Mortgage creditor has preference in property even without requesting attachment

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The mortgage creditor's right of preference does not require a lien on the property. This is the understanding of the 3rd Panel of the Superior Court of Justice when reforming the decision of the Court of Justice of São Paulo that denied the request for preference to a mortgage creditor because he did not make the attachment on the auctioned property.


In this case, the authors took action to execute an extrajudicial title to collect rent. There was a seizure of the mortgaged property, and Caixa Econômica Federal, as mortgage creditor, requested the qualification of its credit, with preference in withdrawing amounts after the auction.

In the first instance, the judge B2B Lead rejected the mortgage creditor's request for preference, as he understood that, as he did not place a seizure on the property, his credit became unsecured (without preference in relation to the others).

With the decision, maintained by the Court of Justice of São Paulo, the order of preference in payment was established, sequentially, for the condominium, public farms, creditors and unsecured creditors.

Order of preference
Minister Nancy Andrighi highlighted STJ judgments in the sense that the exercise of the legal right of preference does not depend on the filing of the execution by the mortgage creditor, and can be exercised in the execution files filed by a third party.

“It should be noted that, under the terms of articles 333, II, and 1,425, II, of the Civil Code of 2002, the seizure of the mortgaged asset in execution promoted by another creditor produces, in the absence of other seizable assets, the early maturity of the mortgage credit. , because it makes the debtor’s insolvency presumed”, pointed out the rapporteur.



According to the minister, the requirement that the mortgage creditor promote the execution of the debt as a requirement for exercising the legal right of preference results in the emptying of the guarantee itself, considering that, if the mortgage is extinguished with the auction of the asset , mortgage credit would be threatened by the possible absence of equity.

Despite removing the requirement for prior attachment for the mortgage creditor to exercise the right of preference, the minister highlighted that the STJ jurisprudence establishes that credit resulting from condominium expenses has preference over mortgage credit. In the same sense, the rapporteur recalled, tax credit has preference over any other, including condominium credit, with the exception of those arising from labor legislation.