpose of making payment, as well as debts arising from credit contracts with real guarantees, real estate financing, and rural credit are excluded from the restructuring process. § 2º The unjustified non-appearance of any creditor, or their attorney with special and full powers to settle, at the conciliation hearing referred to in the head of this article shall result in the suspension of the enforceability of the debt and the interruption of default charges, as well as compulsory subjection to the debt payment plan if the amount owed to the absent creditor is certain and known by the consumer, with payment to this creditor being stipulated to occur only after payment to the creditors present at the conciliation hearing. § 3º In the case of conciliation, with any creditor, the judicial decision that approves the agreement shall describe the debt payment plan and shall have the effect of an enforceable title and the force of res judicata. § 4º The payment plan referred to in § 3º of this article shall include: I - measures to extend payment terms and reduce debt charges or supplier remuneration, among others intended to facilitate debt payment; II - reference to the suspension or extinction of ongoing judicial actions; III - the date from which the consumer's exclusion from databases and default registries will be arranged; IV - conditioning of its effects on the consumer's abstention from conduct that implies an aggravation of their over-indebtedness situation.
§ 5º The consumer's request referred to in the head of this article shall not imply a declaration of civil insolvency and may be repeated only after a period of 2 (two) years, counted from the liquidation of the obligations provided for in the approved payment plan, without prejudice to any renegotiation.
‘Art. 104-B. If conciliation is not successful with respect to any creditors, the judge, at the consumer's request, shall initiate an over-indebtedness process for the review and integration of contracts and the restructuring of remaining debts through a compulsory judicial plan and shall proceed with the summons of all creditors whose credits have not been included in any agreement that may have been celebrated. § 1º Documents and information provided at the hearing shall be considered in the over-indebtedness process, if applicable. § 2º Within 15 (fifteen) days, the summoned creditors shall submit documents and the reasons for their refusal to accede to the voluntary plan or to renegotiate. § 3º The judge may appoint an administrator, provided that this does not burden the parties, who, within a maximum of 30 (thirty) days, after fulfilling any necessary diligences, shall present a payment plan that includes measures for temporization or mitigation of charges. § 4º The compulsory judicial plan shall ensure to creditors, at a minimum, the principal amount due, monetarily adjusted by official price indices, and shall provide for the full liquidation of the debt, after the payment of the consensual payment plan provided for in Art. 104-A of this code, in a maximum of 5 (five) years, with the first installment being due within a maximum of 180 (one hundred and eighty) days, counted from its judicial approval, and the remaining balance being due in equal and successive monthly installments.’
‘Art. 104-C. The conciliatory and preventive phase of the debt restructuring process, as applicable, shall be concurrently and optionally competent to public bodies that are part of the National Consumer Defense System, in accordance with Art. 104-A of this code, with the possibility of the process being regulated by specific agreements celebrated between said bodies and the creditor institutions or their associations. § 1º In the case of administrative conciliation to prevent the over-indebtedness of a natural person consumer, public bodies may promote, in individual complaints, a global conciliation hearing with all creditors and, in all cases, facilitate the elaboration of a payment plan, preserving the minimum existential, under the terms of the regulation, under the supervision of these bodies, without prejudice to other applicable financial re-education activities. § 2º The agreement signed before public consumer defense bodies, in case of over-indebtedness of a natural person consumer, shall include the date from which the consumer's exclusion from databases and default registries will be arranged, as well as the conditioning of its effects on the consumer's abstention from conduct that implies an aggravation of their over-indebtedness situation, especially contracting new debts."
Professor Cláudia Lima Marques, inspirer of the aforementioned legal text, in turn, has been discussing this matter since 2010, and in her already classic concept, defines the aforementioned over-indebtedness as: "(...) the global impossibility of the individual debtor, consumer, layman, and in good faith, to pay all their current and future consumer debts (excluding debts with the tax authorities, those arising from offenses, and alimony) within a reasonable time with their current income and assets." (cf. "Algumas perguntas e respostas sobre prevenção e tratamento do superendividamento dos consumidores pessoas físicas."
Revista de Direito do Consumidor, vol. 75, ed. RT, July 2010, p. 85)
Along the same lines, see the following doctrinal positions on the topic: LUNARDELLI.
