Adjudication is not a shortcut: The nullity of an appraisal without due process and the limits of judicial expropriation.
The assessment is an integral part of the due legal process for enforcement, and its execution without prior notification to the parties cannot be remedied by simply providing the report later.
Hector Luiz Borecki Carrillo
Source : Migalhas
Tuesday, August 18, 2026
Updated on August 17, 2026 at 5:24 PM
Adjudication is one of the most efficient ways to satisfy a debt in the enforcement process. Through it, the creditor can receive the seized asset itself, with its value being applied to the payment of the obligation.
This efficiency, however, does not transform the awarding process into a procedural shortcut.
Between the seizure of assets and the definitive transfer of property, there is a procedural sequence that cannot be artificially compressed: attachment, valuation, and expropriation .
The importance of this order was recently reaffirmed by the Superior Court of Justice (STJ). In REsp 2.200.180/SP, the 4th panel ruled that attachment constitutes a prior and necessary procedural act for adjudication, precisely because the legally established sequence concretizes due process and protects not only the debtor, but also third parties who may be affected by the expropriation.
The conclusion raises an even more interesting question: if the lien cannot be lifted before the adjudication, could the valuation be produced without adversarial proceedings or even replaced by a disputed unilateral estimate?
The answer must be negative.
Valuation is not a mere accounting formality.
Judicial appraisal occupies a central position in the expropriation system.
It is this that establishes the economic parameter from which the assets will be subject to the mechanisms for satisfying the debt.
In the specific case of adjudication, its relevance is even more evident. Article 876 of the CPC allows the plaintiff to request adjudication provided that they offer a price no lower than the appraised value .
Therefore, the value assigned to the asset is not a peripheral element of the procedure.
He interferes directly:
The amount of the debt that will be considered satisfied;
In preserving the assets of the debtor;
In the economic position of the other creditors;
In the event that there is a balance;
And in the very possibility of awarding the contract.
The lower the valuation, the lower the economic value that can be attributed to the expropriation.
For this reason, an appraisal carried out without due process is not simply a formal irregularity. It can have a direct impact on millions of reais worth of assets.
Article 474 of the CPC and the adversarial principle in the formation of evidence.
The CPC contains a particularly important rule that is sometimes underestimated in legal practice.
Article 474 states:
"The parties will be notified of the date and location designated by the judge or indicated by the expert for the commencement of the production of evidence."
The rule does not exist to provide mere procedural courtesy.
Prior knowledge allows the parties to participate in the formation of evidence , and not just discuss its outcome later.
In a real estate appraisal, for example, monitoring the due diligence allows for the participation of a technical assistant, the presentation of documents, the indication of improvements, the clarification of the property's characteristics, the monitoring of comparative elements used, and the identification of circumstances that may influence the expert's conclusion.
Therefore, there is a substantial difference between the two situations:
- to be summoned to participate in the expert examination ;
- to be subsequently summoned to challenge a report that has already been completed .
These are distinct manifestations of contradiction.
In the first case, there is participatory adversarial proceedings , exercised during the production of evidence. In the second, there is subsequent adversarial proceedings , exercised on evidence that has already been gathered. Confusing these two moments can produce a particularly serious consequence: considering a nullity arising precisely from the impossibility of participating in the act that produced the evidence to be precluded.
The subsequent opening of a period for comments on the report does not restore to the party the opportunity to accompany an inspection that has already taken place.
In this case, the procedural time is irreversible.
Preclusion cannot transform the absence of a right to a hearing into a right to a hearing.
This point deserves special attention.
It is common that, in the absence of an immediate challenge to a particular assessment, preclusion is invoked.
The conclusion may be correct when the party participated regularly in the procedure, was notified of the relevant actions, and remained inactive.
The problem arises when the evaluation process itself occurred without proper notification.
In this scenario, preclusion cannot be used to produce a kind of automatic validation of a non-existent adversarial process.
Before asking when the party challenged the expert report , it is necessary to answer the logically preceding question: was the party properly invited to participate in the production of evidence?
If the answer is negative, the procedural analysis changes substantially.
Due process is not satisfied merely by the possibility of submitting petitions after the act has been completed. In certain types of evidence, especially those dependent on in-person inspection that cannot be reproduced under the same conditions, contemporary participation has its own legal value.
Even worse: when there isn't even a judicial assessment.
There is an even more sensitive hypothesis.
Imagine that a certain judicial valuation is ordered but not carried out. Instead, one of the parties submits a private valuation. The opposing party expressly challenges the document. Even so, the value is subsequently used as a parameter for expropriation. In this scenario, we are no longer simply dealing with the discussion about the adversarial process in the production of expert evidence.
The question then becomes another:
Is it possible to transform a disputed unilateral assessment into a judicial assessment simply by having it ratified?
Article 871, I, of the CPC allows for dispensing with the appraisal when one of the parties accepts the estimate made by the other.
The very structure of the rule reveals the opposite solution: if there is significant controversy regarding the estimate, the basis for waiving the assessment disappears .
Acceptance and rejection cannot be equated.
And even less so to construct an adjudication based on unilateral value when the system itself conditions expropriation on the existence of a legally sound economic parameter.
