In Brazil, the president of the Supreme Court favors a private bank defended by the nephew of another minister in a default of US$ 440 million in a shareholder
A scandal that started in September 2020 has shaken the Federal Supreme Court (STF) the Supreme Court of Brazil, provoked by the president, Minister Luiz Fux, and also involves the law firm of the family of another Minister, Luís Roberto Barroso and the bank the most important private company in Latin America, Itaú Unibanco, in a billionaire default on a shareholder, who bought and paid for a lot of shares, but never received them. And even with a final and unappealable court decision (the bank no longer has any resources) the shareholder can receive, thanks to an illegal interference carried out by Luiz Fux through an auxiliary body of the Brazilian justice, whose attributions are limited to administrative matters, the National Council of Justice (CNJ).
The process has been going through the Court of Justice of the State of Pará for 20 years, and since 2020 it has been stopped due to a monocratic and abusive decision by Luiz Fux. On September 18, 2020, Judge Rosana Lúcia de Canelas Bastos, determined that BRL 2.09 billion (U$ 440,000,000.00) be blocked in the accounts of Banco Itaú. The value refers to a lot of ITUB4 preferred shares, sold in the 70s, but never delivered or paid dividends by the bank.
The shareholder sought justice, and after 18 years, three accounting investigations, a conviction against Banco Itaú for bad faith litigation and numerous appeals, it seemed that the case would come to an end. But another battle was beginning, this time, played on the threshold between the legal and the illegal, causing immense wear to the Brazilian judiciary.
After the judge ordered the blocking of the amounts, the board of Banco Itaú fired 76 lawyers who were handling the case, and hurriedly hired BFBM Lawyers, a firm managed by Rafael Barroso Fontelles, nephew of the Minister of the Federal Supreme Court, Luís Roberto Barroso, where The minister’s daughter Luna Von Brussel Barroso also plays.
In a quick action, unprecedented in Brazilian justice, BFBM filed a disciplinary complaint against the judge, the Internal Affairs Department of the Court of Justice and the Internal Affairs Department of the CNJ, alleging that the magistrate was being dishonest in her decision and that it would be favoring the shareholder. releasing to him the supposed blocked money.
Minister Luiz Fux then, acting as interim corregidor of the CNJ, suspended the judge from the process through a phone call, which is also unusual, and he did not even bother to verify the information passed on by the BFBM. Fux has been keeping the case on hold ever since.
But the accusations against the judge are unfounded and Fux’s interference illegal. The money was never blocked in the bank’s accounts, because Itaú claimed a ‘system failure’ which would have prevented the blocking, so there was no way for the judge to be releasing money that did not exist. The accusation of having been partial also finds no support in Brazilian law, which establishes the non-communication of judicial blocks in advance, as established by Article 854 of the New Code of Civil Procedure, which was also prepared under the supervision of Luiz Fux:
Art. 854. In order to allow the attachment of money in deposit or in financial application, the judge, at the request of the creditor, without giving prior notice of the act to the executed, will determine to financial institutions, through an electronic system managed by the supervisory authority of the national financial system , which makes existing financial assets unavailable in the name of the debtor, limiting the availability to the amount indicated in the execution.
In addition, the limits and attributions of the CNJ are established by the Federal Constitution, and have already been questioned in the Supreme Court, which maintained the impossibility of the body intervening in judicial decisions, that is, Fux contradicted the Constitution and the Court’s jurisprudence to favor the bank.
“It is not up to the Council (CNJ) to supervise, re-examine or interfere with the effects of a judicial decision, regularly issued by a member of the Judiciary, in the exercise of its jurisdictional function. The attributions of the council are provided for in paragraph 4 of article 103-B of the Federal Constitution”. – Supreme Court decision.
The bank claims that it “does not comment on judicial decisions in progress”, Minister Luiz Fux is silent about the episode and Luís Roberto Barroso claims that he ‘always declares himself as a suspect in cases involving BFBM’.
