The fiduciary sale of a vehicle and the risks of default
Fiduciary property was established by Brazilian law with the purpose of reinforcing the guarantee provided in financing, ensuring the fiduciary creditor (most often financial institutions), in the event of default by the fiduciary debtor, the recovery of the credit granted more quickly. it is efficient.
Through this type of guarantee, the debtor becomes a mere direct owner of the asset, while the creditor is granted indirect possession, which means that the property is not immediately transferred to the person who signed up for the financing, but rather reserved to the person who granted it. credit (resolvable domain). The measure, in addition to mitigating the risks of default, also prevents the fiduciary alienated property from being accessed by third parties, especially other creditors of the fiduciary debtor.
Only in the event of discharge of contractual B2B Lead obligations, notably payment of the entire financing installments, is the asset finally transferred to the debtor. Otherwise, the property will be consolidated in favor of the creditor.
For these reasons, especially in banking operations, fiduciary alienation has become considerably more advantageous and common, so that doubts, as a rule, involve the procedure for executing the guarantee and the risks arising from possible default, especially in contracts that have by object the financing of vehicles, the insolvency rate of which is significant.
Decree-Law 911, of October 1, 1969, changed the wording of article 66, of Law 4,728, of July 14, 1965, and, subsequently, federal laws 10,931, of August 2, 2004, and 13,043 , of November 2014, established rules regarding the fiduciary alienation procedure, which facilitate the consolidation of the guarantee by the creditor.
In summary, the procedure consists, firstly, in the debtor's formal communication regarding his default, by sending a registered letter with acknowledgment of receipt to his home address, included in the contract or in his updated registration, in accordance with paragraph 2nd of article 2 of DL 911/69. Personal notification of the debtor is no longer required, simply delivering the correspondence to the correct address.
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Once notified, the debtor is entitled to pay the overdue installments plus charges, thus reestablishing compliance. If the delay is not eliminated, the law authorizes the creditor to consider, by right, all contractual obligations as having expired (full anticipation of the contract), regardless of new notice or notification.
Once the default has not been cleared (article 3 of the DL), the creditor may request the search and seizure of the asset sold on fiduciary basis. Although, in practice, financial institutions normally wait for the due date of three consecutive installments (or 90 days) to then search and seize the vehicle, the legislation does not provide for a minimum period or number of outstanding installments as.
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