The Superior Court of Justice (STJ) has ruled that failure to appear at a hearing during the conciliation phase of debt renegotiation subjects the creditor to penalties.
The Third Panel of the Superior Court of Justice (STJ) ruled that the sanctions provided for in Article 104-A, paragraph 2, of the Consumer Protection Code (CDC) apply in cases of unjustified non-attendance by the creditor at a conciliation hearing held in the pre-trial phase of a debt renegotiation process, regardless of whether a contentious judicial process has already been initiated.
The case reached the STJ after the court of origin upheld the penalty imposed on a bank for failing to attend, without justification, a conciliation hearing scheduled in the consensual phase of a debt renegotiation process. In its special appeal, the financial institution argued that the sanctions for non-attendance at the conciliation hearing could not be applied in the pre-trial phase.
Legal Provision for Sanctions in the Conciliation Phase
The rapporteur, Minister Ricardo Villas Bôas Cueva, explained that the process for addressing over-indebtedness is divided into two phases: the first is called consensual or pre-procedural, and the second is contentious or procedural. As he highlighted, the first phase begins with the request submitted by the consumer, according to the main clause of article 104-A of the Consumer Protection Code (CDC).
The minister emphasized that the expression “process” was used by the legislator in the provision in its broad sense, and should not be restricted to the legal relationship established between the parties and the State-judge.
In this sense, the rapporteur acknowledged that, although the request provided for in article 104-A of the CDC does not have the legal nature of an initial petition and is limited to initiating a pre-procedural phase, paragraph 2 of this provision expressly provides for sanctions for the conciliation phase, as is the case in these proceedings. According to him, among the sanctions are the suspension of the enforceability of the debt and the interruption of late payment charges.
Appearance demonstrates objective good faith
. “It is undeniable that no one is obligated to conciliate. However, the legal imposition of the duty to attend the conciliation hearing scheduled in the first phase of the process is beneficial,” the minister emphasized, noting that this attendance is an ancillary duty of the contract and stems from the principle of objective good faith.
Finally, Villas Bôas Cueva emphasized that financial institutions are responsible for over-indebtedness, especially when there is a violation of the duties of transparency and adequate information to consumers.
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