Third party embargoes are a type of lawsuit that seeks to protect the possession or ownership of a property. seized by court decision rendered in a proceeding which the owner or owner did not part.
Example:
During an execution process, Carlos had his property pledged. However, at the time of the seizure, the bailiff seized a car that was in Carlos' residence, but belonged to João. In this case, João has the right to file third-party embargoes to recover his property.
The rules regarding third-party embargoes are provided for in articles 674 to 681 of the Code of Civil Procedure, under the heading “Special Procedures”. Therefore, third-party embargoes, despite being filed during a process, are not an appeal, but an action.
Third party embargoes, as well as other special procedures, have different effects. First, third-party embargoes have declaratory effect, as they aim to declare the executive act that constrains the asset to be illegitimate. Then, the action has constitutive effect, since it recognizes the existence of a right. Finally, the action also has enforceable effects, as it may practically determine the release of an asset.
Who can file third-party embargoes?
Article 674, in its §1 and §2 of the Code of Civil Procedure demonstrates who has active standing to file third-party embargoes:
- Embargoes can be of a third-party owner, including fiduciary, or possessor.
- It is considered third, for the filing of embargoes:
- the spouse or partner, when defending the possession of their own assets or their share, except as provided for in art. 843;
- the purchaser of goods whose constriction resulted from a decision declaring the ineffectiveness of the sale carried out in fraud to the execution;
- who suffers judicial constriction of their assets due to disregard of the legal personality, of which incident they were not part;
- the creditor with real guarantee to prevent judicial expropriation of the object of real guarantee right, if it has not been summoned, under the legal terms of the respective expropriation acts.
What are the requirements for filing third party embargoes?
The filing of third party embargoes depends on two requirements. The first is the existence of an enforceable measure in a process in which the owner or owner of the property is not a party. The second is the incompatibility of the good with the execution.
It is up to the appellant to prove these hypotheses of appropriateness for the filing of the action.
What is the procedure for third-party embargoes?
According to article 677 of the Code of Civil Procedure, the initial petition for embargoes must contain evidence of the claimant's third-party status, in addition to evidence of possession or domain of the property.
The value of the claim in third-party embargoes must be the value of the constrained asset.
The summons of the objected party will be personal if there is no attorney-in-fact constituted in the case records of the main proceedings (in which the execution of the asset was determined).
Embargoes can be challenged within 15 days. Afterwards, the action will follow the usual procedure.
In case of origin, the judge will suspend the restrictive measures on the claimed assets and, if necessary and required, the maintenance or reintegration of possession.
Is it possible to file preventive third party embargoes?
Third party embargoes can be preventive. The caput of article 674 of the Code of Civil Procedure is clear in providing that:
Who, not being part of the process, suffers constriction or threat of constriction on assets that it owns or over which it has a right incompatible with the constrictive act, it may request its undoing or its inhibition by means of third party embargoes.
The Superior Court of Justice already has decisions stating that the annotation (official record) of the existence of execution on a given good is already a sufficient foundation that authorizes the filing of embargoes by a third party in a preventive.
What is the deadline for filing third party embargoes?
As provided for in article 675 of the Code of Civil Procedure, embargoes may be filed at any time in the process of knowledge while the sentence has not become unappealable and, in the fulfillment of the sentence or in the execution process, until 5 days after the award, sale by private initiative or auction, but always before the signature of the respective letter.
What is the competent court to judge third-party embargoes?
Even being an autonomous action, third-party embargoes have an accessory relationship with the process that determined the constriction of the property. Thus, third-party embargoes must be filed before the same court responsible for execution.
In cases where the execution is carried out by letter of precatory, the competent court to assess the embargoes should be the one that determined, specifically, the constriction of the disputed asset.
Third party embargoes in the work process
Third party embargoes are also used in labor proceedings through the application subsidiary of the rules of civil procedure, as provided for in article 769 of the Consolidation of the Laws of the Work.
See too:
- civil procedural law
- Motions to execution
- Infringing embargoes
- Motion for clarification