Rosângela. Direitos do Consumidor Endividado: superendividamento e crédito. São Paulo:
Revista dos Tribunais, 2006. p. 400; ANTÔNIO JOSÉ MARISTRELLO PORTO; DANIELLE
BORGES; MELINA DE SOUZA ROCHA LUKIC; PATRÍCIA REGINA PINHEIRO SAMPAIO
(orgs.). Superendividamento no Brasil. Rio de Janeiro: FGV, 2015. vol. 2; BENJAMIN, Antonio Herman de Vasconcellos. (organizer) Comentários à Lei 14.181/2021: a atualização do CDC em matéria de superendividamento. São Paulo: Revista dos Tribunais. 2021, p. 120/135; CERSAVIO, Daniel Bucar. Superendividamento: reabilitação patrimonial da pessoa humana. São Paulo/SP. Saraiva: 1st ed. p. 80/85; SOUZA, Nadialice Francischini de. Consumidor superendividado. São Paulo/SP. Saraiva. p. 400; DICKERSON, Andreas Michaele. O superendividamento do consumidor: uma perspectiva a partir dos EUA. Revista do Direito do
Consumidor. São Paulo/SP. 2021, p. 153/181; TARTUCE, Flávio. Manual de Direito do
Consumidor - Direito Material e Processual - Volume Único: Grupo Gen, 2021, p. 371; GAGLIANO, Pablo Stolze; OLIVEIRA, Carlos Eduardo Elias de. Comentários à Lei do Superendividamento (Lei n.º 14.181/2021) e o princípio do crédito responsável. (cf.
direitocivilbrasileiro.jusbrasil.com.br/artigos/1333424616/lei-do-superendividamento. Accessed on 03/15/2023); GAGLIANO, Pablo Stolze and PAMPLONA FILHO, Rodolfo. Novo Curso de Direito Civil – Contratos – Vol. 04. 4th ed. São Paulo: Saraiva, 2021, p. 189; FACHIN, Luiz
Edson. Estatuto Jurídico do Patrimônio Mínimo. Rio de Janeiro: Ed. Renovar, 2001; LIMA, Clarissa Costa de. O tratamento do superendividamento e o direito de recomeçar dos consumidores. São Paulo: Editora Revista dos Tribunais, 2014, among other authors. Indeed, at the right time, the legislator brings to light the possibility, first, of a conciliation mediated by the judiciary, and if this proves unsuccessful, there is a provision for a procedure that will establish a compulsory judicial plan, in order to enable the liquidation of the over-indebted consumer's debts, so that, with the advent of Law 14.181/2021, it is possible to contemplate a new phase in the consumer credit granting market, in which there must be a responsible use of this credit, but also its responsible offer, because, as highlighted by the Hon. Minister of this Hon. Court of Justice, Antonio Herman Benjamin, "the consumer does not exist without credit; deprived of it, he is nothing." (cf. Código Brasileiro de Defesa do Consumidor: comentado pelos autores do anteprojeto, Ada Pellegrini Grinover et al. 7th ed. Rio de Janeiro:
Forense Universitária, 2001, p. 363)
With this hermeneutic guide and resuming the examination of the concrete case, it is observed that the interested party - Elias Ezequiel dos Santos - based on Article 104 et seq. of the Consumer Defense Code, in accordance with the wording given by Law n.º 14.181/2021, filed against BRB - Banco de Brasília S.A., Banco Pan S/A., Banco Santander S.A., Cartão BRB S/A and Caixa Econômica Federal - CEF, a debt restructuring action arising from the contracting of several loans, which, as he alleged, were made for medical treatment, due to severe sequelae of COVID-19.
He filed the referred lawsuit in the Special Court of Federal Justice of the DF, which, in turn, deemed itself incompetent to examine the case because, in the understanding of the Hon. Federal Court, the plea has characteristics of civil insolvency, thus removing the attributions of the federal court, under the terms of Article 109, I, of the Federal Constitution.
In turn, the Hon. Party raising the conflict understood that the author did not bring, as a cause of action, "an allegation of his economic insolvency (i.e., having matured and unpaid obligations exceeding his assets), but rather that he is in a situation of over-indebtedness, unable to pay his
debts without compromising the guarantee of his own subsistence."
