Law No. 14,181/2021, known as the Over-Indebtedness Law, introduced into Brazilian law a micro-system for the protection of over-indebted consumers, focusing on the renegotiation of debts through judicial or extrajudicial means. Among the instruments provided, the compulsory payment plan stands out, provided for in art. 104-B of the Consumer Protection Code (CDC), which can be approved even without the consent of all creditors.
This mechanism represents a significant innovation, as it breaks with the traditional logic of unanimous consensus in debt negotiation processes, allowing the judiciary to intervene to ensure the preservation of the consumer’s minimum subsistence level, an essential principle that permeates the new discipline. When approving the plan, the judge must assess whether the proposed conditions ensure a balance between the rights of creditors and the dignity of the debtor, avoiding solutions that involve disproportionate sacrifice for any of the parties involved.
In addition, the law establishes criteria for preparing the plan, such as a maximum period of five years for settling debts and the exclusion of certain credits, such as tax debts, alimony, and secured contracts. It also requires consumers to present all supporting documentation of their income and expenses in order to demonstrate their actual situation of over-indebtedness and the viability of the plan.
The judicial procedure for over-indebtedness is atypical and conciliatory in nature, with a strong emphasis on cooperation between the parties and the social function of the contract. In this regard, the enactment of Law No. 14,181/21, which amended the Consumer Protection Code to include the treatment of over-indebtedness, brought to light a series of relevant legal debates, especially with regard to the procedural liability of creditors in debt restructuring actions.
One aspect that has sparked debate is the possibility of exempting creditors from paying fees of loss of suits, even when they are considered technically due, i.e., in cases where the claim is upheld or partially upheld, with such exemption being based on the application of the principle of causality.
Although not expressly stated in the Code of Civil Procedure, the principle of causality is widely recognized by legal doctrine and case law as a criterion for the allocation of the costs of loss of suit. According to this principle, the party who caused the proceedings to be instituted must bear the costs of the proceedings. In the context of over-indebtedness, this logic is reversed: debtors in situations of economic and social vulnerability turn to the courts not to dispute the existence of the debt, but to reorganize their financial lives in a dignified and viable manner.
In these lawsuits, creditors are called upon to participate in the process not as litigants in the strict sense, but as interested parties in the development of a payment plan that respects the debtor’s financial capacity. The lack of resistance combined with the creditor’s cooperative stance during the proceedings highlights the absence of effective litigation, a circumstance that precludes the automatic application of the rule of defeat provided for in the main section of article 85 of the Code of Civil Procedure, thereby authorizing the application of the principle of causality as a criterion for the distribution of the costs of loss of suit.
The case law has recognized that, in such cases, ordering creditors to pay attorneys’ fees may discourage cooperation and procedural good faith, in addition to contradicting the public policy objectives of preventing and treating over-indebtedness. In a recent ruling, the Court of Justice of the Federal District (TJ-DF) held that, “in debt renegotiation proceedings, if the claim is upheld, the fees of loss of suits shall be based on the economic benefit obtained by the prevailing party,” rejecting the determination based on equity and recognizing the peculiar nature of creditors’ actions in this type of claim.
In another precedent, the TJ-SP recognized that, given the low complexity of the case and the absence of resistance from creditors, setting or even reducing fees is an appropriate measure, considering the conciliatory nature of the procedure and the good faith of the financial institutions.
From a doctrinal point of view, Fredie Didier Jr. observes that “causality is a fairer criterion for imposing procedural burdens, as it considers who actually caused the judicial process to be set in motion, even if they did not win on the merits” (Curso de Direito Processual Civil, vol. 3, 2023).
In summary, the application of the principle of causality in actions involving excessive debt represents a step forward in the development of civil proceedings that are more sensitive to social and economic inequalities. By recognizing that the creditor did not give cause for the lawsuit or that its participation was collaborative, the Judiciary reaffirms its commitment to more equitable justice, without losing sight of legal certainty and contractual balance.
Renan Penteado Duarte, Partner at Ernesto Borges Law Firm. Specialist in Civil Procedure from EDAMP (School of Law of the Public Prosecutor’s Office).
BIBLIOGRAPHY:
https://www.planalto.gov.br/ccivil_03/leis/l8078compilado.htm – Consumer Protection Code;
https://www.planalto.gov.br/ccivil_03/constituicao/constituicao.htm – Federal Constitution;
https://www.planalto.gov.br/ccivil_03/_ato2015-2018/2015/lei/l13105.htm – Code of Civil Procedure;
https://www.jusbrasil.com.br/jurisprudencia/tj-df/2763879782 – TJDFT Case Law, accessed on 7/9/2025, at 6:39 p.m.
https://www.jusbrasil.com.br/jurisprudencia/tj-sp/2076257912 – TJSP Case Law, accessed on 7/9/2025, at 6:43 p.m.
Autor: Renan Penteado Duarte • email: renan.duarte@ernestoborges.com.br
