The recent modification of Art. 560 C.P.C. marks another stage in the confusing journey of the legislator in the Non-Performing Loan world – debt collection.
In the last 3 years there have been a series of interventions regarding executive and insolvency procedures, apparently useful but not congruent. To quote just two examples:
- Legislative Decree February 14, 2016, no. 18, as amended by the 2017 Budget Law, no. 232 subsidies were introduced for the purchase of properties at auction; the validity of the rule concerned the documents issued up to 30 June 2017 and has not been further extended;
- Through the example of some courts considered “virtuous”, an active custody system was adopted that included the guardian’s early access to the property (contextual to that of the technical advice) and the beginning of good-natured accesses – forced in time to deliver the vacant property to the transfer decree. With the recent modification, we return to the old practice and consolidate it.
The theme is not parting for the debtor or the creditors; this situation of uncertainty brings disadvantages to both the debtor and the creditor.
The legislator still does not understand that this market segment does not need any change, but only certainties and stability. It is not important to know if a property will be released before or after the transfer decree, at the first or third access: the important thing is to know it, with certainty, from the very beginning.
It should always be remembered that the debtor themselves is the beneficiary of the judicial sale: in some cases, they may benefit from it in cash, in others in the reduction of their debt exposure. It is therefore logical that a sale at a reduced price penalizes both scenarios.
Ex parte creditoris, it remains difficult to understand how it is possible to tolerate and certify that at judicial sales the buyer pays today a good of which he will have title of property after 3-4 months and will have possession at a date to be allocated.
The objective of this article is not to highlight that creditors (banks, funds, etc.) have been damaged by the legislator’s choices. Apparently, this time the creditors have been penalized, and with the previous changes have instead had some benefits; in our opinion, none of the two statements can be correct. A law that encourages the access to auctions for only a few months creates a climate of uncertainty and confusion among operators that far exceeds all the positive effects created; Simplifying, it was better not to do it either.
Industry professionals are calling for stability, consistency, clear rules applied. Knowing exactly how long it takes for a distribution plan or for the liberation of a property puts everyone in front of their responsibilities in an equivalent way, creates a transparent market and protects the rights of all, including debtors.
Emanuele Grassi
