Execução extrajudicial na alienação fiduciária de imóveis : análise da constitucionalidade com base nos direitos fundamentais.

Abstract

The purpose of this monograph is to investigate the extrajudicial foreclosure in the fiduciary alienation of real estate, which was instituted by Law No. 9,514/1997 and modified by Law No. 14,711/2023 (Legal Framework for Guarantees), in light of constitutionality regarding fundamental rights. Through a clear exposition, this study aims to demonstrate how the administrative-registry procedural rite of expropriation occurs and to analyze the constitutionality of the act. In this sense, the central research question investigates whether the extrajudicial foreclosure procedure respects the constitutional principles of due process of law, the right to an adversarial system, and full defense. For this purpose, an explanatory research based on the deductive method was used, with an analysis of doctrine, legislation, and jurisprudence. As demonstrated, the institute is highly effective in expanding housing credit and reducing systemic risk, and its soundness was attested by the Supreme Federal Court when ruling on Theme 982 of General Repercussion (RE 860,631). Considering the scope of the problem, an intense clash was observed between institutionalist doctrine, which prioritizes economic efficiency, and guarantor doctrine, which focuses on protection against arbitrary expropriations. It was concluded that the extrajudicial procedure is constitutional and essential for the real estate market, but this study suggests that Law No. 9,514/1997 can be improved in subsidiary consonance with the Overindebtedness Law (Law No. 14,181/2021), creating a mediated negotiation stage that balances credit security with the protection of the debtor's fundamental rights.