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Thousands of people and businesses are drowning in debt that, inflated by increases in interest, fines and monetary correction, became absolutely not payable.
 
The debtors who are scared and living in such conditions, always fearful of the official visit of justice, avoid bank in banks, buy shares and other financial transactions, afraid blocking order. When buying a property or car, always put them on behalf of children, relatives and even of friends, as a way to circumvent the inevitable attachment.
 
However, in case of death of the debtor, or the persons whose names were used to transfer a property, vehicle or actions, the problem extends to the heirs of one side or another, promoting the legal demands that they not ever.
 
The most interesting of all is the fault of the incredible debt ratios are not always the debtor. And the greed of the creditor can change the entire framework of your right.
 
Because in most cases these debts are so large or so. It is the creditor, especially banks, are adding to debt, contractual interest, default interest, monetary correction, fines, contract committee of residence and fees of lawyers, among other expenses, and debt will grow in a progression that is absolutely priceless .
 
If the debtor has a property other than their country of residence, the creditor uses the strength of law and attachment. The building is square and when the finisher is the value found is not sufficient to remove the debt then the debtor losing their property and should continue.
 
The result is that the debtor is an individual unproductive, acuado, and slowly pressed vai feeling discouraged, and without courage unable to carry out their life in society and their family life.
 
The stress caused by this state of anguish, when extended, also has harmful consequences for health. It's high pressure, lack of sleep, fatigue and depression.
 
But the important in all this is that these problems have solutions, sometimes simple and quick. In thousands of cases that came to court the amounts charged are unfair, because the contract or by reason of the improper application of interest, or the insertion of fine or not applicable to the recovery of values greater than the due.
 
In many cases, the capitalization is inappropriate, not the interest is cumulative and monthly application of fines, penalties or interest on, by absurd, are extirpated from the spreadsheet calculations by the judge.
 
As recent decisions of the courts to fine and interest arrears are not payable if found abusive clause in contract or recovery of undue plots. Also the committee to stay can only be charged when not in addition to monetary correction, fines and interest and attorneys' fees shall be proportional and compensated when any portion is improperly charged.
 
Some creditors, mainly banks, recognizing the vulnerability of their accounts and intends to raise the balance of the facility, arrange with the debtor a "confession of debt", which among other flat, sets the value of debt.
 
The idea is that the confession of the debt to avoid the review of accounts and the original contract, with unfair or not, and previous operations. It was an attempt to erase the past and let the end, it remains legitimate and explicitly recognized the value of debt confessed.
 
Fortunately, the courts have changed the understanding and now the confessions of debt no longer inhibit the review of old accounts and everything can be challenged and changed in the judicial phase.
 
However, aside these legal details, the intriguing thing is that a debt charged to all penduricalhos, legal and illegal, could double in less than 08 months. And as the calculations when processing the regular capitalization of debt within five years, a debt of $ 1000.00 can turn into a debt of $ 128,000.00 or more, if originating from a credit card .
 
Important to note that this calculation is not considering any index of monetary adjustment, is only the nominal value of debt. If the application of monetary correction, depending on the index used, the total debt of $ 1000.00 could reach more than $ 180,000.00 in five years.
 
In summary, the delay of a debt of $ 1,000.00, with interest rates currently charged by banks, and numerous forms of increased interest, fines, capitalization, residence fees, attorneys fees and legal expenses, in view of the creditor, can increase by up to 180 times.
 
The courts are also attentive to these types of abuses and hundreds of court decisions have changed profoundly changed this scenario and these numbers.
 
The debtor, therefore, first of all, to fully adopt the formulas of calculation dictated by law and then, well based in law, in court seeking recognition of the real value of its debt.
 
Vale also negotiate with the creditor the amount and form of payment to look more fair to both parties.
 
For information it is good say that many legal agreements with individuals or companies debt and credit, private and official, have been traded in amounts that on average, represent less than ten percent of the amount originally charged.
 
Indeed this reality afflicting not only the debtors bank, but all others, including the tax debt that in some cases, get to suffer more serious and absurd pressures than those managed by banks, with an aggravating factor: almost always can give rise to a criminal action for the denial.
 
Therefore, without doubt, the debt should always be faced without fear and without stress, only then can no longer be a nightmare and that its correct determination could render effective benefits for the debtors and, of course, also for the creditors who may recover some of the claims already considered lost.
 