Indeed, contrary to what was argued by the Hon. Party raising the conflict, the author of the underlying lawsuit in this conflict of jurisdiction demonstrated on pages 16/17, as a cause of action, the circumstance according to which, due to the sequelae of COVID-19, he contracted several loans with the aforementioned financial institutions, in order to acquire medicines and provide financial support to his family, which, as he reported, currently compromise his own subsistence, since these obligations amount to approximately R$ 10,990.29 (ten thousand nine hundred and ninety reais and twenty-nine cents) monthly, while his income, as a retired military police officer of the DF, indicates the amount of R$ 4,004.31 (four thousand four reais and thirty-one cents), an amount lower than the fulfillment of his contractual obligations.
Thus, having delimited the controversy, the understanding is adopted that it is up to the common state and/or district courts to analyze demands whose factual and legal basis are similar to civil insolvency - as is the case of over-indebtedness - even if there is an interest of a federal entity, because the interpretation of Article 109, I, of the supreme text, must be teleological in order to encompass, in the exception of federal court jurisdiction, cases where there is a concurrence of creditors.
It is worth recalling the wording of the aforementioned Article 109, I, of the CF, which states that federal judges are competent to process and judge cases in which the Union, an autonomous entity, or a federal public company are interested as plaintiffs, defendants, assistants, or opponents, except those of bankruptcy, work accidents, and those subject to electoral justice and labor justice.
Indeed, in interpreting the aforementioned constitutional provision, the Hon. Supreme Federal
Court, on the occasion of the judgment of RE 678162, rel. p/ ac. min. Edson Fachin, DJe of 05/13/2021, established the thesis that "civil insolvency is among the exceptions in the final part of Article 109, I, of the Constitution of the Republic, for the purpose of defining the jurisdiction of the federal courts."
Here is the summary of the judgment:
"EXTRAORDINARY APPEAL. JURISDICTION. FEDERAL JUSTICE. CIVIL INSOLVENCY. EXCEPTION IN THE FINAL PART OF ARTICLE 109, I, OF THE CONSTITUTION OF THE REPUBLIC. EXTRAORDINARY APPEAL DENIED.
1. The constitutional question under debate, in this extraordinary appeal with recognized general repercussion (theme 859), is whether civil insolvency is, or is not, among the exceptions set forth in the final part of Article 109, I, of the Constitution of the Republic, for the purpose of defining the jurisdiction of the federal courts of first instance.
2. Bankruptcy, in the context of the list of exceptions to the jurisdiction of the federal courts of first instance, means both the insolvency of a legal entity and the insolvency of a natural person, considering that both involve, in their respective essences, a concurrence of creditors.
3. Thus, given the present case, the following thesis is established: 'Civil insolvency is among the exceptions in the final part of Article 109, I, of the Constitution of the Republic, for the purpose of defining the jurisdiction of the federal courts.'
4. Extraordinary appeal denied."
In the same understanding: RE 598.650/SP, rel. min. Alexandre de Moraes, DJe of 11/04/2021;
RE 907.745/SP, rel. min. Gilmar Mendes, DJe of 09/18/2022; ARE 1.376.219/MG, rel. min. Luiz Fux, DJe of 04/08/2022; Rcl 30.908/SP, rel. min. Cármen Lúcia, DJe of 10/09/2022; ARE 1.118.868/MG, rel. min. Edson Fachin, DJe of 04/26/2021; ARE 1.008.471/RJ, rel. min. Alexandre de Moraes, DJe of 11/30/2021; AI 646.041/SP, rel. min. Ricardo Lewandowski, DJe of 06/18/2022; ARE 1.062.414/RJ, rel. min. Rosa Weber, DJe of 08/09/2022; ARE 762.735/SP, rel. min. Roberto Barroso, DJe of 11/07/2021; ARE 669.847/MG, rel. min. Dias Toffoli, DJe of 06/15/2022.
