The Second Panel of the Superior Justice Tribunal (“STJ”) unanimously decided in the judgment published on April 25th 2018 that the property subject to fiduciary alienation, because it does not belong to the debtor’s assets, cannot be subject to attachment, but there is no impediment so that the trustor’s rights related to the agreement are constricted, independent of the agreement of the fiduciary creditor, in the following terms:
“CIVIL PROCEEDINGS.SPECIAL APPEAL. RIGHTS OF THE FIDUCIANT ON AN ASSET SUBMITTED TO A FIDUCIARY ASSISTANCE AGREEMENT ATTACHMENT.
1. The claim of the Treasury does not consist in the attachment of the asset subject to fiduciary alienation, but of the rights that the debtor has on the thing.
2. Such claim is contained in the jurisprudence of the Superior Court that, in allowing the attachment of the rights of the debtor from the trust agreement, does not require the consent of the fiduciary creditor. (…).
3. It is established, as appropriate, that the attachment, in kind, does not have the power to exclude the exercise of the rights of the fiduciary creditor resulting from the fiduciary alienation contract, otherwise we would be permitting interference in the contractual relationship without law that establishes it. The rights of the debtor, the subject of the attachment, shall survive to the extent and in proportion to the obligations arising from the fiduciary alienation agreement.”