Legislative decree no. 132/2014 on civil law reform has modified the proceeding of forced execution, specifically the queries that the judicial officer may perform on creditor demand when seized assets are insufficient.

What changes?

First, the reform repeals [1]:

1. the possibility for the judicial officer to inquiry tax registers and other public databases with the purpose of researching assets or credits to be submitted to forced execution when attachable assets are not identified.
2. the obligation, when the query involves more parties, to indicate complete identifying details.
3. the possibility for the judicial officer to require the police support.

It is established that, upon application by creditor, the President of Court competent over the debtor’s residence or domicile, may authorize the judicial officer to research assets to be seized via internet. The authorization is subjected to verification of the applicant party ‘s right to proceed to forced execution.  In all events, the application shall include both the e-mail address and certified e-mail, fax number of the lawyer.

Next, the President of the Court authorizes the research of attachable assets via internet.

Particularly, the judicial officer may access to:

1. Tax registers, including register of financial reports;
2. Vehicle register ((PRA);
3.    Social security (INPS) databases.

In order to collect all relevant information regarding goods and assets to be subjected to forced execution.

Once inspection via internet is carried out, the judicial officer draws up the minutes reporting the investigation and queried databases’ outcome.  The judicial officer communicates information and queried databases’ outcome to creditor by fax or e-mails.

Then creditor shall indicate the assets that may be seized to the judicial officer within 10 days after relevant communication. If failing to do that foreclosure request expires.

At this stage the procedure is split into two parts.

The identified assets are available to creditor and located in the relevant territory where the judicial officer operates. The judicial officer may access the assets and initiate ex officio fulfilments connected with the choice of the assets to be seized, foreclosure and custody of the attached assets.

If assets are in a territory different from the relevant territory where the judicial officer operates, the latter issues a certified copy of the report to creditor who submits it to relevant the judicial officer within 15 days after its receipt. If failing to do that penalty of nullity occurs.

If that judicial officer is not able to find debtors’ asset identified by databases over the territory because promptly concealed by the debtor, the judicial officer will order debtor to show the site where the asset is within 15 days, warning him that failure to disclose or distorted communication are criminally punished.

Identified assets and goods are held by third parties

The judicial officer may automatically notify the statement to debtor and to third parties including information about:

– claim details;

– enforcement order and order to pay;

– Certified email of the lawyer;

– location where he / she has a domicile or an address for service;

– injunction;

– request to the debtor to declare where he / she has domicile or an address for service;

– informing the debtor who may require having attached assets or goods replaced with a sum of money;

–notice to third parties about not disposing of assets or due sums.

In such event the statement is notified to third parties in summary, including exclusively data which refer to the latter.

If results of databases identify more credits or more assets, regardless of the parties who hold them, judicial officer may proceed to forced execution of assets selected by creditor.

Creditor may decide to personally participate in researching attachable assets via internet.  In such event the judicial officer shall communicate to creditor 3 days before (timing can be reduced in urgent cases), the date (within 15 days) and time when the judicial officer makes queries.

 The reform introduces a new rule [2] regarding early closure of enforced execution.  Specifically, the judge may require an early closure of enforced execution proceeding when it is not possible any more to achieve reasonable results to meet creditors’ needs keeping also in consideration the relevant costs for proceeding’ s continuation, probabilities of settlement and estimated market value of the asset.

What are the limits of enforced execution in the framework of on-line foreclosure?

We are waiting for a specific Ministry of Justice decree which together with the Ministry of Interior and the Ministry of Economic Affairs and Finance, after hearing the opinion of the Authority of personal data protection, detect limited cases and conditions to access on-line databases, conditions of processing and data retention, including relevant protection of debtors’ confidentiality.

The courts of Naples, Mantova and Pavia have already stated that creditor is immediately authorized to obtain information from database without waiting for the implementing decrees.

In summary, no breach of privacy because the queries will be performed by administration and not directly by creditor. Therefore, hard times for debtors who have no escape route any more.

[1] Article no. 19 paragraph no. 1 letter d) legislative decree no. 132/2014 repeals article no. 492 paragraph no. 7 Civil Procedure Code and modifying article no. 492 paragraph no. 8 Civil Procedure Code and enters article no. 492 bis Civil Procedure Code; article no. 19 paragraph no. 2 letter a) legislative decree no. 132/2014 introducing articles no. 155 ter and 155 quater implementing provisions of Civil Procedure Code

[2] Article no. 19 paragraph no. 2 letter d) legislative decree no. 132/2014 repeals article no. 164 paragraph no. 7 implement provisions of Civil Procedure Code

Author: Erica Venditti
Source: Edited by Credit Village