Thus, according to the interpretation established by the STF, in the sense that, for the definition of exceptions to the jurisdiction of the federal courts provided for in Article 109, I, of the CF/88, it is necessary to examine the existence, or not, of a concurrence of creditors, in the case at hand, such a circumstance is absolutely identified, inasmuch as the wording of Article 104-A, of the CDC, introduced by Law n.º 14.181/21, establishes the provision that, to initiate the debt restructuring process, the presence, before the Hon. Court, of all creditors of the over-indebted consumer is required, so that the latter can propose to them the respective payment plan for his debts.
Indeed, the judicial procedure related to over-indebtedness, such as judicial recovery or bankruptcy, has an undeniable and clear concursual nature, so that federal public companies, as in the case under consideration, Caixa Econômica Federal, are exceptionally subject to the jurisdiction of the state and/or district courts, precisely due, it is reiterated, to the existence of concurrence among creditors, thus imposing the concentration, in the common state court, of all creditors, as well as the consumer himself, for the definition of the payment plan, its conditions, its term, and the forms of debt settlement.
Ultimately, the definition of jurisdiction, in the common state court, proves to be imperative due to the need to concentrate all decisions involving the interests and assets of the consumer, in order not to compromise the procedures related to the attempt, preserving the minimum existential, for the debtor to settle his financial obligations.
Indeed, the concursual nature established by the new legislation is identified in the wording of Article 104-A, of the CDC, as it states that "(...) at the request of the over-indebted natural person consumer, the judge may initiate a debt restructuring process, with a view to holding a conciliatory hearing, presided over by him or by a conciliator accredited in the court, with the presence of all creditors of debts provided for in Article 54-A of this code, in which the consumer shall present a payment plan proposal with a maximum term of 5 (five) years, preserving the minimum existential, under the terms of the regulation, and the guarantees and payment methods originally agreed." (emphasis added)
This interpretation - now proposed - has been used in unilateral/monocratic decisions within this superior court, it being worth highlighting, incidentally, an excerpt from CC 194.750/SP, reported by the Hon. Minister Paulo de Tarso Sanseverino, DJe of 02/15/2023, in which he states "(...) just like judicial recovery and civil insolvency, the debt renegotiation of an individual must have the same interpretation regarding the original jurisdiction for the processing and judgment of the case in the common state court."
In turn, the Hon. Minister Moura Ribeiro, in CC 192.823/SP, DJe of 12/20/2022, stated that "(...) the process related to over-indebtedness, such as judicial recovery or bankruptcy, has a concursual nature."
Along the same intellectual line, the Hon. Minister Maria Isabel Gallotti highlighted, in CC
190.947/DF, DJe of 10/25/2022, that "(...) the issue has already been settled within the Superior Court of Justice, which adopted the understanding that it is up to the district or state court to analyze demands dealing with civil insolvency or equivalents, as is admitted for cases of over-indebtedness, even if a federal entity is a party or interested."
And furthermore: CC 144.238/RJ, rel. Minister Ricardo Villas Bôas Cueva, Second Section, DJe of 08/31/2016; (monocratic decision); CC 117.210/AL, rel. min. Mauro Campbell Marques, First Section, DJe of 11/18/2011; CC 193.510/RJ, rel. min. Maria Isabel Gallotti, DJe of 03/07/2023
(monocratic decision); CC 194.339/SP, rel. min. Ricardo Villas Bôas Cueva, DJe of 02/17/2023 (monocratic decision); CC 189.657/MG, rel. min. Paulo de Tarso Sanseverino, DJe of
02/08/2023 (monocratic decision); CC 192.334/SP, rel. min. Moura Ribeiro, DJe of 12/20/2022. In this same sense is the doctrinal thought of Pablo Stolze Gagliano and Carlos Eduardo Elias de Oliveira, verbatim:
