The judicial execution of credit notes in electronic lawsuits

 Does the original copy of the credit note still have to instruct the execution action?

 1.       Among the many operational doubts raised by the electronic judicial lawsuit, introduced in Brazil by the Law nº 11.419, of December 19, 2006 (“LPE”), which was regulated and implemented in 2011, in the paulista Justice, by the Resolution nº 551 of the São Paulo Court of Justice (“TJSP”), it stands out the one to know how to maintain the obedience to the command of the art. 798, Inc. I, item a of the Code and Civil Procedure of 2015 (“CPC/2015”), that says “as long as is proposed the execution, it is incumbent upon the creditor: I – instruct the initial petition with: a) the extrajudicial executive credit note” (Our emphasis).

2.       It is the predominant jurisprudence in the art. 614, Inc. I of the revoked Code of Civil Procedure of 1973 (“CPC/1973”), reproduced in totum at the quoted art. 798, Inc. I, item a of the CPC/2015, it was said that, treating about credit note execution stricto sensu, the initial petition have to be instruct with original copy of cartouche, even though it is admitted the instruction as an authentic copy in exceptional cases, for example if the credit note is already find inserted at another lawsuit, or because of security reasons, when the credit note has expressive monetary value, among other exceptionalities (By everyone: NEGRÃO, Theotonio and al. Code of Civil Procedure and procedural legislation in force. 44 ª ed., São Paulo: Saraiva, 2012, note nº3 to art. 614, Inc. I, p. 800-801).

3.       Therefore, it is possible, in principle, according to that understanding, that all the executions founded in extrajudicial executive title, can be instruct with authentic copies of the related instruments, except for the credit note executions adopted of exchange rate nature, in which have to be followed by original copy, as defined by art. 784 of CPC/2015.

4.       What about now that the judicial lawsuit is electronic? How is it possible to attend to this jurisprudential imperative?

(2)  The principles of cartularity and circulability of the credit notes

5.       The reason of this apparent rigorousness leans in two inherent properties to the credit notes, whatever it is the cartularity and the circulability.   

6.       At the lesson of Waldirio Bulgarelli, the cartularity “consists, in last analysis, in the materialization of law, in the document. From there it is said that the right is incorporated to the document, expression used even by Cesare Vivante. The expression cartularity or cartularity law is used to mean to the law incorporation to the document as well as the right resulted by the credit note in relation to the essential business, called because of this, the underlying business, of extracartular relation. (BULGARELLI, Waldirio. Credit Notes. 18, ed., São Paulo: Atlas, p.65).

7.       Fábio Ulhoa Coelho, at his time, commenting the same principle, clarifies that “just the one who shows the cartouche (it means, the paper that it was launched the constitutive exchange acts of credits) can intend the satisfaction of one pretension related to the right documented by the credit note. The ones who don´t show the credit note in their own, it is not presumed creditor”. (COELHO, Fábio Ulhoa. Course of Commercial Law, vol. 1: Law of the Business. 16. Ed., 2. tir. São Paulo: Saraiva, 2012, p.438, emphasis in the original).

8.       The second characteristic of the credit notes, which it is found at the base of the mentioned jurisprudence, it is the circulability, it is worth to say, the possibility of the credit note property be transferred because of the simple manual tradition of the cartouche, if it is in blank or to the carrier (Cf. Civil Code, art. 904) – from it keep, the circulability, tight connection with the cartularity – as well as, and specially, because of the endorsement institute, which it is specific form of credit notes transference, in which it is made by the creditor desire unilateral declaration, associated to the endorser credit note tradition (Cf. Civil Code, art. 910, § 2º), without the necessity of any debtor´s consent, with no confusion, because, with the form of the credit cession previewed in the articles 286 and followings of the Civil Code, this is bilateral legal business, in which the credit transference efficiency to the third party presume, in principle, the debtor´s consent.

Well, if the credit right is incorporated to the physical materiality of the cartouche, and if this one can circulate by tradition or endorsement, so, in thesis, nothing would prevent that a creditor of bad faith, after filling the execution action against the debtor of a certain promissory note, for example, would endorse a credit note for a third party, and this one, would demand against the same debtor, founded on the same credit note.

