Queue of precatories freezes in São Paulo and about R$ 4 billion are stopped

Old and paper processes, lawsuits with many participants, creditors who have already died and a succession of legal and technical issues can turn the payment of a state or municipal court order into a via crucis.

The delay created a kind of internal queue at the TJ-SP (São Paulo Court of Justice), which currently lasts two years, according to lawyers, except in cases where there is priority (elderly and people with serious illnesses, for example).

About R$ 4 billion would be stuck in the middle of bureaucratic procedures, estimate the lawyers.

At least R$ 1.8 billion has already been released by Depre (Diretoria de Execuções de Precatórios e Cálculos) to Upefaz (Processing Unit for Executions Against the Public Treasury), which processes the precatorios of the municipality of São Paulo, are stopped awaiting action. of the parties, according to the TJ-SP, so that they can be withdrawn, term given to the final stage of payment.

This wait led entities linked to the law to publish a note asking for better conditions in the execution of payments. In the document, they say that thousands are harmed by the unpredictability of deadlines.

Sign the note AASP (Association of Lawyers of São Paulo), Cesa (Center for Studies of Law Firms), IASP (Institute of Lawyers of São Paulo), MDA (Movement for the Defense of Lawyers) and OAB-SP (Order of Lawyers of Brazil in São Paulo).

The problem, which had been dragging on for a few years, worsened during the pandemic. While the TJ-SP was in remote work, the final verification procedures were stopped, says Felippo Scolari, president of the Commission of Precatórios of the OAB-SP.

The TJ-SP says that checks are essential to ensure that payments reach the correct recipients. This is done in the court of origin of the process, after the transfer by Depre, or, in cases where the creditor is the City of São Paulo, in Upefaz.

“Many late payments are from old processes, in which only a precatory was issued with many creditors. As they are old, a lot happens. A party that dies, someone who assigns a part, can have a pledge. but it is a very complicated management”, says judge Fernão Borba Franco, deputy coordinator of Depre.

The wait until the money is withdrawn varies according to the level of complication. “It’s a big and time-consuming job, many processes were still on paper and involve a lot of volumes”, says Franco. The TJ expects to finalize the typing of its processes by the end of this year.

In Franco’s assessment, however, the wait for the precatories to be released has not worsened. “This year had a very large volume of withdrawals and deposits and this may have given the impression of delay.”

The precatories executed by the TJ-SP are debts owed by public bodies, such as the government of São Paulo, city halls, foundations and universities, with citizens who have won lawsuits. They are, in general, payments determined in lawsuits for salary readjustments, bonus incorporations, retirement adjustments or indemnities for expropriations, for example.

Constitutional amendments on precatories

• The first moratorium in the state and municipality was in 1988, which paid off the debt in eight years.
• EC 30, in 2000, threw the payment of non-food precatórios for ten years
• EC 62, in 2009, known as the “default amendment”, created a special payment regime, forced states and municipalities to reserve a percentage of current net income for these debts and gave 15 years for payment (until 2024)
• EC 94/2016 defined that pending precatories until March 25, 2015 and those due until December 31, 2020 could be paid until 2020
• EC 99/2017 extended until 2024 and created the possibility for people on the priority list to anticipate part of the credit
• EC 109/2021 threw the payment of precatories of states and municipalities for 2029

For those who are creditors of the state, the municipality or some entity, this internal queue is a second ordeal, after having already waited years for the license. Currently, the government of São Paulo is paying precatorios from 2008; in the city hall of the city of São Paulo, they are from 2006. The entities dedicate, annually, 1.5% of the current net income to these payments.

In the note released by the entities, the lawyers demand the adoption of procedures that give more predictability to payments and reduce payment deadlines. While the creditor waits, the money is fixed until the final payment date.

Franco, from Depre, says that the TJ-SP is working to improve the processing of these precatorios. The priority, he said, is to resolve late payments sooner and shorten the wait between depositing and withdrawing.

At the same time, it begins to work on the integration of execution and payment systems, which will make it possible to keep values ​​up-to-date and treat each creditor individually. With this, the Board of Precatórios hopes to “isolate” more complicated cases.

In practice, in a case with many creditors, the court will be able to release the amounts of those with confirmed qualification and hold only the cases about which there are doubts. Agreements with notaries are also foreseen so that the confirmation of deaths can be done within the system itself.

When fully operational, the new system should allow, in most cases, according to Franco, for the release of amounts to be practically immediate – or “in a matter of days”.

The Judiciary began to implement this model of direct payment with creditors who closed agreements with the State Treasury last year. In August, it made the first payments of agreements with the city halls of the capital and with municipalities in the interior. In these agreements, creditors waive 40% of the updated amount to advance payment.

This direct payment system should be gradually expanded, until it reaches all 949 debtor entities in São Paulo. The expectation is that it will be 100% ready by the end of 2023.

For the OAB-SP, it is necessary that the schedule be accelerated. Scolari, from the Precatórios Commission, says that the delay in payments increases the risk that creditors will fall into scams or choose to sell their debts for much lower amounts compared to what they are entitled to.

“We have two situations. The first delay, which is that of the Government, which always postpones these payments. After it pays, it is up to the TJ to locate the creditors and deal with the pending issues”, says Scolari.

Since January of this year, Depre has released R$ 8 billion for the payment of 27,415 precatories. Upefaz, on the other hand, issued 20,264 survey warrants, which made it possible to withdraw R$ 2.7 billion in capital processes, according to the TJ-SP.