"(...) the jurisdiction for the debt restructuring process of the over-indebted consumer should not be shifted to the federal court if Caixa Econômica Federal or another federal public company is a creditor. The jurisdiction belongs to the common court. Article 109, I, of the Federal Constitution (CF) deserves a teleological interpretation. Although the aforementioned precept establishes the jurisdiction of the federal court when a federal public company is a party, this rule is excepted in 'bankruptcy' cases. The reference to bankruptcy, there, is constitutional. It cannot, therefore, be taken in the strict technical sense. It actually encompasses all procedures of a concursual nature. It therefore includes the recently created concursual procedure relating to over-indebtedness. It thus encompasses processes that have been labeled differently by infraconstitutional legislation. It is important to note, therefore, at this point, that the reference to "bankruptcy" in the constitutional text is, in fact, an allusion to all infraconstitutional procedures aimed at treating the debts of a debtor with negative net worth. It therefore includes not only the bankruptcy procedure provided for in Law No. 11.101/2005, but also other procedures labeled with other titles. This is the case, for example, of judicial recovery provided for in Law No. 11.101/2005, the civil insolvency procedure for health plan operators under Article 23, §1º, Law No. 9.656/1998, as well as procedures resulting from intervention and extrajudicial liquidation in financial institutions in the form of Law No. 6.024/1974. (...) In summary, it is worth remembering that the CPC, in its Article 45, I, expresses precisely this line of understanding, when referring, alongside bankruptcy, to judicial recovery and civil insolvency. It is in this context that the judicial conciliation and debt restructuring procedure for the over-indebted consumer should be understood." (cf. GAGLIANO, Pablo Stolze; OLIVEIRA, Carlos Eduardo Elias de. Comentários à Lei do Superendividamento (Lei n.º 14.181/2021) e o princípio do crédito responsável.) And furthermore, see: LIMA, Clarissa Costa de. O tratamento do superendividamento e o direito de recomeçar dos consumidores. São Paulo: Editora Revista dos Tribunais, 2014; SILVA E SAMPAIO, Marília de Ávila e. Justiça e superendividamento: um estudo de caso sobre decisões judiciais no Brasil. Rio de Janeiro: Lumen Juris, 2016; FACHIN, Luiz Edson. Estatuto Jurídico
do Patrimônio Mínimo. Rio de Janeiro: Ed. Renovar, 2001; PEREIRA, Andressa; ZAGANELLI, Margareth Vetis. Superendividamento do consumidor: prevenção e tratamento sob o prisma da dignidade da pessoa humana. Available at: https://periodicos.unicesumar.edu.br/index.php/revjuridica/article/download/6864/3397/. Accessed on June 18, 2021; WODTKE, Guilherme Domingos Gonçalves. O superendividamento do consumidor: as possíveis previsões legais para seu tratamento.
Available at:
https://www.pucrs.br/direito/wp-content/uploads/sites/11/2018/09/guilherme_wodtke_2014_2.pdf . Accessed on June 18, 2021; SILVA, Daniela Borges. Regulação para o tratamento do superendividamento: diretrizes para a construção de um modelo de falência da pessoa natural no brasil. Available at:
https://bibliotecadigital.fgv.br/dspace/bitstream/handle/10438/27342/2019_02_22%20disserta elaborado em 2019.
For intellectual loyalty, it is highlighted, in the jurisprudential data research of this Hon. STJ, the unilateral decision issued by the Hon. Minister Raul Araújo in CC 188.669/MT, DJe of
06/01/2022, in which His Excellency, in an analogous circumstance, determined the unbundling of the case into two actions: on one hand, in the federal forum, the action will proceed only against Caixa Econômica Federal - CEF; and, on the other hand, the lawsuit filed against the other creditors - private financial institutions - must continue in the state court.
Despite its grounds, the referred conclusion is not applicable to the case at hand.
First, any unbundling would cause notable prejudice to the debtor (vulnerable consumer, it is reiterated) because, as provided by the governing legislation itself (Article 104-A, of the CDC), all creditors must participate in the procedure, including at the conciliation hearing. Second, if they were to proceed separately, in different jurisdictions, federal and state, the primary objective of the over-indebtedness law would be tainted, which is to provide the consumer with the opportunity - before his creditors - to present a payment plan in order to settle his debts/contractual obligations. Third, there would be a risk of conflicting decisions between the courts regarding the credits examined, in violation of the command of Article 104-A, of the CDC. Fourth, the precarious situation of the author of the underlying demand in this conflict of jurisdiction - now interested - in the sense of being in a serious state of health, resulting from the regrettable sequelae of COVID-19 (fls. 14/15), demands reflection from this Hon. Collegiate, inasmuch as any division of the demand, contrary to respecting the debtor's situation of vulnerability, will lead, as a consequence, to a violation of procedural celerity (Article 4º, of the CPC/15), the effectiveness of judicial decisions (Article 6º, of the CPC/15), and, in the last resort, the very dignity of the human person (Article 8º, of the CPC/15).
