The 3rd Panel of the Superior Court of Justice (STJ) reaffirmed a key understanding for the real estate and financial markets: a creditor of a debt secured by a fiduciary transfer of title is not required to follow the extrajudicial auction procedure (Law 9,514/97) before seeking judicial enforcement of the amount owed.
Freedom of choice for the creditor
The decision clarifies that, although Law 9,514/97 sets out an extrajudicial procedure for the consolidation of title and sale of the property, the creditor still has the option to pursue direct judicial enforcement.
This route is allowed as long as the agreement qualifies as an enforceable executive instrument that is liquid, certain, and due. According to the reporting Justice, Humberto Martins, this choice may even benefit the debtor, since judicial proceedings provide broader opportunities for adversarial argument and evidence production when compared to the administrative procedure carried out by notary offices.
Validity of the CDI Rate
Another relevant aspect of the ruling (Special Appeal No. 1,978,188) concerns the validity of the CDI rate as an index for remunerative interest. The court held that:
- The CDI is a market-defined index and is not subject to unilateral manipulation by the financial institution.
- Its use is widely accepted in banking transactions and is not, in itself, considered abusive.
What changes in practice?
For companies and financial institutions, the decision ensures greater legal certainty and strategic flexibility. It becomes possible to assess, on a case‑by‑case basis, whether repossessing the property through the extrajudicial procedure is more advantageous or whether pursuing judicial enforcement against the debtor’s entire estate is the fastest route to satisfying the credit.