Extrajudicial search and seizure of fiduciary alienation on movable assets is regulated

On June 04, 2025, the Brazilian National Council of Justice (“CNJ”) published Provision No. 196, governing the consolidation of fiduciary property, as well as the extrajudicial search and seizure of movable assets, within the scope of the Registries of Deeds and Documents. This regulation results from the changes introduced by the “Legal Framework for Guarantees”, established by Law No. 14,711, of October 30, 2023, which introduced relevant legislative modifications, including those that apply to Decree-Law No. 911/1969.

The Legal Framework for Guarantees provides for the “dejudicialization” of search and seizure procedures for the purpose of executing fiduciary guarantees on movable assets.

The legal provision for “dejudicialization” streamlines the traditional methods of enforcing fiduciary guarantees on movable assets, granting the enforcement procedure speed, legal certainty, and efficiency, while providing greater efficiency in creditors’ efforts seeking to preserve and recover their credit rights.

Provision No. 196 regulates, at the administrative level, the operation, by extrajudicial notary offices, of the enforcement procedure for these types of guarantees, as provided for in the Legal Framework for Guarantees. It is worth noting, however, that the implementation of extrajudicial search and seizure of movable assets does not apply to cases in which vessels and aircraft constitute the object of the fiduciary guarantee, as they are subject to a specific legal regime involving real estate norms.

According to the new regulations established by Provision No. 196, extrajudicial procedures for consolidating fiduciary property and search and seizure of movable assets will be carried out by the Registry of Deeds and Documents located in the debtor’s domicile or at the location of the asset (“registry office”). It is interesting to note that, in this new landscape, the responsibilities of registry offices will have an enforcement nature, expanding the scope of traditional registry functions.

As for the formal execution of the fiduciary alienation contract, it must have an express clause addressing the possibility of extrajudicial execution of the guarantee provided. Additionally, it must include the imperative description of the asset, an indication of the amount of the debt, payment conditions, charges, the grounds for debtor default, and the criteria for determining the outstanding balance of the guaranteed debt.

The fiduciary creditor may opt to consolidate ownership and carry out the extrajudicial search and seizure procedure for the asset directly at the registry office. Thus, the procedure must be initiated by means of an electronic request, to be filed with the Central Registry of Deeds and Documents for Legal Entities (“Central RTDPJ Brasil”), a member of the Electronic Public Registry System (“SERP”). The debtor’s default must be notified electronically, allowing the debtor a period of 20 days to offset the payment or file an objection to the fiduciary creditor’s claim for enforcement.

The lack of response or payment by the fiduciary creditor will authorize the consolidation of ownership and, as the case may be, trigger search and seizure measures for the collateral asset. Therefore, the search and seizure request may be officially executed after the deadline for payment or voluntary delivery of the asset has expired, without either of these measures having been completed by the debtor.

The responsibility for implementing the search and seizure procedures will fall on the notary officer, who is legally authorized to place administrative restrictions on the circulation of the corresponding asset in the registration systems. Such entry includes the recording of information about the search and seizure procedure of the motor vehicle (when this is the collateral asset) in the Brazilian National Registry of Motor Vehicles (“RENAVAM”). It is worth highlighting that the provisions of the Legal Framework for Guarantees applicable to the extrajudicial search and seizure in question do not confer any coercive force on these procedures, and the notary officer must always comply with the principles of legality and protection of personal data, in accordance with the Brazilian General Data Protection Law (“LGPD”). The challenge by the fiduciary debtor regarding the fiduciary’s enforcement claim, in turn, must be limited to  calculation errors or non-payment, and must be decided by the notary officer within five business days, including the possibility of filing for mediation proceedings.

The debtor may reverse the consolidation of ownership by offsetting the debt and charges in full within five business days after the asset is seized. After this period has elapsed without a reversal, the creditor may proceed with the sale of the asset, and must account to the debtor for any amount that represents a balance to be paid or in excess in relation to the amount of the debt guaranteed by the asset transferred in trust.

Regulating fees, which are relevant in the operational context of search and seizure and extrajudicial execution of movable assets, remains provisional. This provisional status should be extended until state governments publish specific regulations on the matter.

All steps involving the procedure must be recorded and monitored electronically through Central RTDPJ Brasil, which provides for interoperability with traffic agencies, financial institutions, and protest notary offices, providing greater transparency, traceability, and efficiency to the extrajudicial execution of fiduciary guarantees.

Demarest’s Real Estate, Dispute Resolution, and Banking and Finance teams remain available to provide any further information.