Debt prescribes in 5 years? Justice says no; understand the debate

Decision of the 17th Chamber of Law of the TJ-SP (Court of Justice of São Paulo) taken in early August left the indebted even more worried. According to Justice, debts do not cease to exist after five years and can be collected in an administrative and friendly manner, without any legal action.

The decision also determined the maintenance of the name of the debtor who filed suit in the list of credit protection companies. The trial divided experts. On the one hand, there are those who defend the understanding of the TJ-SP, claiming that, if the debt ceases to exist, it benefits bad debtors.

On the other hand, there are consumer protection bodies, which understand that it is mandatory for the creditor to remove the debtor’s name from the credit protection records after five years, respecting the prescription provided for in article 206 of the Civil Code.

The matter has already been defined by the STJ (Superior Court of Justice), which understands that there is no cancellation of the debt after five years, that is, it does not cease to exist, but cannot be charged in a vexatious way.

In Justice, there is also division. In some states, the Judiciary understands that appearing on a debt renegotiation platform is not embarrassing, in others, judges are against such measure. But, on one point everyone agrees, after five years, you can’t leave the name of the defaulter negative.

The difference, experts explain, is the type of list on which the debtor is placed. Today, credit bureaus usually have two: one in which the name of the defaulter is placed so that he can be the target of debt negotiation proposals and clear the name, and another, which leaves him negative, with a dirty name.

It is from the latter that, after five years, the registration must be withdrawn, under penalty of legal action, according to the experts consulted by the Sheet.

According to Fabio Pasin, a lawyer and researcher at the Idec (Brazilian Institute for Consumer Protection) financial services program, there are debts that expire in one, three or five years. And, after the statute of limitations, the name cannot be on the record of negatives or there be vexatious charges.

If this does not occur, the consumer must ask the registration manager to remove the name. This must be done in writing and with protocol record.

Lawyer Ruslan Stuchi, a partner at Stuchi Advogados, says that, if necessary, it is possible to file a lawsuit. “The consumer can file a lawsuit called ‘habeas data’ against the negative record,” he says.

Benito Conde, a specialist in banking law and a partner at Montezuma e Conde Advogados Associados, states that the administrative collection can be carried out without threat of inclusion of the citizen’s name in debtor records or legal action. If it is not friendly, there is even the right to moral damages.

Debt only ends if there is forgiveness or discharge

Cauê Yaegashi, managing partner of Eckermann | Yaegashi | Santos – Sociedade de Advogados, which defended the creditor in the lawsuit judged by the TJ-SP, believes that citizens are confusing the statute of limitations on the debt with its inexistence. “The decision recognizes the intention to maintain the collection, provided that the limits are respected so that it does not configure vexatious or coercive collection.”

The expert points out that the debt only ceases to exist if there is forgiveness by the creditor or discharge by the debtor.

Serasa Cleans Nome has been the target of actions

The Serasa Limpa Nome platform has been the target of legal actions from consumers who understand that having their name on it can set up vexatious charges. However, according to the lawyers and the Ministry of Justice, although Serasa is known as a credit protection agency, the Clean Name service does not constitute a negative.

In the TJ-DF (Court of Justice of the Federal District), there is already jurisprudence, with the understanding that Serasa Limpa Nome is a platform and the list of negatives is another. Having your name on it is not synonymous with vexatious or embarrassing charge.

When consulted, the Ministry of Justice states that, in the country, the STJ’s understanding has been applied that, after five years, there is a loss of the right to collect a debt in court, but the debt does not cease to exist.

“The creditor’s right to extrajudicial collection of the credit persists, including through negotiation platforms, such as Serasa Limpa Nome”, says the body.

In a note, Serasa states that the portal is “destined exclusively to bring together creditors and debtors, for specific purposes of debt renegotiation (whether they are negative or not)”. With this, the platform is not confused with the registration of defaulters.