Lord DOCTOR EXCELLENCY JUDGE RIGHT STICK DISTRICT ……………… ..
Case no. ………………… ..
Small claims court
……………………., Brazilian, married, trade, bearer of Identity Card with RG n. 18913.345-SSP / SP and CPF. n. 163 188 658/45, resident and domiciled at Rua Councillor John the Baptist Giriboni, n. 672, Corner of Roses, in this city of Cerquilho, county Tiete, by his lawyer and prosecutor at the end signed protesting by j. the court order within the art. 37 CPC, has been respectfully to the presence of Your Excellency, in the records of the small claims court that is moved through his private company ……………………… ..FACTORING FOMENTO MERCANTIL CONSULTANTS LTD., To offer their embargo to the terms and initial claim, doing it with preliminary and the reasons of fact and law alinhadamente as follows:
Illegitimacy ativaA choked presents itself as a creditor holder of the check n. …., Issued against the Bank …… .. in the amount of R $. ……… (…… ..), And the objector as its emitente.Apresenta said check on pages. 13, by which according to the back of the cartouche is nominal in favor of cracking, however, was not issued nominal and directly to your order. However, stating on the back the signature of the first carrier, it mischaracterizes the endorsement to have sidor the check later filled nominally in favor of cracking, forcing this to say the cause petendi that surrounds it and in what capacity has the cheque.Ao see the objector, here lies below the active illegitimacy deducted intelligently in doctrine, civil adjective law and factoring.É regency law is true that this financial field, jurisprudence aligns interestingly being closely watched here:
Given this understanding, it must be choked to the procedural obligation to tell the cause petendi surrounding said check and as would have occurred to his capture on the parallel market.
1. “Now performing loans, with own means and without raising third-party funds, can not be equated to the specific activities of financial institutions, which consist, as expressed in the legal text, the ‘collection, intermediation or investment of funds own financial or terceiros’. The characteristic feature of so-called `financeiras’ is the capture of public resources in general for investments, the results of which are assigned to the respective subscribers” (HC 2555 – Holy Spirit – rapporteur Min Godoy Island -.. Second tee Federal Court Features – AC De 08.09.1971).
4. “The business of a banker, his actual business does not begin when he uses its own capital; they only start when it uses the capital of others. ” (01) Bagehot, cited ROCK CARLOS GUIMARÃES, encyclopedic Directory code Brazilian law, see. 5, p. 314, no. 17;
This action, the very claim exposed by cracking deserves study face the legal consequences of Resolution BACEN n. 2,144 / 95, which provides for the factoring operation, which leads us forward, to confront the claim with some generic aspects of the factoring agreement, to deal specifically with this operation in the national system and prove the illegitimacy of the active now ……… FACTORING FOMENTO MERCANTIL LTDA ADVISORY this action.
For in its activity, its legitimacy as the required credit, imposes the need to present the contract of the transaction for which he received the check put in charge in this small claims court.
Regarding the comment that follows the cracking should explain and present the regularity of the operation carried out and for which he received the mentioned check, in order to deal with this preliminary active illegitimacy.
Right. Based on the concept of factoring given by Law no. 8,981 / 95 was enacted Central Bank Resolution no. 2144 of 02/22/1995, explaining that any operation practiced by commercial development company (factoring) that does not fit the definition given by Law 8,981 / 95 (art. 28, § 1, letter “c”, item 4) and features private operating financial institution (art. 17 of Law no. 4.595 / 64) provides administrative and criminal offense.
Wherein j terms. this case waiting to deserve welcome and necessary
S.Paulo, ,,, April 2003