CREDIT RECOVERY

DEBT RECOVERY

What is it about?

Il Credit recovery it is that activity that allows you to obtain sums of money owed to the creditor under contracts that have not been respected (come, for example, supplies of goods or services) or checks or bills left unpaid.

The recovery activity includes a first phase out of court which takes place through the sending, by registered letter with return receipt. or by certified email (pec), of a letter from payment reminder with which the debtor is ordered to pay the sums due to the creditor within a reasonable time (Usually 15 days), constituting it, at the same time, in mora (with the consequent recognition of the default interest). In the case of nonpayment within the period indicated, the creditor can proceed with the judicial stage That, at the norm, provides for the deposit of a Appeal for injunction before the competent judge for the territory (the Judge of the place where the debtor is resident or has its registered office) and by value (until the reform implemented with Legislative Decree. 10 October 2022, n. 149 – Riform Cartabia – until 5.000 Euro the jurisdiction was of the Justice of the Peace; from 30 June 2023, the competence will be of the Justice of the Peace up to 10.000 Euro).

What is the injunction?

Art. 633 c.p.c. it foresees the possibility for those who affirm themselves owner of a credit right concerning a sum of money can inquire with appeal competent judge to order the debtor to pay, within 40 days, the amount owed to the creditor. Exceeded this term without the due payment having been made, the Decree buys executive effectiveness. The injunction is issued, without first hearing the debtor, only if the lender produces one written test of credit (which can be established by the contract, from the transfer, from invoices, from the accounting records and from any other document certifying the right to payment of the sum of money).

The injunction can also be issued temporarily enforceable in 2 almost:

  1. where there is one written evidence from directly from the debtor;
  2. you his danger in delay, that is, when the creditor runs the risk that while waiting for the 40 days the debtor can deprive himself of his assets, in order to frustrate the subsequent executive procedure.

Attention! In these hypotheses, the injunction is immediately enforceable and the term dei 40 days is foreseen but exclusively for the’Opposition to the injunction.

Opposition to the Injunction.

When the debtor is notified of the injunction, the law permits dispute the existence and/or amount of the credit within a period of 40 days starting from the notification of the Decree. The Opposition proposes itself in the forms of citation or of appeal (in the case of work credits) before the Judicial Office that issued the Injunction. This opens a subsequent phase which establishes a real ordinary judgement, in which it will be up to the opposing creditor to prove the existence of his right to credit “summarily” established in the first stage.

What are the outcomes of the opposition?

In case of rejection of the Opposition, the injunction is confirmed e, if it does not already have one, buy executive effectiveness and becomes definitive.

In case of welcome (even partial) of the Opposition, the injunction comes canceled and the relations between the parties remain governed by judgment acceptance of the opposition which constitutes an enforceable title (in case of partial acceptance, the judgment will recognize only the portion of the credit ascertained in the judgment).

Forced expropriation.

If the debtor does not pay voluntarily, in the term of 40 days or following the ruling of rejection of the opposition, the creditor can proceed with the executive phase e, so, with the foreclosure of the debtor's assets. However, before doing so, is obliged to give notice of the fulfillment of the pecuniary obligation, within 10 days, to the debtor by means of the notification of the’Act of precept.

I elapsed 10 days of notification, the still unsatisfied creditor can proceed with the l’deed of foreclosure, with which the’Bailiff places on the assets identified or on the credits claimed by the enforced debtor towards third parties a constraint of unavailability and destination for the satisfaction of the enforced credit. They can foreclose on the furniture, the car, the current account, prepaid cards, one-fifth of salary or pension, company shares up to real estate.

Through foreclosure, the lender can get, requesting it from the Execution Judge, within 90 days from the executive act, the forced sale of the seized assets or the assignment of credits claimed by the enforced debtor towards third parties.

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