Failure to personally notify the debtor invalidates the extrajudicial auction of real estate.
In cases of fiduciary alienation of real estate, notification by public notice is only valid after all attempts to personally notify the debtor about the auction have been exhausted. Failure to comply with this procedure creates an incurable defect and renders the alienation acts null and void.
Based on this understanding, Justice Daniela Teixeira of the Superior Court of Justice granted a special appeal to annul two extrajudicial auctions held by a bank and ordered the scheduling of new dates with due prior notice.
FreepikPaper house on a pile of coins in black and white
The minister emphasized that a property cannot go to auction without personal notification of the debtor.
The dispute originated after a woman signed a secured loan agreement in 2019 with the financial institution. Due to default, the bank consolidated ownership and held auctions of the property in June and July 2020. The debtor filed an annulment action alleging that she only learned of the sale through third parties, without receiving direct notification as required by law.
The Court of Justice of Santa Catarina denied the plaintiff's request. The state court considered the actions valid because the creditor attempted to notify the client at the address on the contract and the property by mail, email, and telegram, in addition to publishing notices in widely circulated newspapers. Dissatisfied, the borrower appealed to the Superior Court of Justice (STJ), arguing a violation of article 27, paragraph 2-A, of Law 9.514/1997 , a provision included by Law 13.465/2017.
Upon reviewing the appeal, Daniela Teixeira accepted the debtor's arguments. The rapporteur explained that the rule in effect since 2017 made personal notification of the date, time, and location of the sale mandatory, even if the client had already been notified in the previous stage to remedy the default.
The judge noted that the defendant failed to prove that the borrower was actually aware of the scheduled dates and that the bank prematurely issued the public notification.
"Simply sending correspondence or publishing notices does not fulfill the legal requirement of personal notification, especially in the case of a contract signed after Law 13.465/2017, which expressly introduced this requirement," the minister emphasized.
She considered, however, that the nullity only applies to the attempts at alienation and their subsequent acts. Daniela highlighted that the failure to notify does not reverse the ownership already consolidated by the fiduciary creditor, requiring only the scheduling of new auctions respecting the rules of transparency.
Attorney Orlando Anzoategui Junior represented the debtor in the case.
Click here to read the decision
in REsp 2.154.389
Tags: personal summons personal notification of the debtor
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Let's get down to business.
Debt secured by a fiduciary transfer of ownership can be enforced directly in court.
glass roof
Early default on a mortgage prevents termination under the Consumer Protection Code.
Before and after
The auction notice must contain an updated description of the property.
Quick game
There is no need to notify the debtor about the auction of property with lien.
He took the bait.
Without negligence, the bank should not be held liable for fraud.
WRONG CONTACT
Faulty notification invalidates the seizure of property in a fiduciary sale.
BIDS CANCELED
Notification of the debtor regarding the auction of the property is necessary.
REVERSED BURDEN
Property should not be sold without prior notification to the debtor.
Last resort
Creditors must exhaust all other searches for debtors before issuing a summons via public notice.
The world turns.
The Court of Justice of Goiás recognizes the possession of the former owner of an auctioned property.
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