Seizure, appraisal and expropriation: a constitutionally relevant sequence
The recent judgment in REsp 2.200.180/SP provides an additional element for this reflection. When examining an adjudication carried out without prior seizure, the 4th panel of the Superior Court of Justice (STJ) did not treat the order of executive acts as a simple organizational preference of the legislator. The Court expressly linked the seizure-appraisal-expropriation sequence to due process of law. According to the STJ, prior seizure ensures publicity, allows for appraisal, guarantees the right to a fair hearing, and protects third parties; its suppression compromises the legitimacy of the expropriation.
The premise has consequences that go beyond the specific situation of that trial.
If the enforcement process contains a sequence constitutionally intended to legitimize the deprivation of assets, it is not enough that the steps exist nominally.
It is necessary that they be validly performed .
It would make no sense to consider the assessment indispensable within the procedural sequence and, simultaneously, allow it to be produced without observing the guarantees established by the CPC itself.
The valuation is not a number placed between the seizure and the adjudication.
It is a qualified procedural act , upon which the economic effects of the expropriation depend.
When the market contradicts the judicial assessment.
The issue becomes even more relevant when objective evidence emerges demonstrating a possible discrepancy between the value assigned judicially and the value actually recognized by the market.
The CPC (Code of Civil Procedure) anticipated this possibility. Article 873 allows for a new appraisal when there is an error or fraud, when a subsequent increase or decrease in the value of the asset is verified, or when there is reasonable doubt about the value previously assigned.
The expression "reasonable doubt" deserves to be taken seriously.
Consider a hypothetical situation: two properties are jointly valued at approximately R$ 5.5 million, and before the adjudication is finalized, a third party submits a formal offer of R$ 8.5 million, payable in cash. The difference would be close to R$ 3 million, more than 50%.
A concrete offer of this nature does not, in itself, mean that the property is necessarily worth exactly the amount offered. But it could hardly be considered legally irrelevant. At the very least, it constitutes an objective element capable of generating reasonable doubt about the previously made valuation . And this distinction is important.
This is not about replacing the judicial assessment with a third party's proposal. It is about recognizing that the market has presented new data that is sufficiently significant to justify revising the parameter used in the expropriation.
Monetary adjustment is not a new valuation.
Another relevant distinction is that between updating an appraisal and re-appraising a property .
These are completely different operations.
Monetary correction aims to restore the nominal value of a given amount over time. Real estate appraisal seeks to determine how much a property is actually worth on the market at a given moment .
Rural and urban properties, as well as business assets, do not necessarily track general inflation rates.
Regional appreciation, urban expansion, agricultural productivity, water availability, infrastructure, environmental changes, zoning changes, and countless other circumstances can substantially modify its price.
Consequently, an outdated valuation does not automatically become a contemporary valuation simply by applying a monetary index.
And a procedurally invalid assessment, evidently, does not become valid simply because its numbers have been corrected.
The award and competing creditors
There is yet another dimension that is often forgotten.
The seized property may be liable simultaneously to several creditors. In this case, the adjudication ceases to have effects only in the bilateral relationship between the plaintiff and the defendant.
Article 876, § 5, of the CPC grants standing to request adjudication also to competing creditors who have seized the same asset.
If there is more than one applicant, paragraph 6 provides for a bidding process among them.
The Superior Court of Justice (STJ) specifically addressed the distinction between this dispute over adjudication and the subsequent creditors' meeting in REsp 2.098.109/PR.
The 3rd panel clarified that the bidding process among those vying for the award , governed by articles 876 and 877, is not the same as the competition for preferences regarding the economic proceeds of expropriation , governed by articles 908 and 909. It also established that, in order to compete for the award, a request from the interested party is necessary.
The distinction is fundamental.
First, the discussion focuses on who intends to be awarded the asset . Then, when an economic product subject to competition exists, the discussion turns to who has preference in receiving it .
The award cannot erase material preferences.
The problem becomes especially delicate when, in addition to multiple liens, there are credits with material preference.
Article 908 of the CPC establishes that, when there are multiple creditors or plaintiffs, the money will be distributed according to the order of their respective preferences. Only in the absence of a legal title of preference does the seniority of the attachments become decisively relevant.
The jurisprudence of the Superior Court of Justice (STJ) has long differentiated between these two situations.
In REsp 1.454.257/PR, the 3rd panel reaffirmed the impossibility of a merely procedural preference – arising from the prior nature of the attachment – prevailing over a preference established by substantive law. This aspect reveals an important practical consequence of adjudication.
When a creditor adjudicates using their own credit, there is not necessarily a physical inflow of money equivalent to the price of the asset. However, the existence of other preferential creditors prevents this technique from being used to economically deplete the rights of those who should precede them in satisfaction.
The awarding of a contract cannot function as an indirect mechanism for the disappearance of the economic product to which preferences would apply.
Effective enforcement does not mean maximizing the exclusive interest of the plaintiff.
It is understandable that the enforcement process seeks to satisfy the creditor. That is its function. But effective enforcement does not mean maximizing the economic interest of a single creditor at any cost.
The system also protects:
- the defendant against excessive expropriation;
- the other creditors against the depletion of the asset guarantee;
- third parties holding rights over the property;
- and the very institutional legitimacy of the forced transfer of property.
Therefore, when it exists simultaneously:
- questionable assessment;
- absence of opposing viewpoints;
- Substantially superior offer and multiple creditors.
The appropriate procedural response should not be to expedite the adjudication. It should be to verify whether the conditions that legitimize the expropriation are actually present.
