TST authorizes blocking of credit card of labor debtor

The decision is the first precedent of the Specialized Subsection II for Individual Disputes (SDI-2) in favor of the application of atypical measures.
 

The Specialized Subsection II for Individual Disputes (SDI-2) of the Superior Labor Court (TST) ordered the suspension of a debtor's credit cards and prohibited the issuance of new ones until the debt is fully paid off. This is the court's first precedent for applying this atypical measure in labor enforcement (collection).

The possibility of adopting atypical measures – which may also include blocking a National Driver's License (CNH) and passport – is provided for in article 139, section IV, of the 2015 Code of Civil Procedure (CPC). The provision has already been considered constitutional by the Federal Supreme Court (STF).

In February, the Supreme Federal Court ministers ruled that the application of these coercive measures was valid, as long as they did not encroach on fundamental rights and observed the principles of proportionality and reasonableness (ADI 5941).

It is necessary to have proof that the debtor is disobeying a court decision”
— Tomaz Nina

In the case heard by SDI-2, the order to suspend credit cards and prohibit the issuance of new ones was considered reasonable given the circumstances. Currently, in the Labor Court, approximately seven thousand cases are discussing the adoption of this measure, according to a survey conducted by the jurimetrics firm Data Lawyer.

The same panel had already ruled, in three other cases, that credit card suspensions were not possible. The matter may still be heard by the SDI-1, which standardizes the jurisprudence of the TST panels and has a different composition. Within the panels, the TST's Jurisprudence Coordination Office located five decisions, which analyzed only procedural issues, without delving into the merits.

During the ruling, the justices of the SDI-2 Court emphasized that the case is not merely a matter of insolvency. They took into account that the labor claim has been pending for five years, and during that time, all the usual enforcement measures have been attempted, unsuccessfully—seizure requests and registration in defaulters' registries, among others.

According to them, the debtor has expressed no interest in paying the debt. "The debtor's inaction raises the possibility of adopting an atypical measure, which could, therefore, encourage his interest in seeking alternatives to fulfill the obligation," states the reporting judge, Justice Luiz José Dezena da Silva (ROT-838-97.2022.5.09.0000).

In the decision, the rapporteur emphasizes that the Supreme Federal Court (STF) recognized the validity of the provision authorizing coercive, inductive, or subrogatory measures aimed at ensuring the effectiveness of a court decision. Furthermore, the Superior Labor Court (TST) case law already permitted their adoption, provided the judge had observed the necessary parameters of adequacy, reasonableness, and proportionality of these measures in light of the causes leading to the debtor's insolvency.

The TST's case law, he adds, understands that the mere insolvency of the debtor is not enough to authorize the use of atypical enforcement measures based on article 139, IV, of the 2015 CPC. "The specific case, however, does not portray the situation that the coercive act arose from mere insolvency", says the rapporteur.

In April, the justices of the SDI-2 denied a request to freeze credit cards and suspend the driver's licenses of debtors. The judges unanimously followed the vote of the reporting judge, Justice Douglas Alencar Rodrigues.
Para ele, essas medidas só devem ser aplicadas em caráter excepcional ou subsidiário, quando as vias típicas [de execução] não viabilizarem a satisfação do crédito – tentativas de bloqueio de dinheiro, automóvel, imóvel ou outros bens.

Furthermore, the rapporteur states in his vote, it must be clear that assets are concealed and that the debtor has the means to repay the debt, "given the existence of outward signs of wealth." In the case under judgment, according to the minister, these requirements were not met (ROT-1087-82.2021.5.09.0000).

According to Tomaz Nina, a labor lawyer and partner at Advocacia Maciel, the SDI-2 had already indicated that credit cards can be blocked when the defendant refuses to effectively pay a labor debt. "It's not a common measure; there needs to be proof that the debtor is disobeying a court order," he states.

Attorney Ricardo Calcini, from Chiode Minicucci Advogados – Littler Global, explains that blocking cards makes access to credit more difficult and, therefore, has the same objective as protesting a court decision and including the defendant's name in credit protection agencies and the National Bank of Labor Debtors (BNDT) – which are widely adopted in labor enforcement.

"In this specific case, the defendant showed no interest in voluntarily paying the labor debt. This inaction reaffirms the possibility of adopting an atypical measure, which could, therefore, encourage the defendant to seek alternatives to fulfill the obligation," says Calcini. "The SDI-2 concluded that the debtor's apathy is incompatible with the purpose of the execution, which is to enforce the court decision."

Article originally published in Valor Econômico on June 28, 2023.