A recent decision by the São Paulo Court of Justice (TJSP) reaffirms the longstanding guidelines for proving default and controlling formalities in fiduciary alienation.
This decision aims to prevent minor documentary errors from hindering the process. In Interlocutory Appeal No. 2366875-68.2025.8.26.0000, the 31st Chamber of Private Law addressed issues central to credit litigation.
The ruling sends important signals to creditors, and the four 4 relevant points are summarized below:
1. Sending the notice to the contractual address is sufficient to establish default: The Court reiterated that proof of default is perfected upon sending the extrajudicial notice to the address listed in the contract, regardless of who actually signed the receipt. Relying on Superior Court of Justice Theme 1132, the Court emphasized that personal receipt by the debtor is not required, since the purpose of the notice is to provide formal awareness and an opportunity to cure the default, not to validate avoidance strategies. Delivery at the contractual address satisfies the legal requirement, even when the notice is signed by third parties.
2. Minor formal discrepancies do not invalidate the notice when the debt is clearly identified: The debtor argued that the notice of default was invalid due to a discrepancy in the contract number. The TJSP rejected the argument, noting that the notice included the debtor’s full name, address, and a clear reference to the outstanding debt. The Court highlighted that isolated clerical errors do not nullify the act when no concrete prejudice is shown, particularly when the debtor does not dispute the debt itself. Civil procedure, the ruling notes, should not convert minimal inaccuracies into disproportionate barriers to effective credit recovery.
3. Matters not examined by the trial court cannot be analyzed by the appellate court: Issues raised in the defendant’s answer, such as interest, contractual abusiveness, and the request for a fee waiver, were not considered because they were still pending a decision in the first instance. The ruling reinforces respect for due process and the principle of double‑tier review, noting that the appellate court cannot decide issues not previously addressed by the trial judge, under penalty of suppressing a level of jurisdiction.
4. With the default established, the repossession injunction must be upheld: Given the regularity of the notice and the absence of any substantive challenge to the debt, the Chamber maintained the injunction. The Court stressed that repossession actions require formalities, but also functionality, as excessive formalism should not undermine the protection of credit when the essential requirements have been met.
The decision aligns with the broader logic of the Brazilian fiduciary system, which relies on legal certainty to ensure stability and predictability in the credit market. It also reduces debates that distract from the ultimate matters of debt satisfaction and the effectiveness of repossession procedures.