Assessment as a guarantee, not as an obstacle.
There is an understandable tendency to view procedural requirements of execution as obstacles to effectiveness. This perception needs to be put into perspective. A correct assessment also protects the creditor. It reduces the risk of future annulment of the adjudication, increases the stability of the transfer, allows for the correct sizing of debt satisfaction, and avoids subsequent litigation involving third parties and competing creditors.
Contradictory arguments are not the enemy of execution. Contradictory arguments are what legitimize execution. And the more serious the state action—especially when it involves the compulsory transfer of property—the greater the concern should be for the integrity of the procedure that precedes it.
Conclusion
Adjudication is a powerful instrument for debt satisfaction, but precisely because of its patrimonial significance, it must remain linked to the assumptions that legitimize it.
The sequence of seizure, appraisal, and expropriation is not mere ritualism. It represents due process of law applied to execution. From this, several important conclusions follow.
An assessment carried out without the scientific rigor stipulated in Article 474 of the Code of Civil Procedure may compromise the adversarial process in the very formation of evidence.
A subsequent summons to comment on the expert report does not necessarily make up for the lost opportunity to monitor its production.
A unilaterally challenged estimate should not be artificially converted into a consensual judicial assessment.
A specific offer that is substantially higher may constitute sufficient reasonable doubt to justify a new evaluation, pursuant to Article 873 of the Code of Civil Procedure.
And the existence of competing creditors – especially when material titles of preference are involved – requires that the adjudication be examined also from the perspective of those who will dispute the economic outcome of the expropriation.
The pursuit of effectiveness does not justify reversing this logic.
First, the validity of the seizure is ensured. Then, the validity of the valuation. Only then is the expropriation legitimized.
Because, in the execution process, speed is desirable.
No shortcut.
Hector Luiz Borecki Carrillo
Lawyer - Carrillo Lawyers.
link: https://www.migalhas.com.br/depeso/462495/adjudicacao-nao-e-atalho-a-nulidade-da-avaliacao-sem-contraditorio
OPINION
Claro. Abaixo está a mesma tradução, mas em formato mais compacto, sem aquelas quebras excessivas de linha.
BRAZILIAN SUPERIOR COURT OF JUSTICE — STJ
SPECIAL APPEAL No. 2,200,180 — SÃO PAULO (2022/0231505-2)
COMPLETE ENGLISH TRANSLATION OF THE OFFICIAL JUDGMENT — WITH LEGAL TRANSLATION NOTES AND ORIGINAL STJ PAGE NUMBERING
Reporting Justice: Justice Antonio Carlos Ferreira
Fourth Panel — Brazilian Superior Court of Justice (STJ)
Decision rendered: August 5, 2025
Judgment electronically signed: August 11, 2025
Published in DJEN/CNJ: August 18, 2025
Original document: 11 pages.
PRELIMINARY LEGAL TRANSLATION NOTES
This translation is intended to remain as literal as possible while preserving the correct legal meaning of Brazilian procedural terminology. Several concepts in this judgment do not have exact one-word equivalents in United States law, and mechanical translation may materially distort the decision.
1. “Adjudicação.” In ordinary English legal usage, adjudication generally means the judicial determination of a controversy. That is not what the Brazilian procedural institution means here. Under the Brazilian Code of Civil Procedure, adjudicação is a form of judicial expropriation through which property subjected to enforcement is judicially transferred to the creditor toward satisfaction of the debt. The first-instance decision reproduced by the STJ expressly states that the debtor’s share of the property was transferred to the creditor, who thereby became the owner of the entire property. Accordingly, throughout this translation, adjudicação is rendered as “judicial transfer of the property to the creditor (Brazilian adjudicação)”, and subsequently as “judicial transfer to the creditor.”
2. “Penhora.” Penhora is not accurately translated simply as lien. Under Brazilian enforcement procedure, it is the formal judicial act by which a specific asset is subjected to enforcement. The STJ explains that it individualizes the asset, preserves it by removing it from the debtor’s free disposition, establishes preference for the creditor, gives publicity to the restraint, permits adversarial participation, and initiates the official appraisal procedure. Accordingly, penhora is translated as “judicial seizure (Brazilian penhora)”, and thereafter as “judicial seizure.”
3. “Avaliação.” In this judgment, avaliação means determination of the economic value of the asset for purposes of judicial expropriation. It is translated as “appraisal” and “official appraisal of the property.” It should not be mechanically rendered as assessment, which has other legal meanings in English.
4. “Expropriação.” Expropriação refers to the compulsory disposition or appropriation of assets within enforcement proceedings in order to satisfy the enforceable obligation. It is translated as “expropriation.” The judgment expressly identifies Brazilian adjudicação as one of the forms of expropriation provided for by Article 825 of the Brazilian Code of Civil Procedure.
5. “Cumprimento de sentença.” This is the procedural phase through which an enforceable judicial judgment is implemented and is translated as “enforcement of judgment.”
6. “Exequente” and “executado.” These are translated as “enforcement creditor” and “enforcement debtor.” When the translation reproduces a lower-court ruling using autor and ré, the terms “plaintiff” and “defendant” are retained.
7. “Contraditório.” The Brazilian constitutional and procedural concept of contraditório is broader than merely having a hearing. It encompasses notice, effective participation, the opportunity to challenge procedural acts and evidence, and the ability to influence the proceeding. Depending on syntax, it is rendered as “adversarial participation” or “the right to adversarial proceedings.”