1. In view of the foregoing, I acknowledge the present conflict and, consequently, declare the jurisdiction of the Hon. common court of the Federal District and Territories to process and judge the debt restructuring action due to over-indebtedness filed by Elias Ezequiel dos Santos, recommending to the Hon. Court, given the delicate health condition of the interested party, the utmost brevity in the examination of the case.
This is the vote.
SUPERIOR COURT OF JUSTICE
CERTIFICATE OF JUDGMENT - SECOND SECTION
RECORD NUMBER: 2022/0362595-2 ELECTRONIC PROCESS: CC 193.066 / DF ORIGIN
NUMBERS: 07247747020228070015, 10484137520224013400, 7247747020228070015
AGENDA: 03/22/2023 JUDGMENT DATE: 03/22/2023
REPORTING JUSTICE: HON. MINISTER MARCO BUZZI RECUSED MINISTER: HON.
MINISTER NANCY ANDRIGHI
PRESIDENT OF THE SESSION: HON. MINISTER ANTONIO CARLOS FERREIRA DEPUTY
ATTORNEY GENERAL OF THE REPUBLIC: HON. DR. JOSÉ BONIFÁCIO BORGES DE
ANDRADA SECRETARY: BELA. ANA ELISA DE ALMEIDA KIRJNER
CASE FILING PARTY RAISING THE CONFLICT: JUDGE OF THE CIVIL BANKRUPTCIES,
JUDICIAL RECOVERIES, CIVIL INSOLVENCY AND BUSINESS LITIGATION COURT OF THE
FEDERAL DISTRICT RESPONDENT PARTY: FEDERAL JUDGE OF THE ADJUNCT SPECIAL
CRIMINAL COURT TO THE 8TH COURT OF BRASÍLIA - SJ/DF INTERESTED PARTY: ELIAS
EZEQUIEL DOS SANTOS REPRESENTED BY: MARIA DE JESUS RODRIGUES SALES - CURATOR LAWYER: DEISEMIR COSTA DA SILVA - DF060830 INTERESTED PARTY: CAIXA ECONÔMICA FEDERAL INTERESTED PARTY: BRB BANCO DE BRASILIA SA INTERESTED PARTY: CARTÃO BRB S/A INTERESTED PARTY: BANCO PAN S.A. INTERESTED PARTY:
BANCO SANTANDER (BRASIL) S.A.
SUBJECT: CONSUMER LAW - OVER-INDEBTEDNESS
CERTIFICATE I certify that the distinguished Second Section, when appreciating the above-captioned process in the session held on this date, rendered the following decision: The Second Section, unanimously, acknowledged the conflict to declare the jurisdiction of the common court of the Federal District and Territories to process and judge the debt restructuring action due to over-indebtedness, under the terms of the vote of the Hon. Reporting Justice. The Hon. Justices Marco Aurélio Bellizze, Moura Ribeiro, Raul Araújo, Paulo de Tarso Sanseverino, Maria Isabel Gallotti, and Ricardo Villas Bôas Cueva voted with the Hon.
Reporting Justice.
Hon. Justice Nancy Andrighi recused herself. Hon. Justice João Otávio de Noronha was absent, justifiably. The judgment was presided over by the Hon. Justice Antonio Carlos Ferreira.
C542524449;00:101:0449 2022/0362595-2 - CC 193066 ELECTRONIC DOCUMENT
VDA35785289 ELECTRONICALLY SIGNED UNDER THE TERMS OF ARTICLE 1, §2, ITEM III OF LAW 11.419/2006 SIGNATORY: ANA ELISA DE ALMEIDA KIRJNER, SECOND SECTION SIGNED ON: 03/22/2023 17:18:53 DOCUMENT CONTROL CODE: 3478ea2f-351c-4a83-a477-54c47194c5d9
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