The 1973 Brazilian Code of Civil Procedure (“1973 CCP”) adopted as a general rule the service of process via mail, according to article 224, as amended by Law No. 8,710/93. This rule resulted from a change made in the previous system for communicating procedural acts, which provided for service of process through court official.

At the time of such change, the legislator was already concerned with the search for a more expeditious and effective form of procedure, considering that the service of process through a court official increased court costs, was slow, and gave way to abusive conduct on the part of the defendant.

However, on the grounds of guaranteeing greater certainty to the service of process procedure, the 1973 CCP expressly forbade the issuance of summons by mail in some scenarios set forth in article 222, including in collection suits (article 222, d). Thus, summons of debtors in collection suits founded on extrajudicially enforceable instruments could only happen through a court official, under penalty of nullity.

With the advent of the 2015 Brazilian Code of Civil Procedure (“2015 CCP”), this prohibition was excluded. According to article 247, service by mail will not be possible only in suits bought by the State; when the person to be served is incapable, an entity governed by public law, or resides in a place not reachable by regular mail; or when the plaintiff justifiably requests the summons in a different manner.

The absence of an express prohibition, however, was not sufficient to confirm the correctness of case-law authorizing service by mail in collection proceedings, insofar as paragraph 1 of article 889 of the 2015 CPP expressly refers to the writ of summons and to acts for attachment and appraisal of assets, which presuppose the participation of a court official at the time of service. This gives room for the understanding that article 889 provides for a specific type of service for collection suits, as an exception to the rule of article 247. In this regard, we cite the decision rendered by the Court of Appeals of São Paulo in interlocutory appeal No. 2175777-09.2016.8.26.0000.

More recently, the same court has held that service of process by mail is possible for collection suits, in view of the absence of a legal prohibition and because it is a measure aimed at protecting creditors. In addition, acts such as attachment and appraisal of assets can be performed at a later stage, after service (Interlocutory Appeal No. 2111105-55.2017.8.26.0000).

New restatement of law by the Federal Justice Council

The matter was the object of a deliberation by the First Working Committee on Civil Procedural Law, held by the Federal Justice Council on August 24 and 25, opportunity when it approved the Restatement of Law No. 85: "In collection suits grounded on extrajudicial or judicial instruments (article 515, Paragraph 1, of the CPC) summons by mail is acceptable.”

This solution to the issue seems to be the most suitable to the 2015 CPP, mainly because the new Code does not set forth an express prohibition on summons by mail in collection proceedings and values speed and efficiency in actions taken by the Judiciary. Effectiveness of judicial relief is guaranteed only when the winner receives everything to which it is entitled to under the law in the shortest possible time and at the lowest possible expense.

It is clear that summons by a court official, in addition to being more onerous on the party and the Judiciary, does not guarantee the desired speediness, especially when the opposing party resides in a different district. It is not uncommon to have delays of two weeks to one month for completing such acts as typing, sending, and completing a summons.

The modernization of the judicial procedural system also made the presence of a court official to cease a debtor’s asset unnecessary whereas online attachment is being widely used in collection proceedings. Electronic proceedings, in turn, allow for immediate knowledge of the entire content of the suit, without the need to explain to the debtor the consequences of not complying with the judicial order. In this sense, there is no obstacle to a full exercise of the defense rights by the defendant.

Organization in order not to miss deadlines

The new procedural rule, however, requires maximum attention to the receipt of judicial correspondence, especially by companies that receive a considerable volume of summonses and subpoenas for court proceedings at their headquarters and branches every day. Indeed, although many companies have established systems for receiving summonses and subpoenas by mail, this type of court correspondence is not immediately referred to the company’s legal department, even when measures relating to collection proceedings are urgently required.

As per article 829 of the 2015 CCP, debtors will be served and notified to pay the owned amounts within three days counted from the service. When this period has elapsed without payment, the debtor’s assets (financial, movable, non-movable) will be subject to attachment. In addition, a 50% reduction in the amount of the attorneys’ fees will only occur if this payment is made within such three-day period (article 827, Paragraph 1).

In this context, although the possibility of service by mail in collection proceedings is an improvement brought by the new Code aimed at ensuring the creditor’s payment , this change will require an even higher level of organization on the part of companies in receiving court correspondence in order to avoid asset attachments without them even being aware of the collection suit, and, in the cases where there is an intent to pay the debt, in order to secure that the companies do so within the legal timeframe that allows for the reduction of fees set forth in paragraph 1 of article 827 of the CPC.