The text deals with the strategies judicial and out-of-court debt, highlighting the challenges, the practice, and the impact of the legal in Brazil.
The increase in Brazil, it is an issue that affects millions of people and businesses, and its origin can be traced to a combination of factors, the economic, the social and the individual, such as an increase in the cost of living, unemployment, and the poor management of finance. Today, there are more than 70 millions of people are in debt, highlighting the need to adopt effective measures to prevent and cope up with this problem.
In this context, the recovery of the loan comes as a set of strategies they have adopted to pursue the payment of the debt. It is a process that is used when one of the parties to an agreement that does not comply with its obligations stated. The debt may be divided into two main types:
- Recovery of out-of-court
The recovery of out-it involves the attempt to recover the amount owed, without resorting to the Legal system. This may involve direct negotiations, agreements, user-friendly, push notifications, judicial, or to protest, and security offices. This method is often preferred because it is less expensive and more responsive compared to the court process, and to preserve the business relationship between the parties involved.
Examples of instruments that are used in the recovery of out-of-court include the following:
Extra-judicial notices: – The borrower is notified of the formally about the debt, and made in live,
the Renegotiation of the debt, The parties will be able to see the deadlines, and the values or conditions for the payment, to facilitate the discharge of the charge;
to Protest at the registrar’s office: and The creditor is entitled to register a protest of an information in the registry, which can lead to restrictions on loan to the debtor, to encourage the payment.
The recovery of out-of-court, has the advantage of being less expensive, and less bureaucracy, in addition to safeguarding the privacy of the parties involved. However, their effectiveness depends on the willingness of the debtor to negotiate with the creditor, you should consider its use, given the fact that the actions-court does not have the effect of suspending the time limit for prescrição1.
- Judicial settlement
When all the attempts to take out-of-court will not produce the desired results, then the lender may choose to opt for the recovery of the courts. This process requires the intervention of the judicial system, and it is more formal and complex, making it necessary for the fulfillment of the terms and conditions established in the laws.
The role of a lawyer is essential in this process, representing the lender to the european Court of Justice, by ensuring that all legal requirements are met and to develop legal strategies that are effective for maximising the chances of success. In the following, we will highlight the major lawsuits for the recovery of the loan:
The action of the running
The action is used, if the creditor has an enforceable – that is, a document, which shows clearly the existence of the debt, and it allows you to charge immediately. The procedure, from outros2, include the following:
- Scriptures in public
- Duplicates;
- The contracts signed by two witnesses;
- A certificate of liability;
- Contract for attorney’s fees.
In this type of action, the plaintiff entered into the court, boasting the title of the executive, which would require the enforcement of the debt. The debtor is referred to, so that, within a period of three days, and then pay all amounts due, or to comply with the obligation laid down. If not, the judge may order the seizure of property of the debtor in order to satisfy the debt.
The debtor has the right to present a defense, arguing, for example, that the debt has been paid, or that the information is not required.
Action-monitoring
The action of monitoring is a legal tool that is aimed at the recovery of the debt, if the creditor does not have a writ of execution, but it has a written exam that demonstrates the existence of an obligation. This is especially useful in situations where there is a debt that is documented in formal, or in a document which, by itself, does not constitute a writ of execution.
In order to join in with the action of monitoring, the plaintiff must provide the court with documents that prove the existence of the debt, in addition to the calculation of the amount due. If the court finds that the documents are sufficient, it issues an order for payment, the order directing the debtor to pay the debt, or to present their defence within the stipulated time period.
If the debtor fails to respond, or to pay the debt, at the commandment of the payment becomes a writ of court, allowing the creditor to bring an action for enforcement.
The action of the charge
The action of the charge is the legal process by the rite of the joint, which is used when there is not an enforceable document, or the documents available do not allow for the use of other procedures that are faster, such as action monitoring. This type of action allows for greater production of evidence, and the defense, on the other hand, tends to be more time-consuming and expensive.
In spite of its length, by the action of the charge, is often the only option in cases in which, for example, the time limit for the execution of the cheque, or promissory note has already prescribed, making it impossible for you to run to the title. The art. 785 the CPC3 that, even after the statute of limitations for the execution of a writ of execution, to be filed with a collection action.
In the process, the plaintiff must prove the existence of a debt by means of documents and witnesses. The debtor, in turn, challenge the speed, producing some of its own tests. After the investigation, the judge will issue a judgment in determining the payment of the debt, if the creditor is successful.
- The risk of improper charging
The charge of improper recovery of a loan you can create a number of risks and consequences, legal, financial, and reputation, to the lender.
First of all, it should be noted the moral and material damage. When the lender carries out a billing error, it cannot be held responsible or liable for those kinds of damages. Of the debtor, and if you feel wronged or feel uncomfortable for being charged with a debt does not exist or has been paid, you can file a claim for compensation for pain and suffering.
Another significant point is the fines and penalties of the law. In Brazil, the united states, protects the consumer against unfair practices, including the collection unintended use. According to the art. 42 of the CDC4, the case is made of a collection of the debt does not exist or is greater than the amount actually due, the customer is entitled to a repeat of the debt, that is to say, the return of double the amount unduly paid, together with interest rates and inflation. In addition, the improper charging is carried out so as to be unfair or upsetting, the creditor is entitled to sanctions and other administrative penalties imposed by the consumer reporting agencies.
Therefore, just be careful is the key.
Final thoughts
In addition to the measures of judicial and extrajudicial documents referred to above, it is critical that companies and creditors to take action in advance to prevent a breach, such as the careful design of the clauses in contracts with clear and specific information about the bonds of money, in addition to the application, the tools that assist in the management of credit and collection. Invest in prevention strategies, such as regular visits to the credit bureaus, and financial monitoring of the clients, it can significantly reduce the risk of non-payment.
1 the Period specified by the law that a creditor has the right to require the court in the performance of an obligation, the payment of a debt. After the expiration of that period, the right to sue in court against the obligor is extinguished, preventing the person to seek a remedy by way of Righteousness, even if your credit is still there. That is, the creditor is entitled to require the court to the satisfaction of his credit.
2 Art. 784 of the civil procedure code.
3 Art. 785. The existence of a writ of execution out-of-court does not preclude a party to follow the learning process in order to obtain enforcement of a court.
4 Art. 42. In the collection of the debt, the consumer is in default shall not be exposed to ridicule, not to be subjected to any kind of coercion or threat.
https://www.migalhas.com.br/depeso/421996/recuperacao-de-credito-meios-juridicos-e-prevencao-da-inadimplencia