Post by xyz3800 on Feb 28, 2024 12:40:42 GMT 8
Item IV of article 833 of the Code of Civil Procedure prohibits the attachment of remunerations, wages, savings, pensions and gains from the debtor's self-employment. But this rule can be relativized, according to jurisprudence, as long as the principle of human dignity is observed. In other words, as long as the discount does not compromise the livelihood of the debtor and his family. The basis, used by the 15th Civil Chamber of the Court of Justice of Rio Grande do Sul, allowed the seizure of 30% of the net monthly income of one of the businessmen executed in the records of compliance with the sentence of a Monitoring Action – a special judicial collection procedure. The percentage will be deducted from the salary received by the debtor, who works at a hotel in Caxias do Sul, until the executed debt is paid.
In the court of origin, the request for garnishment of the executed debtor's salary had been rejected because it was a food payment, legally unseizable. Furthermore: due to the value of the debt, estimated at R$ 700 thousand, the court understood that the attachment would only burden the debtor, without allowing it to be fully paid off in a short space of time. Interlocutory Appeal To overturn this decision, the creditor filed an interlocutory Exit Mobile Number List appeal with the TJ-RS, supporting the possibility of seizing 30% of the debtor's income. He reported that he has been seeking to satisfy his credit for more than 11 years, while the debtor enjoys a "luxurious life". The rapporteur of the appeal in the state court, judge Vicente Barrôco de Vasconcellos, said that the relativization of the general rule up to the percentage of 30% of the debtor's income is allowed, as recently decided in the Interlocutory Appeal, of the 16th Civil Chamber, in similar case.
In fact, the understanding of both collegiate bodies is in line with the jurisprudence of the Superior Court of Justice. In other words, relativization is allowed "as long as the dignified subsistence of the executed person and his family is guaranteed", according to Special Appeal 1407062/MG. The creditor's interest also counts . Furthermore, the judge observed, the evidence in the case shows that debtors have been avoiding payment of the debt through maneuvers that make it impossible for the judgment creditor (debt creditor) to seize a sufficient amount to satisfy their credit. So much so that, in 11 years, the creditor managed to seize minimum social shares and a car worth less than R$5,000. "Although it is recognized that the execution must be carried out in a less onerous way for the debtor, the creditor's interest and the effectiveness of the judicial provision cannot be ignored (REsp 801.262/Humberto). The attachment must fall on the debtor's asset that effectively secures the satisfaction of the credit, preventing the perpetuation of the debt", wrote Barrôco in the ruling.
In the court of origin, the request for garnishment of the executed debtor's salary had been rejected because it was a food payment, legally unseizable. Furthermore: due to the value of the debt, estimated at R$ 700 thousand, the court understood that the attachment would only burden the debtor, without allowing it to be fully paid off in a short space of time. Interlocutory Appeal To overturn this decision, the creditor filed an interlocutory Exit Mobile Number List appeal with the TJ-RS, supporting the possibility of seizing 30% of the debtor's income. He reported that he has been seeking to satisfy his credit for more than 11 years, while the debtor enjoys a "luxurious life". The rapporteur of the appeal in the state court, judge Vicente Barrôco de Vasconcellos, said that the relativization of the general rule up to the percentage of 30% of the debtor's income is allowed, as recently decided in the Interlocutory Appeal, of the 16th Civil Chamber, in similar case.
In fact, the understanding of both collegiate bodies is in line with the jurisprudence of the Superior Court of Justice. In other words, relativization is allowed "as long as the dignified subsistence of the executed person and his family is guaranteed", according to Special Appeal 1407062/MG. The creditor's interest also counts . Furthermore, the judge observed, the evidence in the case shows that debtors have been avoiding payment of the debt through maneuvers that make it impossible for the judgment creditor (debt creditor) to seize a sufficient amount to satisfy their credit. So much so that, in 11 years, the creditor managed to seize minimum social shares and a car worth less than R$5,000. "Although it is recognized that the execution must be carried out in a less onerous way for the debtor, the creditor's interest and the effectiveness of the judicial provision cannot be ignored (REsp 801.262/Humberto). The attachment must fall on the debtor's asset that effectively secures the satisfaction of the credit, preventing the perpetuation of the debt", wrote Barrôco in the ruling.