10.   From there to remember, Fabio Ulhoa Coelho, that one of the cartularity principle consequences is “the requirement of exhibition of the original credit note in the instruction of the execution initial petition. It is not enough the credit note authentic copy presentation, because the credit could have been transferred to another person and just one document owner will be the titular lawful of the credit right. As the credit notes are revealed, essentially, an instrument of credit circulation represented, the cartularity principle is guarantee that the person who demands the right satisfaction is for sure his holder. Authentic copies don´t have the same guarantee because the one who introduces them doesn´t have necessarily the possession of the original document, and the person could have transferred to a third party. The cartularity is, on this way, the postulate who avoids the improper enrichment of the ones who were debtors of credit note and negotiated it with third party. (discount in a bank, for example)” (COELHO, op. cit. p. 438, our emphasis).

11.   Therefore, the sense and the outreach that the dominant doctrine and jurisprudence gave to the norm of the art. 798, Inc. I, term a of CPC/2015 have the goal to maintain the impossibility of a new execution based on the same currency, face with its possible circulation, or, at the saying of the Minister Nancy Andrighi, relator of the Special Appeal nº 337.822 in front of the Superior Court of Justice (“STJ”), “the collecting of the original copy of the extrajudicial executive credit note is essential requirement to the valid formation of the execution lawsuit and has the objective of […] eliminating the hypothesis of having the circulated credit note” (our emphasis).

(3)  The electronic lawsuit and the doubt about how to take the circulation cartouche

12.   With the advent of the electronic judicial lawsuit, doubts showed up about the operationalization, especially about the survival of the enforceability to instruct the initial petition of the execution action with the original copy of the credit note, and that the subtract of the electronic lawsuit files, to the evidence, doesn´t consist itself anymore of paper, but of byte, entity, this, from immaterially eminent nature.

13.   About being intuitive the physical impossibility of inserting the credit note original copy at the electronic lawsuit files, the art. 20 of the LPE introduced the subsection VI to the art. 365 of the revoked CPC/1973, which was produced literally in the Inc. VI of the art. 425 of the CPC/2015, in these words: “Do the same proof as the originals: […] VI – the digitalized reproductions of any document, public or particular, when joined to the files […] by lawyers, except the motivated allegation and substantiated of adulteration” (Our emphasis).

14.   Not being enough, the same art. 20 of the LPE added the § 1º to the art. 365 of the CPC/1973, reproduced integrally in the § 1º of the art. 425 of the CPC/2015, according the one, “the originals of the digitalized  documents, mentioned in the subsection VI of the chapter of this article, have to be preserved by its owner until the end of the deadline to interposition of rescission action.

15.   Therefore, the content of this last dispositive, even though the debtor can endorse the credit note outstanding the third party, goes to it, now, the procedural onus of conserving the possession of the credit note original copy, until it is done the deadline to proposition of the rescission action, in case it wants to file in the future, regretting that neither the LPE nor the CPC/2015 defined one specific sanction to the creditor who endorse to third parties the credit note in execution.

16.   Anyways, the electronic lawsuit brings the next question: how is it possible to instruct the initial petition of the execution action with original copy of the credit note, if this one, as obvious, can´t be physically inserted at the digital files of the lawsuit? Asking in another way, how is it possible to remove of circulation the credit note which pretends to be implemented by electronic lawsuit?

(4)  Two recent precedents of the TJSP

17.   In December of 2014, this question came to the TJSP, in the opportunity of an interposed instrument grievance by the Safra Bank S.A., in the electronic files of the execution action of a Bank Credit Ballot (“CCB”), against the following judge decision: “To ensure that the execution order is not circulated, I determine to the creditor that, in the deadline of ten days, deposit it at registry” (TJSP, lawsuit nº 2186181-90.2014.8.26.0000, fl. 26, our emphasis).

18.   In its reasons of grievance, the Bank argued that the determination to deposit the CCB in registry would violate the art. 11 of the LPE, according that “the documents produced electronically and joined to the electronic lawsuits with guarantee of source and of its signatory, in the form established on this law, will be considered originals to all legal effects”.

19.   In addition to that, it was claimed that, pursuant to art. 425, § 1º of the CPC/2015, it burdens to the Bank the procedural onus of preserving the possession of the digitalized and attached original documents to the electronic lawsuit until the end of the deadline to the interposition of the rescission action, and it is redundant the requirement of the judicial deposit. 

20.   But the TJSP dismissed the appeal, appointing to the exchange rate nature of the credit note, the art. 29, § 1º da Lei 10.931/2004, which created the CCB, preview expressly that “the Bank Credit Ballot will be transferable through endorsement in black, in which will be applied, when it is possible, the norms of foreign exchange right” (our emphasis). 

21.   Therefore, from the perspective of this precedent, even though there is no doubt that any document produced or reproduced electronically, and inserted to the digital judicial lawsuit, with guarantee of the source and its signatory, it is original document, the intrinsic circulability to the credit notes – notwithstanding the procedure computerization – imposes the necessity of, once judicially enforced – removing them from circulation to prevent a new execution against the same debtor, based on the same credit note.  