 
The Jurisprudence of the Courts:
 
 
Case in AgRg Resp 767,771 / RS
Regimental TORT REMEDY IN SPECIAL 2005/0119083-0
Rapporteur (a) Minister SCARTEZZINI JORGE (1113)
Body judge T4 - Fourth TURMA
Trial date of 05/09/2006
Date of Publication / Source DJ 20.11.2006 p. 325
Abstract:
CIVIL PROCEDURE - APPEALS SPECIAL - Regimental TORT - CONTRACT - Sale Fiduciary - CODE OF CONSUMER PROTECTION - FINANCIAL INSTITUTIONS - APPLICABILITY - revisional ACTION - UNFAIR TERMS - COMMISSION OF STAY - monetary adjustment, interest payment, default interest and fine CONTRACT - INACUMULATIVIDADE - ITS SUMMARY 30, 294 E 296/STJ - lacking.
1 - Regarding the review of contract, legislation consumerista, applicable to the species, allows to meet the provision is in Action revisional jurisdiction of banking contract, express themselves on the court of any unfair terms, which has relativise by the principle of pacta sunt servanda. Thus, as this Court reiterated jurisprudence, it is a review of all contracts with financial institution, from the origin, even if they are renegotiated. Precedents.
2 - The committee's permanent collection, the Eg. Second Section of this Court has already established position in order to be lawful its recovery after the maturity of debt, should be observed the average rate of interest of the market, established by the Central Bank of Brazil, is not admissible, however, is combined with the correction money, with interest salary, or with fine or default interest. Summary of Impact 30, 294 and 296 of the STJ.
Precedents (699.181/MG Resp, Resp AgRg paragraphs 688.627/RS and 712.801/RS). Given the forecast of fine contract and default interest for delay in payment, the proper sealing of the committee's permanent collection.
6 - further regimental lacking.
 
 
 
Case Resp 713,329 / RS 2004/0182894-9 SPECIAL APPEALS
Rapporteur (a) Minister PARGENDLER ARI (1104)
Rapporteur (a) p / Judgment Minister CARLOS ALBERTO MENEZES LAW (1108)
Body judge S2 - Second Section
Date of Julgamento23/08/2006
Date of Publication / Source DJ 07.12.2006 p. 270
Abstract:
Action revisional contracts of open credit account-current, the discount securities and refinancing. Mora. Illegal charges.
1. Characterized the recovery by the financial institution, part of abuse, only left allowed the effects of delay after found the exact value of the flow, away, in case the penalty moratorium.
2. Special feature of the seat provided by a majority to a lesser extent, and use the client did not know
 
 
Case in AgRg Resp 896,269 / RS Regimental TORT IN SPECIAL APPEALS
2006/0228799-8
Rapporteur (a) Minister Humberto Gomes de Barros (1096)
Body judge T3 - Third TURMA
Trial date of 06/12/2007
Date of Publication / Source DJ 18.12.2007 p. 271
Abstract:
CONTRACT BANKING. COMMISSION OF STAY. CUMULATION. INABILITY. CAPITALIZING MONTHLY interest. ITS SUMMARY 182. MORA OF adulteration. ILLEGAL TAXES. MAINTENANCE HELD. REGISTRATION BODIES IN THE PROTECTION OF CREDIT. REQUIREMENTS. Repetition of INDÉBITO. POSSIBILITY. FILING ORDER. AUTHORIZATION.
- Impossible in banking contracts, the cumulative recovery of the committee to stay with pay interest, monetary correction, arrears and contractual fine.
- "It is impossible to further the Article 545 of the Code not specifically attack the foundations of decision worse."
- A simple collection of illegal taxes weakened to live.
Excluded the occurrence of arrears, the property must be maintained in possession of the debtor.
- To prevent their entry in entries restrictive credit the debtor must prove the requirements established by law (Resp 527.618/CÉSAR).
- Who receives payment shall return it, to avoid unjust enrichment. Whether there was error in payment.
- You can deposit the uncontroversial part of the debt, which made possible the completion of the settlement award.
 
 
Case in EDcl Resp 937,530 / PR EMBARGO ON DECLARATION OF APPEALS SPECIAL 2007/0069373-8
Rapporteur (a) Minister HÉLIO Quaglia BARBOSA (1127)
Body judge T4 - Fourth TURMA
Trial date of 20/09/2007
Date of Publication / Source DJ 08.10.2007 p. 310
Abstract:
SPECIAL APPEALS. CIVIL. EMBARGOED FOR DECLARATION RECEIVED AS TORT Regimental. RECURSAL marketability. ANNUAL CAP
INTEREST. IMPACT OF ITS SUMMARY No S. 05 AND 07 OF STJ 1. As for capitalizing on an annual basis considers the case law in this Court that the consolidated bank signed contracts with financial institutions is possible the impact of the capitalization of interest on an annual basis, provided they agreed (Resp 590563/RS, Fourth Class, Rel Min Barros Monteiro , DJ from 20/3/2006; AgRg in Resp 682704/RS, Third Class, Rel Min Carlos Alberto Menezes Law, DJ of 7/11/2005).
In case there is no proof of this condition, so should not be allowed the incidence of annual funding.
2. Declaratory embargos received as regimental disease, and
improve this.
 
