INSS: retirement can be pledged to pay debt – 06/23/2023 – Market

The TJ-SP (Court of Justice of São Paulo) began to apply the decision of the STJ (Superior Court of Justice) and has determined the attachment of salary and retirement from the INSS (National Institute of Social Security) for the payment of debts.

In April, the Superior Court ruled that wages of any amount can be seized to settle debts. Before, the attachment was only valid for income above 50 minimum wages (currently BRL 66,000).

In at least three decisions to which the Sheet had access, the judges determined percentages of salary income or retirement that can be pledged, which vary between 10% and 15%, but can reach 30% of income.

In one of the cases, the judges confirmed the 30% discount on the worker’s retirement, convicted of administrative impropriety. The understanding was that the family’s subsistence would not be affected, since the citizen would continue to receive 70% of the income from the INSS.

Furthermore, the person who was sued had other jobs. One of them as an X-ray technician in a hospital in the interior of the state of São Paulo, and he also received another benefit paid by SPPrev (São Paulo Previdência). The professional’s net income fluctuated between R$ 5,000 and R$ 8,000 per month, says part of the process.

The judge responsible for the case determined that the INSS should be notified to make the 30% discount directly on the benefit payroll and deposit the amount in a court account. “The discount will last until full payment of the debt”, says the decision.

Lawyer Antonio Nachif, a specialist in conflict resolution at Dias Carneiro Advogados, says that the understanding of the STJ that allows attachment is not valid only for wages paid in contracts with a signed contract, that is, by the CLT (Consolidation of Laws of Work) and can be applied to income from self-employment, as well as to pensions.

The specialist also explains that it is necessary, first, to look for other seizable assets, in addition to guaranteeing the constitutional principles of reasonableness and proportionality so as not to compromise the survival of those who are prosecuted. “If you have a less serious form of pawning, you have to follow that form,” he says.

“It has to be a proportion of the salary so that the person can live, a percentage that is verified case by case”, he says.

Lawyer Adriane Bramante, president of the IBDP (Brazilian Institute of Social Security Law), says that the TJ’s decisions are in line with what the Superior Court determines. According to her, in one of the cases she attended, the client had his INSS retirement pledged to pay a legal labor debt of his company.

“If the STJ decided that it can pledge anyone, whatever the nature of the salary, this also includes social security benefits”, he says.

For Adriane, Justice needs to analyze each case, according to the retiree’s income and survival conditions. “The individual situation has to be analyzed, because it may be that the person only has retirement income, has no other source, and the discount on the benefit to pay debt can have consequences on the family’s subsistence.”

Rômulo Saraiva, a lawyer specializing in pensions and a columnist for Sheetstates that Justice is moving to end the effects of the so-called absolute unseizability of wages, which prevents the seizing of this type of income up to a certain amount.

According to him, in Pernambuco, where he operates, judicial decisions have also followed the STJ and determined the attachment of pensions. “Today creditors have been successful — in increasingly common decisions throughout Brazil — in pledges of 10% to 30% of retirement values.”

“I understand that this possibility of attachment should be seen with parsimony”, he says.

The case-by-case analysis has been carried out by the TJ-SP. In another decision, the judges denied the attachment of any percentage of the retirement of an INSS insured person who received two minimum wages. The attachment request had been made by a furniture company due to a debt of R$ 6,000.

Nachif claims that the citizen needs to defend himself in the process, proving that he will have subsistence difficulties.

Other cases

In one of the decisions, on May 17, the Private Law Chamber of the TJ-SP accepted part of the debtor’s appeal and reduced the attachment from 30% to 10% of gross income.

“The percentage postulated by the appellant is excessive [30%]. It is more feasible to establish the attachment at 10% of the gross remuneration, since, certainly, the net balance of the appellee’s remuneration would be impaired for survival purposes if the seizure of such a large slice of his earnings is granted [30%]”, says part of the decision.

In another process, the agency also reduced the share to be pledged from 30% to 15%. In the opinion of the judges, reducing the percentage complies with the constitutional principles of reasonableness and proportionality, without harming the debtor’s subsistence, being a “modest percentage that does not harm his subsistence”.

In the res judicata, the worker holds the position of parliamentary advisor, with a net monthly salary of R$ 12,091.95. The professional had already had a partial blockage of other amounts due to the debt, which reaches R$ 272 thousand.

Student has accounts blocked due to college debt

A debt to the faculty after receiving a postgraduate scholarship from PUC-SP (Pontifical Catholic University of São Paulo) led text proofreader Luciana Mendonça, 44, to have her accounts blocked by court order.

Luciana joined PUC in 2017 to study for a master’s degree. At the time, she got a scholarship from Capes (Coordination for the Improvement of Higher Education Personnel) of R$ 1,500, which was transferred in full to PUC. The remainder was funded by the university.

“I had 24 months to finish the course, the scholarship validity period. If I needed more time to finish the course, I would have to pay the full amount. semester,” he says.

Today, this debt stands at R$ 24,000 and, in early June, the professional received information that amounts deposited in her MEI (Individual Microentrepreneur) legal account will be blocked. In March 2022, however, R$ 500 that were in a savings account were blocked to pay the debt.

“In March of last year, I became unemployed. I had just received my salary from the company I was fired from. The R$500 that I had in a savings account to pay debt and prescription drugs were blocked. I turned to the Public Defender’s Office, which asked for the money back, but we couldn’t,” he says.

According to her, PUC even approached her to make an agreement, but because she worked as a legal entity, there were no conditions. “I’m always going back and forth between jobs. Today, what I can pay is R$ 350 a month.”

In order to survive, she has been receiving the income for the services rendered in an account of a friend. “I’m using a friend’s account, but today’s financial life is almost entirely digital, which has caused a lot of inconvenience. Not being able to use an account because you’re afraid of not being able to support yourself due to student debt is extremely humiliating.”

Social worker Priscila Santos Silva, 41, had a scholarship from PUC-SP in college. She had a 30% discount and paid R$498 in monthly fees between 2003, when she joined, and 2009, when she completed her graduation.

The professional did not have blocked accounts, but recently received notice that the goods will be blocked. In her case, the process was opened against her father, guarantor of the contract, who has already died. According to her, all attempts at agreement were ineffective. “There was a proposal for payment without interest, which was not accepted.” The debt today is R$ 130 thousand.

In a note, PUC states that it offers full and partial scholarships in all courses. Today, 22% of students are scholarship holders in the philanthropy quota. The university also says that students with debts have the conciliation and collection center in which students, “within financial and academic criteria”, can negotiate.

According to the institution, collection actions are proposed as a last resort, “by ex officio duty”, and there are always hearings in which conciliation is attempted. The percentage of those who have the request for attachment of goods reaches 3%, he says. “Most of them only looked for the institution after the judge had determined the attachment”, says the note.