22.   So, after judged the referred grievance of instrument, the Safra Bank accomplished the determination of the execution judgment giving the original copy of the CCB to the registrar, in which was archived in the folder called “Deposited Documents in Registry – nº 4”, according to the certification of fl.68 of the cited lawsuit (SÃO PAULO, district of Cotia, 1ª Civil Court, lawsuit nº 1001448-69.2013.8.26.0152, fl. 68). 

23.   In December of 2015, as the previous precedent, the judgment was delivered by the TJSP avoiding provision to a grievance of instrument lodged by the Santander Bank S.A., this one made against the judgment decision in which determined to the Bank, in the electronic files of the execution proceeding of a CCB, not the deposit in judgment, but “the presentation in registry of the original credit note indicated at the initial, in the deadline of thirty (30) days, to the release of note about its filiation to the present digital lawsuit” (TJSP, lawsuit nº 2069127-69.2015.8.26.0000, fls. 39, our emphasis). 

24.   The invocation of the art. 425. Inc. VI of the CPC/2015 by the aggravating Bank didn´t damage the unanimity conviction of the Judgment Panel, whatever the one that the “extrajudicial executive credit note execution passible of circulation have to be instructed with the original, not with copy, notably when there is no justification which avoids the attached to the authentic by the creditor” (TJSP, lawsuit nº 2069127-69.2015.8.26.0000, fl. 50, our emphasis). 

25.   Once the appeal was enforced, the Bank accomplished the judgment determination participating in registry to show to the registrar the original credit note under execution, and this one, on its turn, launched on the cartouche a note explaining its link to the lawsuit, giving back the credit note to the Bank (Cf. SÃO PAULO, district of São Paulo, Regional Court XV – Butantã,  1ª Civil Court, lawsuit nº 1001463-60.2015.8.26.0704, fl. 65).

26.   It is noticed that there are two different solutions to the same practice imperative of removing from circulation the credit note, to know: (i) the deposit of the original copy of the credit note in registry, or (ii) its exhibition to the registrar to launch indicative note that the credit note is linked to execution lawsuit, with the immediate devolution of the cartouche to the creditor.

(5)  Dissonant judgements of the TJSP

27.   However, in the scope of the same TJSP, it stills to hear dissonant voices of the obligation to remove from circulation the credit note, highlighting two judgments from execution actions from CCB (TJSP, lawsuits n.os 20433739620138260000 e 0104111-84.2013.8.26.0000), in which the judge, in the first case, being an electronic proceeding, determined that the Itaú Bank S.A. have to deposit in registry the original copy of the ballot and, in the second case, in which the lawsuit was still processed in paper, the magistrate ordered Santander Bank S.A. to arrange the proper original cartouche to the files.

28.   Both of the judgments based the waiver of the deposit in registry, or of the original credit note cartouche to the files in the ponderation that “however the bank credit ballot is, in thesis, passible of circulation through endorsement, in the terms of the art. 29 § 1º da Lei 10.931/2004, its transference to third parties isn´t common, and there isn´t evidence in the files that there is the circulation of the credit note” (TJSP, lawsuit nº 20433739620138260000, fl. 55, our emphasis), being important to observe that the second judgment was referred to a precedent relatively old of the STJ, in which it was determined that “the requirement of the executed foreign exchange original credit note presentation is established in the possibility of circulation, what would always gave always to the debtor the possibility to suffer two executions because of the same debt. Apart of that, and of the cases that it is necessary the expertise to confirm the authenticity of the document, the general rule to be applied it is from the art. 365 of the CPC, which assigns probing effect, as the originals, to the authentic reproduction or checked by a public official. In the hypothesis in judgment, the bank is promoting the charge of a mutual contract and the linked promissory note. Even though it is possible the circulation of these credits, by endorsement or cession, it is far-flung the occurrence. In fact, the forensic practice authorizes to affirm the absolutely rarity of malicious behavior, because even if the credit notes were presented to another lawsuit, neither in new execution in the bankruptcy nor in the debtor concordat, it would be easily proved the order repetition and the bad behavior of the creditor” (STJ, REsp n. 256.449–SP, our emphasis).

29.   With all respect, removing the command of a norm through the argument that the conduct which it views to curb “it is not common” represents unusual and invalid judicial justification, moreover because nothing prevents that the unusual comes to be, in the blink of an eye, very common.