8. “Direito de defesa.” This is translated as “right of defense.”
9. “Devido processo legal.” The established English constitutional expression is “due process of law”, not due legal process. This is particularly important because the STJ expressly places the enforcement sequence within the constitutional dimension of due process of law.
10. “Carta de adjudicação.” This is the formal instrument documenting the judicial transfer resulting from Brazilian adjudicação. It is translated as “instrument formalizing the judicial transfer of the property.”
PAGE 1 OF 11 — OFFICIAL STJ JUDGMENT
SPECIAL APPEAL No. 2,200,180 — SP (2022/0231505-2)
REPORTING JUSTICE: JUSTICE ANTONIO CARLOS FERREIRA
APPELLANT: GRACIELE DOS REIS ANDRADE
COUNSEL: FÁBIO ZAFIRO FILHO — SP136259
APPELLEE: MARCELO PAULO MIRANDA DO PRADO
COUNSEL: JANA DANTE LEITE — SP185255; DANIEL SILVA CORTES — SP278724
HEADNOTE
CIVIL PROCEDURAL LAW. SPECIAL APPEAL. ENFORCEMENT OF JUDGMENT. JUDICIAL TRANSFER OF THE PROPERTY TO THE CREDITOR (BRAZILIAN ADJUDICAÇÃO). PRIOR JUDICIAL SEIZURE. ABSENCE. IMPOSSIBILITY. ABSOLUTE NULLITY. VIOLATION OF DUE PROCESS OF LAW. SPECIAL APPEAL GRANTED.
I. Case Under Review. 1. Special Appeal filed against a judgment of the Court of Justice of the State of São Paulo that upheld a first-instance decision which granted the judicial transfer to the enforcement creditor of real property co-owned by the enforcement creditor and the enforcement debtor, without prior judicial seizure of the property.
II. Issue Under Discussion. 2. To determine whether prior judicial seizure is necessary as a procedural prerequisite for the judicial transfer of property to the creditor in enforcement proceedings.
III. Grounds for Decision. 3. Judicial seizure constitutes a prior procedural act indispensable to the judicial transfer of property to the creditor in enforcement proceedings, as expressly provided in Articles 523, § 3, 825, and 876 of the Code of Civil Procedure, which establish an unavoidable procedural sequence: JUDICIAL SEIZURE — APPRAISAL — EXPROPRIATION.
4. The requirement of prior judicial seizure as a prerequisite for judicial transfer to the creditor does not represent a mere procedural formality, but gives concrete effect to the fundamental guarantee of due process of law provided for in Article 5, LIV, of the Federal Constitution.
4.1. The absence of judicial seizure constitutes absolute nullity, which does not require proof of prejudice because it affects the very structure of the enforcement procedure.
Electronic document VDA49359841 electronically signed pursuant to Article 1, § 2, item III, of Law No. 11,419/2006. Signatory: Antonio Carlos Ferreira. Signed on August 11, 2025, at 3:59:02 p.m. Published in DJEN/CNJ on August 18, 2025. Document Control Code: 07726462-053d-4594-a1a3-df089de22a37.
PAGE 2 OF 11 — OFFICIAL STJ JUDGMENT
4.2. The principles of procedural expedition and procedural economy cannot be used to set aside a mandatory procedural rule expressly provided for by law. The effectiveness of judicial protection cannot be achieved at the expense of legal certainty and due process of law.
IV. Holding and Rule of Decision. 5. Special Appeal granted in order to recognize the nullity of the judicial transfer of the property to the creditor carried out without prior judicial seizure and to order the return of the case to the court of origin so that the procedure established by law may be observed.
Rule of Decision: “1. Judicial seizure is a prior procedural act necessary for the judicial transfer of property to the creditor.”
Relevant provisions cited: CPC/2015, Articles 523, § 3; 825, I; 876; Federal Constitution, Article 5, LIV.
Relevant precedent cited: STJ, REsp 2,041,861/SP, Reporting Justice Nancy Andrighi, Third Panel, decided on June 13, 2023.
JUDGMENT
Having reviewed and reported these proceedings, in which the parties are those identified above, the Justices of the FOURTH PANEL, unanimously, agree to grant the appeal, in accordance with the vote of the Reporting Justice. Justices João Otávio de Noronha, Raul Araújo, and Marco Buzzi voted with the Reporting Justice. Justice João Otávio de Noronha presided over the judgment. Justice Maria Isabel Gallotti was absent for justified reasons.
Brasília, August 11, 2025. Justice Antonio Carlos Ferreira, Reporting Justice.
Electronic document VDA49359841 electronically signed pursuant to Article 1, § 2, item III, of Law No. 11,419/2006. Signatory: Antonio Carlos Ferreira. Signed on August 11, 2025, at 3:59:02 p.m. Published in DJEN/CNJ on August 18, 2025.
PAGE 3 OF 11 — OFFICIAL STJ JUDGMENT
CERTIFICATE OF JUDGMENT — FOURTH PANEL
Registration Number: 2022/0231505-2. Electronic Proceeding: REsp 2,200,180/SP.