 
 
 
 
 
Debts not payable
 
 
 
Summary:
 
 
It is known that inflation has been contained since a few years ago, but interest rates are still huge.
 
Nevertheless the supply of credit by banks still increasing pace.
 
Meanwhile, thousands of people and companies are mired in debt, whose values have been accumulated and reached a point where it became absolutely not payable.
 
The debtors continue without direction, increasing the executions until the court has not yet a way to resolve the default.
 
So the question is:
 
 
 
 
 
What makes these debts grow so quickly?
 
 
Answer:
What happens is that banks and creditors in general, want to get their claims with all the initial advantages. Ie to pay the interest on capital, with the default interest for delay in payment, with the upgrade money, with the contractual fines and worse, the committee called to stay. And that, combined, and capitalized, that is established for each month and on the values established charged more interest, fines and repair, becomes a snowball and it is really a debt absolutely priceless.
 
 
There is a legal possibility to question these claims, even when they are already in court with orders attachment of property?
 
Answer:
Without any doubt. It is perfectly possible to discuss these claims in court, before or after you started running.
In most cases there are undue charges, fines, fees or interest abusive, improper capitalization, among other vices.
In many cases the very terms of the loan is unfair.
What is the debtor can not be stopped, inert, and agree with the abuse.
 
 
What would be an unfair term in the contract of loan or financing?
 
Answer:
A clause is patently unfair to overlapping of interest and monetary correction fine with the committee to stay. The case law of higher courts have determined that the committee stay, when charged by bank is legal, but can not be accumulated with interest, monetary correction and fines. Plus, not fixed by the bank, even contractual, but should be found considering the average rate of interest of the market, established by the Central Bank of Brazil.
 
In this case, if estimates committee on contract to stay, the creditor will choose to stay or the commission of correction, interest and penalties.
 
Another very interesting aspect is the impact of the fine. If the creditor is the fine option, that is no longer charged the committee to remain, the fine should be proportionate to the contract that was not met.
 
For example, if the fine is levied on the value of the contract and the debtor has paid 50% of the outstanding fines will also be reduced by 50%, or just focus on the remaining value of the debt without interest. (interest only come after and not focus on the fine).
 
 
For the debtor to defend himself in court is necessary to deposit the outstanding amount?
 
Answer:
Except in tax enforcement, which is governed by the procedural rule in bank liabilities arising from business or common law, since there is no requirement to deposit the amount of debt, or provide goods the attachment so that the embargo can run the implementation.
 
In some cases the debtor may even be anticipating the implementation and assess a declaratory action for the enforcement desconstituir. And in cases where the application contains or is prescribed defect, the debtor may make an exception for pre-executing, which is a quick way of defense in special cases.
 
 
How much time prescribe the debts?
 
Answer:
For debts incurred before the term of the new civil code was the period of 20 years and the debts incurred after the period is 10 years and more, in some cases must be observed in the transitional rule.
 
Therefore, the cases should be examined in light of their documents and can not be generalized.
 
But just to illustrate it is good to note that the debts of Law staff, for example, provided with 10 years from the date of maturity of the bond.
 
Already the currency debts of character, such as promissory notes and other, specified in 03 years from the date of maturity, as established in LUG - Uniform Law of Geneva.
 
Moreover, even if the exchange has implemented ongoing and the creditor to stop the process for a period exceeding three years, without requiring any provision for its continuation, at the prescription intercurrent.
 
But it is important, which is prescribed to get the opportunity to receive the credit through execution, not the common form, called a "process of knowledge" or "activity monitor".
 
The check, for example, no longer check and can no longer be compensated or paid by the bank after six months from the date of expiry of the deadline for submission, but may be charged by way of action or the action of monitoring locupletamento which are different forms of recovery and that met certain procedural formalities, may reach the same place.
 
 
 
The limitation period for the guarantor in the promissory note is the same as the principal debtor?
 
 
Answer:
No. The limitation period for the guarantee, if you have not signed any contract to the party and has not benefited from the outcome of the debt, will be only 03 years.
 
This is because the exchange value of the promissory note disappears and the limitation period is only the creditor to seek receive the principal debtor, through the action of knowledge on the grounds of Law staff.
 
Thus, the creditor may not include the debtor in an action for recovery of credit requirements, because the figure of the guarantor is merely change, ie, prevails only in the way of credit and not for the debtor.
 
But care should not be confused with guarantor guarantor, two different legal figures. These considerations is not addressing the legal figure of the guarantor, but only, of the guarantor.
 
Guarantor is one who signs in the way of credit document as guarantor of that exchange and not sign any contract beyond the title. Guarantor is one who signs a contract as a guarantor of debt, or the commitments, the responsibility of the bailed.