For those involved in banking litigation, lawsuits filed against financial institutions based on the limitation of amounts allocated as payroll deductions from the income of consumers who have taken out loans are common occurrences in courts throughout the country.
The main issue surrounding this matter often does not concern the legitimacy of applying a certain discount rate, given that, for the various types of consignment arrangements, there are already laws in place specifically aimed at regulating the feasibility and limits of such discounts, thereby ensuring consumer rights and guiding court decisions.
In other words, in situations where the legal limits for payroll deductions are indeed exceeded, taking into account the specific circumstances of each contract and the timing of their execution, courts across the country have often ruled in favor of consumers whose right to such limitation is clearly demonstrated, ensuring the proper adjustment of their consignable margin.
In this context, where the merits of the lawsuit have interpretative guidelines that can be more clearly understood, another issue has emerged: the proper and fair determination of the amount in dispute in such cases.
Assessing the amount in dispute has proven problematic in these instances, as what is often observed is the unreasonable assignment of excessively high amounts.
These inflated values are frequently the result of a lack of consideration for reasonableness, or even driven by a disguised intent to obtain undue financial advantage at the expense of the opposing party. This situation has become increasingly prominent in the legal system due to the growing recognition of abusive practices in the filing of lawsuits, actions that are now being classified as frivolous or bad-faith litigation.
While, on one hand, the specification of the amount in dispute at the time of filing the petition is a requirement set forth in article 291 of the CPC, on the other hand, the lack of a correct and standardized interpretation of how this value should be determined in actions involving the limitation of consignable margins creates significant legal uncertainty and opens the door to opportunistic litigation practices.
There are various interpretations on the matter. For instance, some understand that the economic benefit sought in the claim corresponds to the total sum of the installments from the contracts that the plaintiff intends to modify. Accordingly, the amount to be assigned as the amount in dispute should reflect the full amount that would actually be suspended as a result of the modification of the consignable margin under discussion.
Another perspective holds that, in this type of action, there is no measurable economic benefit, and therefore the amount in dispute should be merely symbolic.
There are also those who go further and simply consider that the amount attributed to the cause may correspond to the total value of the contracts subject to deductions, not merely the amounts exceeding the legal margin, but the full value of each linked contract, or even the entirety of deductions already made and those scheduled, based on the number of installments in the operation.
Another line of thought holds that the amount in dispute, in strict compliance with art. 292, item II, of the Code of Civil Procedure, should correspond to the amount of the consignable margin itself, as this would represent the actual economic benefit being sought.
It is evident that this discussion directly impacts practical and significant aspects of the case, such as the payment of court costs, the determination of jurisdiction, and the necessary and fair calculation of the loss of suit.
Moreover, the absence of clear guidelines for determining the fair amount in dispute ends up encouraging the frivolous filing of lawsuits, overwhelming the judiciary and harming those who truly need legal protection.
In response to this situation, in a recent ruling by the Court of Justice of Goiás, during the judgment of Theme 42 in IRDR 5481093-44.2023.8.09.0051, the following legal thesis was established:
“In lawsuits aimed exclusively at limiting deductions from payroll loans to the percentage of the consignable margin established by law, the amount in dispute must correspond to the economic value effectively disputed in the process, understood as the sum of twelve (12) monthly installments that exceed the legal margin at the time the lawsuit is filed.”
In this ruling, with great clarity, the reporting judge, Appellate Judge Fabiano Abel de Aragão Fernandes, concluded that the economic benefit is indeed measurable, and this corresponds precisely to the amount that will no longer be deducted due to the limitation of deductions to the legal monthly consignable margin.
Therefore, considering that this amount exceeding the legal monthly limit represents the economic benefit for the plaintiff, it must serve as the basis for determining the amount in dispute.
Moreover, an important message from the judiciary branch in combating predatory litigation is clearly evident, as it discourages the excessive filing of lawsuits that once prevailed. The judiciary branch takes a stand by establishing that setting the amount in controversy at a value different from that which corresponds to the disputed issue, namely, the amount exceeding the legal margin, undermines procedural logic and violates the principles of good faith and the effectiveness of jurisdiction.
The reporting judge also thoroughly dismissed other lines of reasoning regarding the amount in dispute assignment.
According to the decision, since the actions do not aim to discuss the legality of the contracts themselves, nor the interest rates and other charges agreed upon, it is certain that the contract values themselves cannot serve as the basis for the amount in dispute.
Similarly, it was held that the legality of the percentage allocated to the consignable margin is not in dispute, so that amount also cannot guide the amount in dispute.
It was also argued that it would be unreasonable to justify setting the amount in dispute as symbolic because, if the consumer’s claim is upheld, they would receive fully measurable amounts.
In this vein, the establishment of this thesis represents a significant advance, both by guaranteeing legal certainty to the parties involved and by contributing to the regulation of court fees and the determination of jurisdiction.
Thus, based on Theme 42, by establishing an objective and proportional criterion for determining the amount in dispute, it becomes possible not only to mitigate procedural distortions but also to strengthen the institutional role of the Judiciary Branch.
The measure also discourages abusive practices and restores the logic that the legal process should be an instrument of social peace, not speculation. It is certain that, in the medium to long term, predatory litigation is likely to lose ground in this area, paving the way for a more efficient judiciary focused on legitimate claims.
Autor: Lucas Rodrigues Lucas • email: lucas.lucas@ernestoborges.com.br