Originating Case Numbers: 00010752620198260223; 0001075262019826022300099190920128260223; 00010752620198260223000991909201282602232012000948; 00099190920128260223; 10752620198260223; 1075262019826022300099190920128260223; 10752620198260223000991909201282602232012000948; 2012000948; 20210000469315; 21266347520218260000; 99190920128260223.
Scheduled: June 17, 2025. Considered: June 17, 2025. Reporting Justice: Antonio Carlos Ferreira. President of the Session: Maria Isabel Gallotti. Deputy Prosecutor General of the Republic: Renato Brill de Goes. Clerk: Teresa Helena da Rocha Basevi.
Case Registration: Appellant: Graciele dos Reis Andrade. Counsel: Fábio Zafiro Filho — SP136259. Appellee: Marcelo Paulo Miranda do Prado. Counsel: Jana Dante Leite — SP185255; Daniel Silva Cortes — SP278724. Subject Matter: Civil Law — Property — Ownership — Co-ownership.
Certificate: I certify that the distinguished Fourth Panel, upon considering the above-referenced proceeding at the session held on this date, rendered the following decision: “The judgment was postponed at the request of the Reporting Justice.”
Electronic document VDA48293065. Signatory: Teresa Helena da Rocha Basevi, Fourth Panel. Signed on June 17, 2025, at 6:06:18 p.m.
PAGE 4 OF 11 — OFFICIAL STJ JUDGMENT
SPECIAL APPEAL No. 2,200,180 — SP (2022/0231505-2)
REPORTING JUSTICE: JUSTICE ANTONIO CARLOS FERREIRA
APPELLANT: GRACIELE DOS REIS ANDRADE
COUNSEL: FÁBIO ZAFIRO FILHO — SP136259
APPELLEE: MARCELO PAULO MIRANDA DO PRADO
COUNSEL: JANA DANTE LEITE — SP185255; DANIEL SILVA CORTES — SP278724
HEADNOTE
CIVIL PROCEDURAL LAW. SPECIAL APPEAL. ENFORCEMENT OF JUDGMENT. JUDICIAL TRANSFER OF THE PROPERTY TO THE CREDITOR (BRAZILIAN ADJUDICAÇÃO). PRIOR JUDICIAL SEIZURE. ABSENCE. IMPOSSIBILITY. ABSOLUTE NULLITY. VIOLATION OF DUE PROCESS OF LAW. SPECIAL APPEAL GRANTED.
I. Case Under Review. 1. Special Appeal filed against a judgment of the Court of Justice of the State of São Paulo that upheld a first-instance decision which granted the judicial transfer to the enforcement creditor of real property co-owned by the enforcement creditor and the enforcement debtor, without prior judicial seizure of the property.
II. Issue Under Discussion. 2. To determine whether prior judicial seizure is necessary as a procedural prerequisite for the judicial transfer of property to the creditor in enforcement proceedings.
III. Grounds for Decision. 3. Judicial seizure constitutes a prior procedural act indispensable to the judicial transfer of property to the creditor in enforcement proceedings, as expressly provided in Articles 523, § 3, 825, and 876 of the Code of Civil Procedure, which establish an unavoidable procedural sequence: JUDICIAL SEIZURE — APPRAISAL — EXPROPRIATION.
4. The requirement of prior judicial seizure as a prerequisite for judicial transfer to the creditor does not represent a mere procedural formality, but gives concrete effect to the fundamental guarantee of due process of law provided for in Article 5, LIV, of the Federal Constitution.
4.1. The absence of judicial seizure constitutes absolute nullity, which does not require proof of prejudice because it affects the very structure of the enforcement procedure.
PAGE 5 OF 11 — OFFICIAL STJ JUDGMENT
4.2. The principles of procedural expedition and procedural economy cannot be used to set aside a mandatory procedural rule expressly established by law. The effectiveness of judicial protection cannot be achieved at the expense of legal certainty and due process of law.
IV. Holding and Rule of Decision. 5. Special Appeal granted in order to recognize the nullity of the judicial transfer of the property to the creditor carried out without prior judicial seizure and to order the return of the case to the court of origin so that the legally established procedure may be observed.
Rule of Decision: “1. Judicial seizure is a prior procedural act necessary for the judicial transfer of property to the creditor.”
Relevant provisions cited: CPC/2015, Articles 523, § 3; 825, I; 876; Federal Constitution, Article 5, LIV. Relevant precedent cited: STJ, REsp 2,041,861/SP, Reporting Justice Nancy Andrighi, Third Panel, decided on June 13, 2023.
REPORT
This is a Special Appeal based on Article 105, III, “a,” of the Federal Constitution, filed against a judgment whose headnote reads as follows (p. 9):
> INTERLOCUTORY APPEAL — ENFORCEMENT OF JUDGMENT — CHALLENGE TO DECISION THAT GRANTED THE JUDICIAL TRANSFER TO THE APPELLEE OF THE APPELLANT'S SHARE OF THE PROPERTY, WITHOUT PRIOR JUDICIAL SEIZURE — ADMISSIBILITY — JUDICIAL TRANSFER TO THE CREDITOR AS A FORM OF EXPROPRIATION — INTERPRETATION OF ARTICLE 825, ITEM I, OF THE CODE OF CIVIL PROCEDURE — COMMONLY OWNED PROPERTY — APPELLEE'S RIGHT OF PREFERENCE — DECISION AFFIRMED — APPEAL DENIED.
