Court decides that debt can be collected after five years

Defaulting citizens can be charged for a debt after five years, according to a decision of the 17th Chamber of Law of the TJ-SP (Court of Justice of São Paulo). The collection can be done in an administrative and friendly manner, without legal action, and the name of the debtor can appear in the credit protection records.

The decision was taken in a lawsuit opened in July 2021, in which a consumer asked that the debt statute of limitations be respected, of up to five years, according to article 206 of the Civil Code, in addition to the removal of her name from the defaulter records. .

In the first instance, the court won the case to the citizen, but the company appealed and the Justice decided that the debt does not cease to exist and can, yes, be collected, as long as it does not embarrass the debtor.

The worker went to court against a collection company that represented a large network of retail stores and was collecting a debt from 2013, in the amount of R$ 432.43. The consumer’s lawyers claimed, in their arguments, that the debt prescription had occurred in 2018 and, therefore, the collection could no longer be made.

In the action, the request was for the debt to be canceled, in addition to forcing the company to remove its name from the debtor records. The citizen also asked for moral damages for the collection calls. In the first instance, the judge partially granted the requests, denying moral damage.

In the appeal, however, the company won the case, with the understanding that the Civil Code does not determine the inexistence of debt, but only deals with collection. For lawyer Cauê Yaegashi, managing partner of Eckermann Yaegashi Santos Sociedade de Advogados, who defended the collection company, the decision was correct.

According to the office, the Judiciary followed the thesis that it cannot be determined that a debt ceases to exist after a certain period, leading some consumers to not pay the amounts on time, only waiting for the final date for the debt to disappear.

“Everyone thinks that it ‘lapses’, and ‘expiring’ would be to get rid of the debt. But that doesn’t happen, it continues to exist. The creditor can no longer use the Judiciary after five years. For us, the objective was reached. The judge recognized the effectiveness of the law”, says Yaegashi.

“The creditor-debtor relationship will never cease to exist, unless the debt is paid or the creditor forgives”, says the lawyer.

Lawyer Ruslan Stuchi, a specialist in the civil area and partner at Stuchi Advogados, also recognizes that people really have this understanding that debt disappears after five years, which it does not. “The debt does not cease to exist and can appear in the credit protection agencies throughout life, indicating default”, he says.

The topic, however, is controversial. Although there are decisions defending that there is no deadline for the debt to cease to exist, there are many others that guarantee the consumer the right to have his name removed from the defaulters’ records.

Escape from default

1. Do the math to understand your debts

• Make a list of all overdue bills and installments, with their respective amounts. Put at the top of the list those that you need to pay off first, because they are essential, such as water and electricity bills, for example, or because they cost more, such as credit cards and overdrafts.
• Then, you need to know how much you will have available each month to pay the arrears, considering the other expenses you already have

2. Negotiate with creditors

• Look for the companies you owe and try to negotiate. Do not accept the first proposal, but understand how the negotiation is going: What is the discount percentage on the total debt? If I pay in cash, is there a bigger discount? If you pay in installments, how much interest is there?
• Define an objective, the value that you can have and make counterpoints
• If you still have doubts, ask for the negotiation proposal to be made in writing. Go home, talk to the family and come back later to hit the hammer and sign the renegotiation contract

3. Get organized so you don’t continue to be in debt

• When closing the deal, know that you have to stick to it until the end, so negotiate only amounts you can pay with the income you already have
• To ensure that you no longer have negative debts in your name, bet on financial planning, balance your monthly earnings and expenses. Make a spreadsheet and involve the whole family in this control and in the effort to save

^{Source: Serasa Teaches}