Post by messi23 on Mar 12, 2024 21:53:25 GMT -6
If the defendant paid of a consortium it is not reasonable to seize the asset due to default. This was understood by the majority of members of the th civil chamber of the court of justice of rio grande do sul when revoking an injunction that granted the search and seizure of a car. The first instance had granted the injunction to the financial institution that owned the consortium. Afterwards the car buyer was ordered to pay the remainder of the debt if he wanted. If he did the car would be returned. But the debtor decided to appeal against the injunction to seize the car requesting the dismissal of the action.
The rapporteur of the appeal judge míriam tondo Germany Phone Number fernandes revoked the injunction as she understood that she was facing a "Substantial compliance with the contract". After all the debtor had already paid of the contracted installments as indicated in the consolidated consultation of the bank's consortium system. For installments not paid at the end of the contract she considered the creditor could resort to collection action. To illustrate her understanding the judge cited a precedent from the superior court of justice which stated: "If the ordinary courts recognize after the assessment of consignment and search and seizure actions based on the evidence in the case that the balance remaining in favor of the creditor of the fiduciary alienation contract the continuation of the search and seizure action is not justified.
The rapporteur was followed by judge judith dos santos mottecy president of the collegiate forming the majority. Dissenting vote judge mário crespo brum disagreed with his colleagues as he understood that the nd section of the stj when judging re ..-mg in february had already recognized that the theory of substantial performance does not apply to guaranteed contracts by fiduciary alienation clause. This is because it is a legal institute with its own discipline which attracts the application of the civil code in a subsidiary way. According to brum although this judgment was not subject to the repetitive appeals regime it constitutes a "Robust indication" of the jurisprudential guidance of that higher court. Therefore in his view it is not possible to consider revoking an injunction on such grounds.
The rapporteur of the appeal judge míriam tondo Germany Phone Number fernandes revoked the injunction as she understood that she was facing a "Substantial compliance with the contract". After all the debtor had already paid of the contracted installments as indicated in the consolidated consultation of the bank's consortium system. For installments not paid at the end of the contract she considered the creditor could resort to collection action. To illustrate her understanding the judge cited a precedent from the superior court of justice which stated: "If the ordinary courts recognize after the assessment of consignment and search and seizure actions based on the evidence in the case that the balance remaining in favor of the creditor of the fiduciary alienation contract the continuation of the search and seizure action is not justified.
The rapporteur was followed by judge judith dos santos mottecy president of the collegiate forming the majority. Dissenting vote judge mário crespo brum disagreed with his colleagues as he understood that the nd section of the stj when judging re ..-mg in february had already recognized that the theory of substantial performance does not apply to guaranteed contracts by fiduciary alienation clause. This is because it is a legal institute with its own discipline which attracts the application of the civil code in a subsidiary way. According to brum although this judgment was not subject to the repetitive appeals regime it constitutes a "Robust indication" of the jurisprudential guidance of that higher court. Therefore in his view it is not possible to consider revoking an injunction on such grounds.