In her grounds for appeal (pp. 13–24), the appellant alleges violation of Articles 523, § 3, 825, I, and 876 of the CPC, arguing:
> “At the court of first instance, the judicial transfer of real property to the creditor was ordered without prior judicial seizure, and the state court of origin upheld the judicial transfer of the property under those circumstances. Judicial seizure is an essential act of the proceeding, and its absence results in absolute nullity, which cannot be cured by the supposed absence of prejudice to the party, as stated by the distinguished adjudicating Panel” (p. 16).
She argues that there is:
> “no legal or even logical justification whatsoever for dispensing with judicial seizure and directly transferring real property to the creditor. This measure runs counter not only to the legislation in force but also to the entire Brazilian procedural tradition.”
PAGE 6 OF 11 — OFFICIAL STJ JUDGMENT
The appellant continues:
> “Under the procedural law currently in force, the judicial transfer of property to the creditor is an institution of procedural law that must always be preceded by judicial seizure of the property. There is no other means of judicially transferring property to the creditor in Brazilian civil proceedings except in this manner” (p. 21).
She further argues:
> “the statutory provision that specifically governs the judicial transfer to the creditor (Article 876, caput, CPC/2015, already transcribed above) expressly refers to judicial seizure (‘request that the seized property be judicially transferred to the creditor’). Therefore, procedural law presupposes that prior judicial seizure must occur before the real property may subsequently be judicially transferred to the creditor. [...]. Even if it were said that prejudice must be demonstrated (which we admit only ad argumentandum), it is evident that the enforcement debtor, now the appellant, would have the right to challenge the judicial seizure (Article 525, § 11, CPC/2015), alleging, for example, that the property is exempt from seizure because it constitutes a protected family home (Law No. 8,009/90), thereby preventing the property from being expropriated (whether through sale at public auction or through judicial transfer to the creditor)” (p. 22).
She adds:
> “the prejudice, therefore, is evident and does not even need to be alleged because it arises from the statutory text itself, which permits, in theory, the assertion that real property is exempt from judicial seizure because it constitutes a protected family home” (p. 23).
No response to the Special Appeal was filed (p. 26). The interlocutory appeal was ordered converted into a Special Appeal for a more thorough analysis of the controversy (p. 90). This is the report.
VOTE
At the court of origin, MARCELO PAULO MIRANDO DO PRAZO [name reproduced as it appears in this portion of the official source] filed an action for enforcement of judgment against GRAZIELE DOS REIS ANDRADE. After having been duly served, the enforcement debtor neither made payment nor filed an objection, which led the enforcement creditor to request the judicial transfer of the real property to him, attaching a calculation worksheet and adding the penalty and attorney's fees provided for in Article 523, § 1, of the CPC.
The enforcement debtor challenged the request for judicial transfer because of the absence of prior judicial seizure. The Court of the 3rd Civil Court of the Judicial District of Guarujá granted the judicial transfer of the real property, in accordance with the decision transcribed below (p. 18 — emphasis added):
> “Seen. The debt relating to the rent due having been liquidated, the worksheet initially submitted having been recalculated, with attorney's fees excluded because the defendant is a beneficiary of legal aid, and the period for the defendant to make voluntary payment of the amount due having elapsed, the present enforcement proceeding must continue in the amount of R$102,388.64 (p. 276). Without prejudice to the foregoing, considering that this involves a forced transfer resulting from the termination of co-ownership of the property, the plaintiff has a preferential right to acquire the share belonging to the defendant. That is, in fact, what he seeks in his submissions. Under these circumstances, considering that the amount of the debt exceeds one-half of the value of the property (to which the defendant is entitled), I GRANT the judicial transfer to the plaintiff of the share belonging to the defendant, whereby the plaintiff becomes the owner of the entire property that is the subject matter of this litigation.”
PAGE 7 OF 11 — OFFICIAL STJ JUDGMENT
The first-instance decision continues:
> “This circumstance eliminates any discussion concerning judicial seizure of the property. At the appropriate time, after expiration of the period for filing an appeal against this decision, the corresponding instrument formalizing the judicial transfer of the property to the plaintiff shall be issued.”
Against that decision, the party filed an interlocutory appeal. The Court of Justice of the State of São Paulo denied the appeal on the ground that:
> “Article 825, item I, of the Code of Civil Procedure establishes judicial transfer to the creditor as one of the forms of expropriation, such that, in the present case, prior judicial seizure is unnecessary. It must also be taken into consideration that, in the case under review, the property is commonly owned by the parties, one-half of which already belongs to the appellee, who therefore possesses a preferential right. Moreover, the appellant presented no argument to the effect that the judicial transfer to the creditor, without prior judicial seizure, caused her any prejudice that would warrant modification of the appealed decision, such that the decision complied with the principles of procedural expedition and procedural economy” (p. 10 — emphasis added).
The legal controversy concerns whether the judicial transfer of property to the creditor may be granted in enforcement proceedings without its prior and formal judicial seizure. The Code of Civil Procedure establishes, clearly and unequivocally, that judicial seizure is a prior procedural act necessary for the judicial transfer of property to the creditor. This logical and chronological sequence arises from the very nature of compulsory enforcement and from the system of expropriation established therein.
In the case of enforcement of judgment, Article 523, § 3, of the CPC expressly provides:
> “If voluntary payment is not timely made, a writ of judicial seizure and appraisal shall immediately be issued, followed by the acts of expropriation.”
