Post by account_disabled on Mar 10, 2024 22:24:03 GMT -5
As the interest charged on special checks is some of the highest on the market, decisions by the Superior Court of Justice have prevented abuses against customers who use this banking product. Many banks, for example, change the check limit without prior notice to the account holder. And, even if the customer defaults, they must be informed of the change. The STJ has therefore been issuing jurisprudence in this regard.
This is the case, for example, of the judgment of Interlocutory Appeal ,,, which involves Banco Itaú. The institution would have canceled the limit of one of its account holders. The bank, in turn, stated that there was no failure to provide the service, and there was no illicit act. Minister Massami Uyeda considered that the bank should compensate the customer for moral damages.
However, one of the first decisions came from Minister Nancy Andrighi. In this case, a customer in default with ABN Real had his overdraft limit cancelled. One of his checks bounced and his account was automatically canceled. However, the debt was not from the account holder himself, but related to a loan for which he was a guarantor. The client decided to take action against Real, asking for Austria Phone Numbers List compensation for moral damages. On the other hand, the bank stated that the overdraft is a reward granted to customers who fulfill their obligations on time. However, Minister Andrighi clarified that “there is no relationship between the loan contract endorsed by the account holder and the opening of credit in a current account, whose credit limit was canceled, which prevents the cancellation of one due to the default of the other , as they are distinct legal relationships”.
According to lawyer Rodrigo Daniel dos Santos, legal consultant at the Institute for the Study and Defense of Consumer Relations (Ibedec) and specialist in Business Law at Fundação Getúlio Vargas, this is one of the most common problems facing banking institutions. “Cancelling or reducing the overdraft limit, without prior notice, may be considered a breach of contract,” he noted
Withholding of wages
It is also an abuse committed by banks to withhold wages to pay off the overdraft. The seizure of wages and salaries necessary for the maintenance of the debtor and his family is prohibited by article of the Code of Civil Procedure. The understanding was used by Minister Humberto Gomes de Barros in the judgment of Special Appeal
The process involves Branco do Brasil. According to the institution, salary retention is permitted under the allegation of exercising the right to execute the contract. However, for the minister, even with the permission of a contractual clause, the appropriation of salary to pay off an overdraft is illegal and gives rise to compensation for moral damages.
Excessive rate setting
Some STJ decisions have also combated excessive interest rate setting. In the Special Appeal filed by Losango Promotora de Vendas Ltda. and HSBC Bank Brasil SA, an account holder requested the rectification of the contract rate set at % per year.
The rapporteur of the appeal, then minister Pádua Ribeiro, now retired, stated that, although it is not possible to consider rates above % per year abusive, in the hypothesis analyzed the value would be excessive. The market average in the month in which the loan was granted was %.
For consultant Rodrigo Daniel dos Santos, from Ibedec, the problem lies in the lack of objectivity in contracts for special checks. They are too generic and do not specify the rates that vary above the market and that, to prove that the market rates are excessive, there must be expertise in the lower courts.
This is the case, for example, of the judgment of Interlocutory Appeal ,,, which involves Banco Itaú. The institution would have canceled the limit of one of its account holders. The bank, in turn, stated that there was no failure to provide the service, and there was no illicit act. Minister Massami Uyeda considered that the bank should compensate the customer for moral damages.
However, one of the first decisions came from Minister Nancy Andrighi. In this case, a customer in default with ABN Real had his overdraft limit cancelled. One of his checks bounced and his account was automatically canceled. However, the debt was not from the account holder himself, but related to a loan for which he was a guarantor. The client decided to take action against Real, asking for Austria Phone Numbers List compensation for moral damages. On the other hand, the bank stated that the overdraft is a reward granted to customers who fulfill their obligations on time. However, Minister Andrighi clarified that “there is no relationship between the loan contract endorsed by the account holder and the opening of credit in a current account, whose credit limit was canceled, which prevents the cancellation of one due to the default of the other , as they are distinct legal relationships”.
According to lawyer Rodrigo Daniel dos Santos, legal consultant at the Institute for the Study and Defense of Consumer Relations (Ibedec) and specialist in Business Law at Fundação Getúlio Vargas, this is one of the most common problems facing banking institutions. “Cancelling or reducing the overdraft limit, without prior notice, may be considered a breach of contract,” he noted
Withholding of wages
It is also an abuse committed by banks to withhold wages to pay off the overdraft. The seizure of wages and salaries necessary for the maintenance of the debtor and his family is prohibited by article of the Code of Civil Procedure. The understanding was used by Minister Humberto Gomes de Barros in the judgment of Special Appeal
The process involves Branco do Brasil. According to the institution, salary retention is permitted under the allegation of exercising the right to execute the contract. However, for the minister, even with the permission of a contractual clause, the appropriation of salary to pay off an overdraft is illegal and gives rise to compensation for moral damages.
Excessive rate setting
Some STJ decisions have also combated excessive interest rate setting. In the Special Appeal filed by Losango Promotora de Vendas Ltda. and HSBC Bank Brasil SA, an account holder requested the rectification of the contract rate set at % per year.
The rapporteur of the appeal, then minister Pádua Ribeiro, now retired, stated that, although it is not possible to consider rates above % per year abusive, in the hypothesis analyzed the value would be excessive. The market average in the month in which the loan was granted was %.
For consultant Rodrigo Daniel dos Santos, from Ibedec, the problem lies in the lack of objectivity in contracts for special checks. They are too generic and do not specify the rates that vary above the market and that, to prove that the market rates are excessive, there must be expertise in the lower courts.