João Pessoa’s Appeal Groups change their understanding of the STJ’s repetitive theme

Judgment Process - 3044477-60.2012.8.15.2001

In December 2018, the Superior Court of Justice issued a decision in the judgment of REsp1.578.553 / SP, which established a precedent in Banking Law for the legality of the contractual clause that provides for the collection of reimbursement for services provided by third parties, as long as there is the specification of the service actually provided.

The Appeals Classes in João Pessoa / PB were, however, adopting a different understanding from the judgment of Repetitive Theme 598, declaring the need for proof of the effective provision of the service. After several oral submissions and orders, some made, even by Dr. Wilson Sales Belchior, there was a change in the understanding of the 2nd Panel of João Pessoa, about the controversy in question as shown in the menu below:

UNLIMITED RESOURCE. OVERPAYMENT OF ACTION. BANKING CONTRACTS. VEHICLE FINANCING. BILLING FOR THIRD PARTY SERVICES. SPECIFICATION.GRAVAME. INSERT BEFORE THE ENTRY INTO FORCE OF RES. CMN 3,954 / 2011. CONTRACTUAL FREEDOM. LEGALITY OF RATES. REFORM OF THE SENTENCE. IMPROCEDENCE OF REQUESTS. PROVISION OF THE APPEAL. In a bank financing agreement, charging for “Third Party Services” is abusive, when there is no specification of the service (s) provided, as per the thesis established by the STJ in the REsp. nº 1,578,553 / SP, judged by the Repetitive Appeals system on 11/28/2018 and published on 12/06/2018 (Theme 958). In this tone, despite the adduced by the promoting party, one can glimpse, in id 3983607, p. 6, clause C.7, that the applicant specified the third-party service, under the terms of the aforementioned decision. It should also be noted that because the STJ requires only the specification of the service, the financial institution cannot be required to provide proof of the effective provision of the service, especially if this fact was not the cause of the demand. Therefore, in the absence of an argument, in the 1st Degree, by the contractor, regarding the non-provision of the service, it is not reasonable to demand such proof only in the 2nd Degree, considering that there would be a defense restriction and, consequently, there would be nullity. of the process. It is important to point out that, despite a previous understanding, after a better analysis of Theme 958, this Colenda Turma started to appreciate the demands regarding the present matter, according to the reasons explained above. In view of these considerations and in the absence of illegality of third party services, it is necessary to withdraw their refund. (Proc. 3044477-60.2012.8.15.2001 – Rapporteur: José Ferreira Ramos Júnior – date: 04/09/2019).

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