In a trial of significant repercussion for systematizing the Over-Indebtedness Act, the Third Panel of the Superior Court of Justice stated an opinion that precisely frames the performance of creditors in conciliation hearings provided for in Article 104-A of the Consumer Protection Code. In Special Appeal No. 2.191.259/RS, filed by a Financial Institution, the Court ruled out the imposition of legal sanctions provided for in Paragraph 2 of said provision, recognizing as sufficient the presence of a representative with powers to settle the claims — even if there is no proposal for a settlement.
The controversy stemmed from a lawsuit filed by an over-indebted consumer, grounded on Law 14181/2021, which instituted specific mechanisms for the renegotiation of debts of individuals in situations of economic vulnerability. Although the bank attended the hearing scheduled, with a lawyer and agent with negotiating powers, it did not present a concrete payment proposal. The lower court, understanding that this conduct hindered the purpose of the hearing, imposed the penalties provided for in Paragraph 2 of Article 104-A by analogy, including the suspension of debt enforceability, and the compulsory submission to the payment plan proposed by the debtor. The decision was upheld by the Court of Appeals of Rio Grande do Sul.
STJ, however, granted the special appeal and reaffirmed the exceptional nature of the imposition of sanctions within the scope of over-indebtedness hearings. According to the reporting justice’s opinion, drawn up by Justice Ricardo Villas Bôas Cueva, the legislation imposes on the consumer the duty to produce a viable payment plan, with creditors only having the obligation to appear with powers to settle the claims. The absence of a renegotiation proposal, by itself, neither stands as a violation of the law, nor does it automatically authorize the imposition of penalties.
The reporting justice asserted that “the legal system does not require creditors to accept the debtor’s proposal or to point out alternative terms, since the legal solution to the lack of agreement is the submission to the judicial phase, with review and closing of the gaps of contracts.” The appellate decision also assures that the extensive interpretation of the penalties provided for in the Consumer Protection Code (CDC) should be avoided, under penalty of breaching the principle of legality and jeopardizing legal certainty in pre-procedural negotiations.
Justice Nancy Andrighi cast a dissenting opinion, arguing that the creditor’s conduct — although according to the norms — breached the duties of objective good faith and cooperation, backbones of the consumer microsystem. For Andrighi, the attendance without an effective statement of will concerning the business transaction, in practice, was equivalent to the refusal to participate in the hearing, thus warranting the imposition of legal sanctions.
The winning thesis, however, rejects this reasoning and preserves the objective limits of the legal wording. Although it recognizes the importance of the principles underlying the renegotiation procedure, the full court emphasized that their application cannot replace the literal rules. Moreover, it was also asserted that the judge remains authorized to take protective measures, provided that they are based on concrete elements of the case record and observe the due process of law.
The precedent established helps consolidate a coherent and predictable caselaw relating to over-indebtedness, balancing the relationship between the protection of consumer dignity and the legal certainty of financial institutions. While underlining the need for good faith and cooperation in the negotiation process, STJ warns of the risks of interpretations that go beyond legal limits and convert conciliatory hearings into arenas for the unilateral imposition of obligations.
In sum, it is a decision that strengthens the rationality of the system and signals to the Court System the importance of acting as a guarantor of legality, especially in a context of increasing judicialization of consumer relations, and expansion of remedies aimed at preserving the absolute minimum rights of the debtor.
Available in: https://www.conjur.com.br/2025-mai-18/aplicacao-de-sancoes-no-ambito-das-audiencias-de-superendividamento/
Autor: Daniel Feitosa Naruto • email: daniel.naruto@ernestoborges.com.br • Tel.: +55 67 3389 0123