The interference
In the session in which the complaint against the judge began to be judged, on October 6, 2020 (video below), Fux behaved with courage, referred to the magistrate and after a request for views, he no longer took the complaint to the agenda, maintaining the judge as a suspect, and the bank without paying what it owes.
It is practically impossible to believe that the bank chose Barroso’s nephew’s office at random. It is also difficult to accept that the CNJ, the body responsible for evaluating the conduct of magistrates and the organization of justice, is willing to be a mere swindler of a deadbeat bank, a persistent debtor, used to not honoring commitments to its shareholders.
Below are the allegations made by Luís Roberto Barroso’s nephew against Judge Rosana Lúcia de Canelas Bastos. It is important to note that they were repeated by Fux when he brought the case to the attention of the other counselors. The same complaints were presented to the Internal Affairs Department of the TJPA, which ruled it unfounded and kept the magistrate in the process, awaiting only the outcome of the judgment in the CNJ. Knowing the illegality of his decision, Fux has been refusing to base the complaint, while the bank continues to try to remove the judge or declare her suspicious, so that the process is redistributed and the bank gets more time to default.
The false allegations against the judge:
Access to the file: the lawyers were not prevented by the judge. The process is being processed in judicial secrecy at the request of Itaú, and only qualified parties can access it. The lawyer who tried to see the process had no power of attorney, however, what he had not only saw, but photographed and forwarded to others. That is, there was no restriction of defense. Fux lied to the counselors.
Partiality: Fux claimed that the judge was partial in the decision because she did not inform the bank about the blocking of the accounts. The New Code of Civil Procedure (CPC) determines exactly the opposite, that the magistrate must not communicate the party to avoid emptying the accounts. And the New CPC was written under the supervision of Fux. The minister lied to the counselors.
Withdrawal of amounts: The judge determined the block on September 18, 2020, but between the 17th and 25th of September, the bank claimed that it had ‘instability problems’ between its system and SISBAJUD, which prevented compliance with any blocking order. All had to be redone after the 25th. Without the judge knowing how much had been blocked, she would not have been able to issue an injunction for withdrawal, and we are talking about R$ 2.09 billion, therefore, it is not an amount that anyone will withdraw in the cashier’s mouth. Fux lied to the counselors.
Complaint against the judge: the bank presented the disciplinary complaint against the magistrate Rosana Lúcia de Canelas Bastos to the CNJ and to the Corregedoria of the Court of Justice of Pará, which had already verified the entire process, and understood that the judge acted strictly within the law, and kept it at the forefront of the process, awaiting only the conclusion by the CNJ.
The video of the session was even deleted from the CNJ page on Youtube, without any explanation, and was reposted in the same way, in April of this year, after we called attention to this very suspicious maneuver.
The disgraceful ‘Fux instance’
The case of Fux’s criminal interference was revealed through publication in the Diário da Justiça do Pará, when Judge Rosana Lúcia de Canelas Bastos published her defense. She was accused of denying the lawyer Rafael Barroso Fontelles, Luís Roberto Barroso’s nephew, access to the case file, since he had no power of attorney; she was accused of ‘not having previously communicated the blockade’, which goes against the provisions of the New Code of Civil Procedure; and the most serious, she was accused of having given an ‘injunction to withdraw the amounts’ that had not even been blocked, since SISBAJUD, the judiciary’s blocking system, presented inconsistency only with the Itaú system, between the 17th and 25th of September. The judge’s order, which was not carried out, was given on the 18th.
Action 0035211-78.2002.814.0301 has been pending in the Pará court for 18 years. It is a corporate shareholder, entitled to receive, from Itaú, just over R$ 2 billion. To be exact, BRL 2,090,575,058.25. The lawsuit became final in 2014, and since then it has been waiting for execution, that is, the bank has to pay. The original judge in the case, Célio Petronio, declared himself a suspect, alleging intimate jurisdiction. The process was then redistributed and Judge Rosana Lúcia de Canelas Bastos, after reading the 10 volumes of the lawsuit that had dragged on for 18 years, decided for the obvious, to determine the judicial blocking of Itaú’s accounts in the amount of the debt.