30.   In addition to that, the same Code which affirms to do the same proof that the digitalized reproduced originals of any inserted document in the files of an electronic proceeding (CPC/2015, art. 425, inc. VI), affirms as well that “treating about the digital copy of the extrajudicial executive credit title or other document important to the instruction of the lawsuit, the judge may determine his deposit in registry or secretary” (CPC/2015, art. 425, § 2º, our emphasis).

31.   The CPC/2015 gave to the magistrate of first instance certain scope of discretion to require or not the deposit of the original credit note copy in registry, and this discretion can´t be reduced or even suppressed by the higher court, except by specific imperatives of the specific case which the magistrate may have disregarded.

32.   However, in the abstract, and without a reasonable justification, it is not responsible of the higher courts the systematic waiver of the deposit of the original credit note copy in registry, when it is determined by the judge, as if the norm of the § 2ºof the art. 425 of the CPC/2015 wasn’t in force. 

(6)  The operational solution established by the TJSP´s Inspector

33.   In any case, in anticipation, perhaps, that, even after the advent of the electronic judicial lawsuit, it could continue to prevail, the understanding that the execution of a receivable credit note that can be circulated by exchange endorsement presupposes, for the valid constitution of the lawsuit, the removal of the credit note, the TJSP's General Office of Justice established an operational solution to the problem; in fact, a double solution.

34.   Aiming the regularization of the § 2º do art. 425 do CPC/2015, the TJSP´s Inspector published the Provision nº 21, from August 25, 2014, in which it was inserted the “Chapter XI – Of the Electronic Proceeding” to the “Part I – Justice Crafts” of the “Norms of the Justice General Inspector Service” (“NSCGJ”), in which “Subsection X” named “The Digitalization and the Storage of Petitions and Documents” it was inserted the art. 1.260, that includes both of the solutions above suggested by the magistrates of first instance who pronounced the related decisions aggravated in the appeals from the items 16 to 25.

35.   About the first solution, the main idea of the art. 1.260 establishes that “treating about the digital copy of the extrajudicial executive credit note or other document relevant to lawsuit instruction, the judge may determine his deposit in justice craft, observed the procedure established in the paragraphs of the art. 1.259” (our emphasis”, as it was done by the judge in one of the bill of reviews above reported.

36.   In relation to the second solution, the only paragraph of the same art. 1.260 of the NSCGJ disposes that “it is provided to the judge the determination of the exhibition of the original documents just for themselves to be launched the notes related to the its relation to the digital proceeding, giving back to the presenter, being certified in the digital files (our emphasis), as it was done by the judge referred in the other bill of review above reported.

(7)  The solution adopted by the Santa Catarina Court of Justice 

37.   A solution partially similar it was adopted by the Santa Catarina Court of Justice (“TJSC), from the consultation of a first instance judge, on the liability of storage and conservation of the executed credit notes by electronic proceeding.

38.   The opinion of the Judge-Inspector meant that “considering the circulability, characteristic of the credit notes […], by caution, it is recommended the requirement of the document presentation for the binding to the electronic judicial lawsuit, through the application of the customized stamp – model 45 – made available by the Infrastructure Board of this Justice Court, with a next devolution to its owner” (our emphasis), opinion that was accepted by the General Justice Inspector of the TJSC, declaring it binding by the Circular nº 192/ CGJ, from September 1, 2014.

39.   Therefore, in August of 2015m the TJSC appreciated an instrument grievance lodged by BV Financeira S.A., made against the judge decision that, at the files of first instance referred to the search action and apprehension of fiduciary alienated vehicle with CCB ballast issued by the debtor, determined the link of the files of the original copy, through extinction penalty (TJSC, Circular nº 0500397-38.2010.8.24.0024)[1].

40.   So, about the topic that was expressed at the Circular nº 192/CGJ, it was expressed: “Treating about lawsuit that is electronic, it is admitted the link of the digitalized copy of the document, in which has the same relevance of the original for all legal effects. It is not necessary the deposit at the registry of the original copy of the credit note, and it is just going to happen in the hypothesis of doubt about its authenticity. Exegesis of the article 365, VI, of the CPC, with essay given by the Law nº 11.419/2006. However, it is necessary the presentation in registry of the credit note, just for purposes of link between the cartouche and the respective electronic lawsuit by the opposition of the stamp (model 45). Exaggerated recommendation at the Circular nº 192/2014, of the General Office of Justice. Necessary caution to avoid the circulation of the document, in which should be saved and conserved in deposit by the financial institution, being presented when it is required. Art. 365, §§ 1º e 2º of the CPC”.

