The Third Panel of the Superior Court of Justice (STJ) ruled that when there is a justified refusal by the creditor, the court may deny the replacement of an attachment with judicial surety insurance, which is considered equivalent to cash under Article 835, paragraph 2, of the Code of Civil Procedure (CPC).
During the enforcement of an extrajudicial title, the debtor requested to replace the attachment of possessory rights over a property with judicial surety insurance, but the creditor objected, citing the insufficiency of the insurance and the existence of unacceptable conditions in the policy.
The São Paulo Court of Justice (TJSP) upheld the lower court’s decision denying the replacement due to the creditor’s objection, adding that accepting the insurance at that stage of the proceedings would further delay the satisfaction of the debt.
In the appeal to the STJ, the debtor argued that the lower court improperly subjected the replacement of the attachment to the creditor’s discretionary acceptance and to the enforceability of the surety insurance. He also claimed that there would be no harm to the creditor, and therefore the guarantee should not be refused.
Replacement of attachment is not an absolute right of the debtor
Justice Nancy Andrighi, the reporting judge, recalled that under STJ jurisprudence, the order of preference for attachment listed in Article 835 of the CPC is not absolute, as it may be disregarded depending on the case, as established by Precedent 417.
She explained that, for the purposes of replacing an attachment, judicial surety insurance is treated as equivalent to cash, similar to a bank guarantee, provided that the insured amount is not less than the amount of the debt stated in the initial petition plus 30%.
On the other hand, she emphasized that although surety insurance is prioritized by equivalence, the replacement of the attachment “is not an absolute right of the debtor and may be refused by the court when there is a well-founded objection from the creditor.”
Case-specific circumstances justified the refusal
The reporting judge acknowledged that the specific circumstances raised by the creditor justified the judicial decision to deny the replacement of the attachment, and that these factors were key to the TJSP’s decision to uphold the measure.
In the judge’s assessment, the creditor demonstrated that the policy conditions were unacceptable, as it would be necessary to wait for a final ruling on objections filed by the debtor against a decision that had found a simulation in the transfer of the property whose rights had been attached.
Nancy Andrighi also noted that the surety insurance was insufficient: the policy did not properly adjust the insured amount to match the debt being enforced and did not include statutory default interest. “It is clear that the rejection of the replacement did not stem from the creditor’s mere discretion or from unreasonable grounds, as the appellant claims,” the judge concluded.
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