The blockade was determined on the 18th of September. Searches were carried out in 76 CNPJs of Itaú Unibanco S/A and Itaú Corretora de Valores Mobiliários e Câmbios S/A. Not a single dollar was found in all accounts. Nothing, zero.
The judicial blocking is done by sending the judge’s communication to the Central Bank, which in turn informs the financial institutions about the amounts that need to be blocked in a specific CNPJ or CPF.
And this is done without communicating the party, that is, the ‘blocked’ only knows when he is going to pay a bill and discovers that he has no balance. The amount is then transferred to a Judiciary account, and later the creditor’s lawyers can ask for what the justice calls a ‘survey’, which is done through a document, signed by the judge authorizing the withdrawal of the judicial account. But none of that happened. Since, mysteriously, Itaú, the second largest bank in the country, did not have a single penny in its accounts, nothing was blocked.
Even so, the bank’s lawyers made contact with the judge, as detailed in the publication in the Justice Diary:
“I received a call on my cell phone from the number (91) xxxx-5778, having identified himself as the lawyer Dr. Jean Carlos Dias, who said he was hired by Banco Itaú only in relation to the blockade. I informed that I had carried out the blocking order on 09/18/2020 and that it had already been scheduled, via email, with the Rio de Janeiro lawyer of Banco Itaú, face-to-face service for 09/25/2020 at 9:00 am: 30h, this fact, known to Dr. Jean, according to him. On the same day Dr. Rafael Bittencourt, qualified in the records, had access to the feat, taking photos in his office, having been removed from the process, before his access, only the order not yet released in the Libra system regarding the block“.
At this point, it is worth noting that in Itaú’s complaint to the CNJ, the bank claims that “there was no notification of the blockade” and the judge didactically explained to the lawyers that:
“I did not make the decision of the blocking order available on 09/18/2020, because it is not necessary to give prior notice of the act to the executed, according to the caput of Art. 854, NCPC, which justifies, according to the doctrine, the risk of the defendant emptying his accounts to avoid attachment“.
On the 25th, the report continues, the magistrate received the lawyers of Banco Itaú and the representatives of the creditor shareholder.
And she says:
“at the time the SISBAJUD System was accessed and the said System’s response was due to the inexistence of blocked amounts, as stated in the details of the court order for the blocking of amounts, of Protocol No. parties on this date. On the same occasion, the receipt of the protocol for the blocking of values, from the sisbajud system, containing 04 (four) pages, as well as the details of the court order for the blocking of values, containing 08 (eight) pages, in the case file. I record that there was no request for withdrawal/release of amounts in the case file, by either party, before or after the determination of the block, which in the end proved to be fruitless, with the result being zero reais. Therefore, this magistrate could not even consider an alleged request for a withdrawal that was non-existent in the records, of amounts that were not blocked, and the Defendant was aware of the non-existence of a request for collection of amounts, as he had access to the records, on 09/21/2020 in office, through Adv. Rafael Bittencourt, the only person authorized to do so by the Respondent before sending the case to the secretariat”.
On the 24th, the day before the hearing with the lawyers, the magistrate had received a call from Brasília, more precisely from Minister Luiz Fux’s office:
I also record that on 09/24/2020, I was summoned at 10:14 am by my cell phone, by calling 061-xxxx 4776 – by the Assistant Judge of the Presidency of the CNJ – that Minister Luiz Fux determined that I would not should release any amount, refraining from performing any act in this process in this regard, as well as making this process available to lawyers”.
In day. 30, the bank’s lawyers forwarded an email where they claimed the money was “available”, which never happened. In addition to the email, they forwarded system screens that showed the exact opposite.
