The Second Section of the STJ (Superior Court of Justice) will attempt to pacify the Judiciary's understanding of actions involving the granting of a consignee's card and the possibility of automatic conviction for moral damages in the event of annulment of these contracts.
Since March, the processing of cases dealing with these issues across the country has been suspended, by court decision. Now, the controversy will be analyzed by the court under the rite of repetitive appeals, that is, there will be a decision that will serve as a parameter for all similar cases.
There is still no date for the trial. The discussion (topic 1,414) has Minister Raul Araújo as rapporteur.
The cases refer to consumers who say they sought out financial institutions to acquire a payroll loan (with payroll deduction), but ended up linked to a payroll credit card. In this model, the amount deducted from the payroll does not correspond to a loan installment, but to the minimum payment on the card bill.
As this amount usually pays off only the interest, without repaying the principal, it ends up generating an "infinite debt", according to the allegations. On paychecks, these charges appear as RMC (Consignable Margin Reserve) and RCC (Consigned Card Reserve).
STJ ministers want to define objective parameters for analyzing the validity and possible abusive nature of these contracts, observing the duty to provide sufficient, clear and adequate information.
They will also evaluate the issue of the indefinite extension of the debt, given the apparent insufficiency of monthly discounts for amortization, according to the court.
According to the reporting minister, the issue has already been the subject of analysis in seven state courts that attempted to standardize the understanding on the issue, but reached opposite conclusions regarding the discussion. Therefore, the STJ wants to pacify the understanding of the Judiciary.
The discussion is connected to another issue under the same report, which will seek to assess whether there is presumed moral damage (or in re ipsa) in the event of invalidation of the contracting of a credit card assigned as a social security benefit (topic 1,328). There are courts that understand that this damage must be proven and others that consider that it should be presumed.
PRESUMED MORAL DAMAGE
Leandro Vilain, CEO of ABBC (Brazilian Banks Association), says that the entity's main concern is the issue of presumed moral damage. In the executive's assessment, this has encouraged predatory litigation against financial institutions.
According to him, there are lawyers who use false documents to file these actions and then keep the amounts that should be passed on to their clients.
"We have to combat predatory litigation", says the executive. "There is a bad practice that needs to be separated from due litigation, which is a consumer right and must be preserved."
Felipe Natale, Legal and Legislative Director at ABBC, states that the entity identified among its members that 30% of cases against these financial institutions are related to predatory litigation – also considering other topics.
According to him, even if there is a decision not to apply presumed moral damage, this will not exempt financial institutions from liability. "They will continue to be responsible whenever there is concrete damage against a specific client."
Idec (Brazilian Consumer Protection Institute), which will act on the case in question with the STJ, states that the presumed moral damage has a pedagogical function.
Walder Moura, Idec's lawyer in Brasília, says that, without this mechanism, there would be an incentive to promote abuses related to payroll loans, as the bank would not be punished, and the consumer would be left without any redress, only the debt issue would be resolved.
For him, forcing the customer to prove the damage is a reversal of the burden of proof that is in the Consumer Protection Code. He adds that presumption occurs in situations where the damage caused is indisputable.
"It's such an illegal situation that we no longer discuss [the damage]. Credit providers simply shouldn't let this happen to consumers," he says.
The institute's lawyer also says that the allegation of abusive litigation cannot affect consumer rights.
"The Judiciary cannot deny citizens' rights by claiming that many people will go to court, including fraudsters. There is abusive litigation, but just because there are lawyers who have committed fraud does not mean that I will disable all consumer rights."
Febraban (Brazilian Federation of Banks), which is also a party to the STJ's action, states that this product follows procedures set out in its regulation, such as the need for the consumer to sign a form containing information, clearly and precisely, certifying that the contracted product is a credit card.
"When contracting, all information related to the product is passed on to the consumer, which makes them certain that they have contracted a credit card," says the entity.
According to Febraban, any irregularities must be verified in the specific case, for example, assessing whether the information was provided to the consumer, whether the consumer accepted the terms of the contract and whether the contract was provided to him. Only if one of these obligations is not fulfilled can moral damage be caused, says the federation.
"Febraban maintains that there is no presumed moral damage in the eventual invalidation of the consigned card contract. Furthermore, it warns that any establishment of a thesis that characterizes compensation for moral damage as presumed will encourage abusive litigation and cause a true 'stock industry', as the authors of these demands will only be able to allege the non-contracting without the need to prove the moral damage."