The statutory text establishes an unavoidable chronological order: first, judicial seizure and appraisal; thereafter, the acts of expropriation.
Article 825, I, of the CPC, which establishes judicial transfer to the creditor as one of the forms of expropriation, must in turn be interpreted together with Article 876 of the same Code, which clearly provides:
> “The enforcement creditor may, by offering a price not lower than the appraised value, request that the seized property be judicially transferred to him or her.”
The express reference to “seized property” demonstrates that judicial seizure is an indispensable procedural prerequisite for judicial transfer to the creditor.
In this regard, the Third Panel of the STJ expressly recognized the procedural sequence applicable to expropriation of property, stating:
> “once the judicial seizure and appraisal of the property have been carried out, the possibility arises to request its judicial transfer to the creditor (Article 875 of the CPC/2015)”
(REsp No. 2,041,861/SP, Reporting Justice Nancy Andrighi, Third Panel, decided on June 13, 2023, DJe June 22, 2023).
PAGE 8 OF 11 — OFFICIAL STJ JUDGMENT
THE CONSTITUTIONAL DIMENSION OF DUE PROCESS OF LAW IN ENFORCEMENT PROCEEDINGS
The requirement of prior judicial seizure as a prerequisite for the judicial transfer of property to the creditor does not represent a mere procedural formality, but gives concrete effect to the fundamental guarantee of due process of law established in Article 5, LIV, of the Federal Constitution, according to which:
> “No one shall be deprived of liberty or of his or her property without due process of law.”
The procedural sequence established by the procedural legislature—JUDICIAL SEIZURE — APPRAISAL — EXPROPRIATION—reinforces the constitutional command by structuring an enforcement proceeding that balances the effectiveness of judicial protection with the guarantees afforded to the enforcement debtor.
From this constitutional perspective, judicial seizure represents a qualified procedural stage that cannot be eliminated by judicial decision without thereby violating the guarantee of due process of law itself.
The elimination of judicial seizure therefore violates not only the statutory provisions governing enforcement procedure but also the essential core of the constitutional guarantee of due process of law, insofar as it permits the deprivation of the enforcement debtor's property without observance of the procedure established by law.
Far from constituting a mere procedural formality, judicial seizure performs an essential role in the legitimacy and security of enforcement proceedings. As may be inferred from the normative framework contained in Articles 797 through 875 of the CPC, the act of judicial restraint performs multiple functions: (i) it individualizes the property upon which enforcement will fall (Article 831); (ii) it preserves the property, removing it from the enforcement debtor's free disposition (Article 839); (iii) it grants the enforcement creditor a preferential right (Article 797); (iv) it guarantees publicity of the enforcement act, permitting third parties to become aware of it and to present any challenges (Article 844); (v) it enables the enforcement debtor to exercise adversarial participation, including the right to request substitution of the seized property (Articles 847 through 853); and (vi) it gives rise to the procedure for the official appraisal of the property (Article 870).
It must further be emphasized that direct expropriation prevents the enforcement debtor from fully exercising the right of defense with respect to a claim that the property may be exempt from judicial seizure, as in cases protected by Law No. 8,009/1990.
Accordingly, judicial seizure transcends mere formality and constitutes an essential legal requirement for the judicial transfer of the property to the creditor. Failure to observe this procedural prerequisite constitutes absolute nullity, without any need to prove actual harm. Such irregularity compromises the foundation of the enforcement procedure, affecting both its formal and substantive validity. In this context, prejudice is presumed ex lege, because the irregularity violates fundamental principles such as legal certainty and due process of law.
The absence of the formal act of judicial seizure prevents the regular development of the expropriation phase in multiple respects: it prevents the official appraisal of the property (Article 870 of the CPC)—
PAGE 9 OF 11 — OFFICIAL STJ JUDGMENT
—the official appraisal of the property (Article 870 of the CPC); obstructs the necessary publicity of the judicial restraint (Article 844); and restricts the enforcement debtor's prerogative to request substitution of the seized property (Article 847), thereby compromising procedural guarantees.
Moreover, the principles of procedural expedition and procedural economy invoked by the court below cannot be used to set aside a mandatory procedural rule expressly provided for by law. Those principles guide interpretation of the procedural system, but they do not authorize the judge to create procedures not provided for by law or to dispense with stages legally established as mandatory.
The effectiveness of judicial protection, which certainly is a value to be pursued, cannot be achieved at the expense of legal certainty and due process of law. Judicial seizure, as a complex procedural act, has specific purposes that extend beyond mere formality and constitutes a fundamental guarantee both for the enforcement debtor and for potentially interested third parties.
The procedural system itself provides mechanisms for simplifying and accelerating enforcement proceedings, but always within the limits established by the legislature. Judicial dispensation with express statutory requirements, under the pretext of making the proceeding more expeditious, constitutes undue interference by the Judiciary in the sphere of competence of the Legislative Branch.
THE INDISPENSABILITY OF JUDICIAL SEIZURE IN ALL FORMS OF EXPROPRIATION
It is relevant to observe that the requirement of prior judicial seizure is not restricted to the judicial transfer of property to the creditor, but constitutes an unavoidable requirement for every form of expropriation provided for in Article 825 of the CPC, whether judicial transfer to the creditor (Brazilian adjudicação) — item I; alienation — item II; or appropriation of fruits and income — item III.
