Piauí Court of Justice determines that prescribed debts cannot be collected

In Brazil, it is quite common for consumers at some point in their lives to have contracted a debt that, for one reason or another, they were unable to pay off. Thus, the years passed and after 5 (five) years the debt was removed from credit protection agencies, such as SPC, Serasa, etc. However, the consumer continued to receive collection messages, constant calls and emails, being harassed daily by collection companies, including often being threatened with having their name “denied”, having the debt protested at a notary's office, having their assets seized by order of the “Arbitration Court”, and the debt is time-barred.

It turns out that debt overdue for more than 5 (five) years is unenforceable and can no longer be collected in any way, as it has lost the LEGALITY of its collection due to prescription, as provided for in article 206, §5 of the Civil Code, as the five-year statute of limitations set out in the aforementioned article applies: “Art. 206. Prescribes: § 5 In five years: I - the intention to collect net debts contained in a public or private instrument”.

The Superior Court of Justice - STJ, handed down a paradigmatic decision when judging REsp n. 2.088.100/SP, whose rapporteur was Minister Nancy Andrighi, where it established the parameter that once the prescription is recognized, due to its effects and legal certainty, it will no longer be possible to collect the debt, since the prescription prevents the debt collection, judicially or extrajudicially, mentioned below:

"[…] 6. If the claim is the power to demand compliance with the performance, once it is stopped due to prescription, it will no longer be possible to demand the aforementioned behavior from the debtor, that is, it will no longer be possible to collect the debt. Therefore , the recognition of the prescription of the claim prevents both judicial and extrajudicial collection of the debt. 7. Hypothesis in which the ordinary courts have declared that the prescription of the creditor's claim is uncontroversial, and it must be concluded that it is impossible to collect the debt, whether judicial or judicial. extrajudicially, requiring the maintenance of the appealed ruling. 8. Special appeal known and dismissed (REsp no. 2.088.100/SP, rapporteur Minister Nancy Andrighi, Third Panel, judged on 10/17/2023, DJe of 10/23/ 2023.). (Our emphasis).

In the same sense, these are the decisions handed down by the Court of Justice of Piauí following the parameters established by the Superior Court of Justice, as seen in the judgment of CIVIL APPEAL nº 0830520-31.2022.8.18.0140, by the Judging Body of the 4th Specialized Civil Chamber , reported by Judge Dr. João Gabriel Furtado Baptista, as well as CIVIL APPEAL 084623550.2021.8.18.0140, whose collegial judging body was the 3rd Specialized Civil Chamber, reported by Judge Dr. Ricardo Gentil Eulálio Dantas, namely:

"[…] 1. The occurrence of prescription prevents the collection, both judicial and extrajudicial, of the debt; that is, once the debt is prescribed, it takes on the appearance of a natural obligation, thereby losing its enforceability; it exists, but is unenforceable 2. The declaration of non-existence of the debt is necessary, after all, the collection claim is admittedly time-barred”.

MM. Judge of the 2nd Court of the District of Valença do Piauí-PI, Dr. FILIPE BACELAR AGUIAR CARVALHO, when facing the issue of recognition of debt prescription by judgment on the merits, in the files of case no. 0802283-76.2022.8.18.0078, following the aforementioned determination of the Superior Court, it emphasized that when declaring the debt unenforceable due to the five-year statute of limitations on the debt, the consumer only pays off the debt if he wants to, and the creditor must refrain from proceeding with collection acts, let's see:

"[…] Based on the records, it is clear that the debt is time-barred when considering the original due date of the debt, therefore, the debt must be declared unenforceable and consequently, the plaintiff pays off the debt only if she wants to.

In effect, the debt cannot be collected judicially or noted in the credit protection bodies (SPC Brasil and Serasa Experian), once covered by the statute of limitations.[…]”. (Italics in the original).

Finally, as MM complements. Judge of the 5th Civil Court of the District of Teresina - PI, when invoking the aforementioned decision of the Superior Court, the magistrate explains that it was defined that the prescription of debts prevents the possibility of any collection, judicial or extrajudicial, whether through the sending messages by cell phone or through calls, or registering the debt on a billing platform (Serasa Limpa Nome or Agreement Certo). (Precedential from the 5th Civil Court: 0846234-65.2021.8.18.0140).

It is understood that the prescription turns the obligation to pay the debt into a natural obligation, that is, absolutely unenforceable, uncollectible by any means, since the recognition of the prescription prevents the possibility of any form of collection, judicial or extrajudicial, and the consumer will only pay off the debt if he wants to. This conduct by the creditor constitutes an attempt to circumvent the statute of limitations, as, through such practice, the creditor attempts to force the consumer to pay the prescribed debt, under penalty of perpetual penalty for the debtor.

Antônio Barbosa Lima O’Brien Júnior, Lawyer

specialist in Consumer Law

REFERENCES

BRAZIL. Law No. 10,406, of January 10, 2002. Establishes the Civil Code. Official Gazette of the Union: section 1, Brasília, DF, year 139, n. 8, p.

BRAZIL. Superior Court of Justice - STJ. 3rd Class.Special Appeal No. 2,088,100 - SP (2023/0264519-5). Appellant: Itapeva Recuperação de Créditos LTDA. Respondent: Danilo Pedro de Araujo. Rapporteur: Hon. Mrs. Minister NANCY ANDRIGHI. Judgment: 10/17/2023. Source: <https://processo.stj.jus.br/SCON/GetInteiroTeorDoAcordao?num_registro=202302645195&dt_publicacao=23/10/2023>. Accessed July 7, 2024.

BRAZIL. Court of Justice of Piauí. 4th Specialized Civil Chamber. Civil Appeal No. 0830520-31.2022.8.18.0140. Appellant: Lojas Riachuelo SA. Defendant: Solange Maria de Sousa. Rapporteur: Judge João Gabriel Furtado Baptista. Judgment October 31, 2023.

BRAZIL. Court of Justice of Piauí. 3rd Specialized Civil Chamber. Civil Appeal No. 0846235-50.2021.8.18.0140. Appellant: Silvana Gomes dos Santos. Defendant: Oi Móvel S.A. Rapporteur: Judge Ricardo Gentil Eulálio Dantas. Judgment October 17, 2023.

BRAZIL. Court of Justice of Piauí. 5th Civil Court of the District of Teresina - PI. Declaratory action for non-existence of debt with request for moral damages. Process nº 0846234-65.2021.8.18.0140. Author: Silvana Gomes dos Santos. Defendant: Oi Móvel S.A. Judge: Dr. Maria das Neves Ramalho Barbosa Lima. Sentence: May 3, 2024.

BRAZIL. Court of Justice of Piauí. 2nd Civil Court of the District of Valença do Piauí. Declaratory action of non-existence of legal transaction with compensation for moral damages. Process nº 0802283-76.2022.8.18.0078. Author: Salustiano Alves dos Santos. Defendant: ATIVOS S.A. SECURITIZADORA DE CREDITOS FINANCEIROS. Judge: Dr. Filipe Bacelar Carvalho Aguiar. Sentence: February 29, 2024.