Post by account_disabled on Mar 12, 2024 4:30:42 GMT -5
Condominium had assigned credit relating to condominium owner's debt, but TJ-RJ withdrew its subjective procedural privileges
123RF
The assignment of credit does not imply a change in its nature. Based on this understanding, the 3rd Panel of the Superior Court of Justice, unanimously, upheld the appeal of an investment fund to maintain as a condominium a credit that was assigned to it, with all the legal consequences arising from the assignment. The panel analogously applied the understanding adopted by the Federal Supreme Court (Theme 361).
In its special appeal, the fund challenged the decision of the Court of Justice of Rio de Janeiro that understood that the credits arising from the condominium debt of an estate, transferred to the fund, should be reinstated in inventory. In this specific case, when the fund acquired the credits, they were already in the execution phase. With the TJ-RJ decision, the fund's credits would compete with others — the fund would become a common creditor.
"Once assigned, it is clear that the debt no longer has the same
discipline and legal protection. The asset is now safe and the creditor is a common creditor, without subjective procedural privileges, as it is no longer a condominium", says an excerpt from the TJ-RJ decision.
To the STJ, the fund argued, among other points, that the assignment of credit operates the transmission of the obligation without extinguishing or modifying its nature and content.
The rapporteur of the special Portugal Mobile Number List appeal — minister Villas Bôas Cueva — highlighted that the STF, after recognizing the existence of a general repercussion of the matter referring to "transchanging the nature of a food precatório into a normal one due to the transfer of the right contained therein" ( Theme 361 ) , decided that the assignment of credit does not imply a change in its nature.
The minister then understood that the hypothesis of the STF ruling applies to the case of the special appeal. "A similar situation occurs in the case in question, given that the transmutation of the nature of the credit assigned would come at the expense of the condominiums themselves, which use the assignment of their credits as a means of obtaining the financial resources necessary to cover the costs of preserving the thing , thus relieving the other condominium owners who keep their obligations up to date", he said.
It has been common in the market for the acquisition of condominium credits by investment funds in credit rights. They pay a condominium owner's debt at a certain discount and then acquire the right to pursue it in court against the original debtor. If, after being assigned, there was a change in the nature of the credit, the assignment itself would no longer make sense, which goes against the interests of the condominiums, which prefer to assign the credits, receiving them immediately rather than trying to execute them in court, with the inherent risks. to this attempt.
Thus, the minister explained that, in the securitization activities of condominium credits, investment funds in credit rights — like the appellant in the case under analysis — make use of the credit assignment institute, regulated by articles 286 et seq. of the Civil Code , and, when paying off unpaid condominium fees, they are subrogated to the same position as the transferring condominium, with all the legal prerogatives conferred on it.