Check out what the legislation says about tracking financed vehicles and what is the relationship of this action with privacy issues and the LGPD
In recent days, a subject has been circulating on the internet and generating numerous debates: banks that place trackers on cars or motorcycles. These institutions would be installing the devices in cars without the consent of buyers and the big question is whether this is allowed by law.
Before understanding the reason for this action and whether it is legal or not, it is necessary to understand how vehicle financing works and what its implications are for those who are purchasing the car.
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Car financing is a credit agreement that works like a loan, to make it possible to buy a vehicle for those who do not have the full amount in hand. While the bank provides the necessary amount for the acquisition, the buyer agrees to pay it back. This amount is divided into installments over a period established in the contract and plus interest and other costs.
The most common modality is CDC (Direct Consumer Credit), in which the financial institution lends the money directly to the consumer to purchase the good. In this way, your debt becomes with the bank and the car remains in your name, but with fiduciary alienation until the debt is settled.
It is important to note that, while the debt is not fully settled, the buyer retains possession of the asset, which, in turn, remains as a guarantee of payment. If the debtor does not honor the debt, the alienated car may be subject to search and seizure action.
Now that you know how financing works, you can understand the cases that are being talked about so much on social media.
In recent months, consumers have reported discovering trackers placed on their vehicles without any prior communication. In some cases, the existence of the equipment was only noticed after mechanical maintenance or inspection.
These devices work as a control mechanism by banks in response to default. Imagine that you bought a financed car, but faced financial problems and were unable to pay the installments. In this case, the financial institution has the right to take your car to take it to auction and the tracker helps to locate the vehicle that will be collected.
In addition, the installation of this type of device may presuppose the collection of geolocation data that can be stored by banks. After all, what does Brazilian law say about these issues?
According to the Consumer Protection Code, it is the duty of the financial institution to provide clear, adequate and ostensive information about all contractual clauses and practices related to the contract. When there is financing with fiduciary alienation, the asset remains the bank’s resolvable property until the debt is fully settled. But, according to lawyer Daniel Romano Hajaj, “this does not mean that the consumer loses his direct possession or his fundamental rights”.
For the legal professional, installing a tracker without the buyer’s consent is problematic:
“Even if the vehicle is fiduciarily sold to the bank, this does not authorize the financial institution to act outside the law. The installation of a tracker without unequivocal consumer awareness can constitute a violation of the duty to inform and even an affront to privacy”
Another sensitive point involves the General Data Protection Law (LGPD). A tracker collects geolocation data, which is considered personal data.
Daniel Romano Hajaj warns that geolocation is sensitive data in the context of the citizen’s private life. “The bank cannot simply collect, store or use this information without an adequate legal basis and valid consent. Otherwise, there may be a violation of the LGPD.”
With the increase in delinquency and the banks’ guarantee control mechanisms (trackers) becoming increasingly common, this issue tends to become more common and gain more space in the Judiciary.
If the client discovers the existence of a tracker that was not informed to him, the lawyer recommends:
Hajaj points out that each case must be analyzed individually:
“If it is proven that there was an installation without consent or a valid contractual provision, it is possible to discuss compensation for moral damages and even possible nullity of contractual clauses. The financial institution has legal means to protect its credit, such as the search and seizure provided for by law. What cannot occur is the adoption of hidden practices that put the consumer in a situation of vulnerability.”