(8)  Conclusions

41.   It draws attention the fact that almost every one of the judges referred on this study had as their objective the bank credit note created by the Law 10.931/2004, revealing that it is a credit note which came to stay.

42.   On the opposite way, the letter of exchange seems to have turned a museum object, even though all the dogmatic of the credit notes that have been built around the business structure of the littera cambii, in latin, since its conception in the thirteenth century by the merchants of the maritime towns of the Italic Peninsula, as simple way of payment, until gradually assuming, in later centuries, the function of an instrument of credit circulation.

43.   By the way, in its normative internationalization made by the Genebra Convention of 1930, incorporated into our legal system by the Decree nº 57.663, of January 24, 1966, the bill of exchange was disciplined in a careful way, unlike the promissory note, that was drawn just in its essential elements, establishing, the article 77 of the Genebra Convention, that are applicable, in the part that there aren´t opposition to their nature, the dispositions referred to the bill exchange related to the endorsement, guarantee, salary, payment, prescription, among other dispositions.

44.   From there the term “foreign exchange” has been converted, by antonomasia, in synonymous of credit note, because the rule of the bill of exchange, even if it is almost not used, has until today the function of general law of the credit notes, applicable in subsidiary character in face of the eventual gaps of the respective applicable laws.

45.   The check is another credit note that seems to follow the same way of the bill of exchange. With the emergence of the “Available Electronic Transfer” (TED) instituted by the Circular of the Central Bank of Brazil nº 3.115, of Abril 18, 2002, posteriorly facilitated and defunded by the internetization of the bank accounts, including the “Credit Order Document” (DOC), and with the dissemination of the credit and debit cards on the retail transaction, the check is being used less at the marketplace, indicating that is doomed to extinction. 

46.   But, returning to the main topic of this study, it is possibly to conclude from the analysis of the legislation and the jurisprudence above detailed that the introduction of the electronic lawsuit at the judicial ambit just altered the modus operandi of the removing of the credit notes circulation that are objects of judicial execution, because if in the paper lawsuit the removal it was operated by the insert of the original credit note copy in the physical files, in the electronic lawsuit it can be operated by the original deposit in registry as well as by the launching, in cartouche, of indicative note that it is linked to the determined lawsuit.

47.   It seems to me that this second solution – adopted by the single paragraph of the article 1.260 of the Tomo I of the NSCGJ of the TJSP, as well as by the Circular nº 192/CGJ of the TJSC – it is more consistent with one of the purposes that was important to introduce the electronic procedure at the Brazilian judicial system: the abolition of all and any documentation in paper.

48.   However, the question, in any necessity, or not, of removing the credit note in execution circulation, it isn´t totally pacified in the jurisprudence, at least at the TJSP ambit.

49.   In fact, if for both of the precedents of the TJSP commented at the items 16 to 25 there are other ones that understand indispensable the removal of the credit notes circulation, there is, on the other side, not many edges which are lined up to the two judges mentioned at the items 26 to 31, above, considering dispensable the cartouche of the original credit note copy to the files, if in paper the lawsuit, or its deposit in registry, if it is electronic.

50.   I believe that the dominant case-law is more consistent with the requirements of legal certainty. 

51.   In addition: or it is required the credit note circulation withdraw, so that the debtor can´t suffer with a new execution backed by the same credit note, or it is established an important penalty for the creditor who promotes credit note execution in circulation, and after alienates this credit note to a third party by endorsement, penalty this one that, mutatis mutandis, could be analog to the previous one at the article 940 of the Civil Code, in verbis: “The one who demands by debt already paid, in whole or in part, without saying the received quantities or ask more that it is debt, will be obligated to pay to the debtor, at the first case, the double of how much it was debt and, at the second case, the same of it was required, unless there is a limitation. 

52.   However, legem habemus! At least at the state justices of São Paulo and Santa Catarina ambit, as it was seen, where the respective inspector general office of justice established a solution to the credit note execution in electronic procedure its deposit in registry – at this case, with protection on the cited article 425, § 2º of the CPC/2015, or its exhibition to the clerk to launch indicative note about what is linked to a determined lawsuit in execution.

53.   By the way, the legislator of 2015 has lost the opportunity to finish this divergent case-law that has been to be presented, adopting that second and more appropriated solution, including in the body of the Civil Procedure Code a provision – applicable exclusively to the judicial execution of the credit notes – that would turn obligated the exhibition of the original copy of the cartouche to the court clerk, in order to make an annotation indicating that it is linked to a particular lawsuit.

Roberto Braga de Andrade
Chiarottino e Nicoletti Advogados