With respect to alienation, whether conducted by private initiative or through judicial auction (Article 880), the Code of Civil Procedure is equally explicit in requiring prior judicial seizure. Article 881 regulates the “electronic or in-person judicial auction” as a form of alienation of “the seized property.” Thus, procedural law makes clear that judicial seizure constitutes a prior and indispensable stage.
The same applies to the appropriation of fruits and income, governed by Articles 867 through 869 of the CPC. Article 867 provides:
> “the judge may order the judicial seizure of fruits and income from movable or immovable property,”
demonstrating once again the necessity of formalizing the judicial seizure before expropriation.
This normative uniformity concerning the requirement of prior judicial seizure in all forms of expropriation reinforces the conclusion that it constitutes an unavoidable procedural prerequisite forming part of the very structure of the enforcement procedure established by the legislature.
PAGE 10 OF 11 — OFFICIAL STJ JUDGMENT
Judicial seizure therefore cannot be dispensed with for purposes of judicial transfer of property to the creditor when such dispensation would not be permissible for any other form of expropriation provided for under procedural law.
Recognizing the possibility of judicial transfer of property to the creditor without prior judicial seizure would create a systemic inconsistency within the procedural legal order, establishing different treatment for forms of expropriation that the law regulates equivalently and subjects to the same procedural requirements.
A contrary interpretation would amount to authorizing judges to create procedures not provided for by law, which, in addition to violating the principle of legality and the separation of powers, would generate legal uncertainty and unequal treatment among persons subject to the jurisdiction of the courts who are situated in identical circumstances.
Accordingly, by dispensing with judicial seizure and ordering the direct judicial transfer of the real property to the creditor, the judgment under appeal violated Articles 523, § 3, 825, I, and 876 of the CPC.
For the foregoing reasons:
> I GRANT THE SPECIAL APPEAL and, recognizing the nullity of the judicial transfer of the property to the creditor carried out without prior judicial seizure, order the case returned to the court of origin so that the procedure established by law may be observed, with judicial seizure being carried out before any eventual judicial transfer of the property to the creditor.
This is my vote.
PAGE 11 OF 11 — OFFICIAL STJ JUDGMENT
CERTIFICATE OF JUDGMENT — FOURTH PANEL
Registration Number: 2022/0231505-2. Electronic Proceeding: REsp 2,200,180/SP.
Originating Case Numbers: 00010752620198260223; 0001075262019826022300099190920128260223; 00010752620198260223000991909201282602232012000948; 00099190920128260223; 10752620198260223; 1075262019826022300099190920128260223; 10752620198260223000991909201282602232012000948; 2012000948; 20210000469315; 21266347520218260000; 99190920128260223.
Scheduled: June 17, 2025. Decided: August 5, 2025. Reporting Justice: Antonio Carlos Ferreira. President of the Session: João Otávio de Noronha. Deputy Prosecutor General of the Republic: Renato Brill de Goes. Clerk: Taynah Rode da Silva Petini.
Case Registration: Appellant: Graciele dos Reis Andrade. Counsel: Fábio Zafiro Filho — SP136259. Appellee: Marcelo Paulo Miranda do Prado. Counsel: Jana Dante Leite — SP185255; Daniel Silva Cortes — SP278724. Subject Matter: Civil Law — Property — Ownership — Co-ownership.
Certificate: I certify that the distinguished Fourth Panel, upon considering the above-referenced proceeding at the session held on this date, rendered the following decision:
> “THE FOURTH PANEL, unanimously, granted the appeal, in accordance with the vote of the Reporting Justice.”
Justices João Otávio de Noronha, Raul Araújo, and Marco Buzzi voted with the Reporting Justice. Justice João Otávio de Noronha presided over the judgment. Justice Maria Isabel Gallotti was absent for justified reasons.
Electronic document VDA49245299. Signatory: Taynah Rode da Silva Petini, Fourth Panel. Signed on August 5, 2025, at 6:16:45 p.m. Document Control Code: 05C48436-7BFD-4C78-9D77-9CDF5AD59617.
FINAL TRANSLATOR'S LEGAL NOTE
The central meaning of this judgment must not be obscured by the English word adjudication. The case concerns the compulsory transfer of ownership of real property to a creditor. The first-instance court expressly ordered the debtor's share transferred to the creditor and stated that, as a result, the creditor became the owner of the entire property. That statement appears in the original STJ judgment at pages 6–7.
The Brazilian Superior Court of Justice held that this judicial transfer was absolutely null because it occurred without the prior judicial seizure required by law. The STJ further held, at page 8, that eliminating the prior judicial seizure violated not merely an ordinary procedural rule, but “the essential core of the constitutional guarantee of due process of law”, because it permitted deprivation of the debtor's property without observance of the procedure established by law.
Accordingly, the mandatory sequence identified by the Court is:
> JUDICIAL SEIZURE → APPRAISAL → EXPROPRIATION
and, where the chosen form of expropriation is Brazilian adjudicação:
> JUDICIAL SEIZURE → APPRAISAL → JUDICIAL TRANSFER OF THE PROPERTY TO THE CREDITOR
The dispositive portion at page 10 nullified the judicial transfer already made and ordered the case returned to the trial court so that the legally prescribed procedure could be followed.
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