STJ DECISION ALLOWS USE OF CNIB TO ENABLE COMPLIANCE WITH CIVIL ENFORCEMENT OBLIGATIONS
A decision handed down by the Third Panel of the Superior Court of Justice (STJ) considered that the order for the debtor’s assets to be made inalienable through the National Asset Unavailability Center (CNIB) system complies with the principles of reasonability and proportionality, and thus does not violate the principle of the least onerous burden on the debtor and only plays the role of publicizing the act of unavailability. The judge can therefore order the search and the decree of inalienability of the debtor’s real estate, in civil enforcement, through the CNIB.
However, the rapporteur, Justice Marco Aurélio Bellizze, warned that this measure, given its subsidiary nature, should only be admitted after the typical executive means are exhausted.
CNIB, according to Provision 39/2014 of the General Disciplinary Board of Courts (CNJ), is comprised of an Electronic Database System, managed by the Association of Real Estate Registrars, which will be supported by the inalienability orders issued by both the Judiciary and other Government bodies, in accordance with the provisions of the law. The purpose is to receive and disseminate to system users inalienability orders that affect real estate assets and rights over real estate, as well as to receive communications about the lifting of said inalienability orders.
In the case in question, Banco Safra – which filed an enforcement action against a shoe manufacturer, which has been ongoing since 2013, without any progress in satisfying the debt – had its appeal denied at first instance. Therein, the bank claimed a new search for the assets of the debtors using the tools available to the Judiciary to effectively satisfy the claim, in particular the CNIB.
In a special appeal to the STJ, Banco Safra persisted in its claim, demonstrating the possibility of using the atypical measure, based on article 139, IV, of the Code of Civil Procedure. The rapporteur, Justice Marco Aurélio Belizze, accepted the appeal, mentioning the judgment “of ADI 5,941/DF, which recently declared the constitutionality of the actual application of the atypical measures provided for in art. 139, IV of the Code of Civil Procedure/2015, as long as it does not encroach on fundamental rights and observes the principles of proportionality and reasonability”. The rapporteur ordered that the case records be returned to the court of origin, so that the judge could verify whether the typical executive means had been exhausted, in order to enable the CNIB to be used.
In conclusion, the adoption of the CNIB will allow the Judiciary to order the inalienability of debtors’ real estate assets, with the consequent entries in the Real Estate Registries, automatically.
