Definitive consolidation of title by the fiduciary creditor and the (un)necessity of returning the surplus: An analysis of the conflicting positions of the 3rd and 4th Panels of the STJ

The article examines one of the most controversial issues in the alienação fiduciária (fiduciary transfer of title) of real property governed by Law No. 9,514/1997: once the fiduciary creditor becomes the full owner of the property, after two extrajudicial auctions without a bid sufficient to cover the debt, is it required to return to the debtor any difference between the market value of the property and the amount of the discharged debt?

Rafael reconstructs the scholarly debate on the subject, showing that the prevailing position has always been that no restitution is due, since, in that scenario, the property is incorporated into the creditor's estate at the value of the debt itself — not at market value.

The article highlights, however, that the 4th Panel of the STJ (Superior Court of Justice), in AgInt no AREsp 2,039,395/SP, a 2022 decision, applied by analogy to the fiduciary transfer of title an understanding consolidated for mortgage foreclosures, ordering the return of any surplus when the creditor resells the property to third parties — thereby creating a divergence from the longstanding case law of the 3rd Panel, which continues to deny such a duty of restitution.

The text also analyzes how the reforms introduced by Laws No. 13,465/2017 and No. 14,711/2023 reaffirmed, in the letter of the law, the mutual release of the parties in these cases, which, according to the author, legally strengthens the position of the 3rd Panel and calls into question the solution adopted by the 4th Panel.

Practical relevance

The subject is highly relevant to the real estate and financial markets, as it directly affects:

• Creditor institutions (banks, securitization companies, developers) that use the fiduciary transfer of title as security and need to assess risks and provision for potential restitution obligations in the event of consolidation and resale of the property;
• Fiduciary debtors (fiduciantes), as to the possibility — still unsettled in the case law — of recovering surplus amounts in situations of default;
• Attorneys and practitioners of real estate and banking law, who work both on structuring security packages and on litigation arising from frustrated extrajudicial foreclosures.

The analysis is especially useful for guiding litigation strategy in disputes involving the consolidation of fiduciary ownership and negotiations for the resale of foreclosed properties, given the still-existing divergence between the Panels of the STJ.

📎 Read the full article at: https://www.migalhas.com.br/coluna/migalhas-edilicias/446109/consolidacao-do-imovel-pelo-credor-fiduciario-e-restituicao-do-sobejo