The purpose of expropriation is, of course, to allow anyone who has a credit not satisfied to recover their money through the levy and subsequent sale of these assets. The expropriation, depending on whether it is carried out on movable or immovable property, takes the name of the property or real estate. Let’s see shortly the characteristics and the differences are mainly of these procedures.
Real estate and movable foreclosure: how does it work?
When you have a credit and you have a valid executive title (as can be a sentence issued by the Court), you can start a procedure to recover your credit by withdrawing and selling the debtor’s assets. As mentioned, the procedure begins with a deed of attachment, with which the debtor is ordered not to prejudice in any way the success of the execution by intervening on the seized assets.
The delivery of this deed, drawn up by a lawyer, and the concrete identification of the assets to be seized, especially if they are movable, is carried out by a bailiff, who in many cases also makes a first estimate of the objects he has found.
Subsequently, the case passes to the Court, again through the action of its lawyer who physically enters the case. And here come the first sore notes for the creditor, who, in addition to the fee of his lawyer, is required to pay a unified contribution, a kind of taxation on the procedure, whose value varies due to the value of the expropriated property or the type of procedure.
In principle, there is currently a minimum of € 43.00 to a maximum of € 278.00, in addition to a € 27.00 stamp.
An execution judge is appointed and assigned, who directs the procedure, takes the necessary measures and is the one to whom all the questions relating to expropriation must be addressed.
Today, the assets that you want to expropriate can also be searched electronically, by first submitting an application that will instead be sent to the President of the competent Court.
Lending of creditors
Once the enforcement procedure is initiated in court, before the sale is arranged or, at least, before the sum obtained from the sale is distributed, other creditors may be included , as well as the person who promoted it, provided that they have an executive title, or have already executed a seizure on the attached assets, or have a lien or pre-emption right on the objects in question.
Some creditors who do not have any executive title can enter with a specific appeal: they are those who are owed a sum of money that results from accounting records (basically, the VAT register).
The intervention entitles the creditors to participate in the distribution of the sum derived from the sale of the attached assets, to participate in expropriation and to intervene in the different phases of the procedure.
Sale and assignment
Depending on the expropriated property, these can be sold or assigned. Neither of the two can be requested by the creditor before 10 days have elapsed since the attachment, at least that the assets subject to execution are not easily deteriorated.
Goods that have been pledged or registered movable property (for example, the car) for which a mortgage has been registered, may be sold or requested for assignment without the need to first notify the attachment deed.
The sale can take place with the so-called enchantment, a particular form of auction, and can also be divided into lots if the expropriated assets are different. However, if the sum of the credit and expenses is reached with the sale before all the lots are sold, the sale must cease, as the purpose of the execution has already been achieved.
The real estate foreclosure procedure
When the expropriation is carried out on an immovable property, the attachment deigned notified to the debtor must contain all the details that univocally identify the asset. The same act must then be transcribed in the real estate registers, so as to be brought to the attention of anyone who consulted them.
An interesting fact: if there are reasons why it is appropriate and useful to proceed in this way, together with the property can also be attached to the objects that furnish it. There will thus be a movable and a real estate attachment within the same procedure, carried out with two separate deeds, but which are then deposited together in the Court.
Once the operations described have been carried out, the judicial officer must deliver all the documentation (attachment deed and transcription note in the records) to the creditor’s lawyer, who must file everything in court within 15 days, formally initiating the procedure of execution and forced sale of the asset.
The custody of the seized assets, including accessories and appliances, is the responsibility of the debtor, who is thus appointed with the attachment. However, the debtor can ask the execution judge to appoint a different custodian, especially if he does not reside in the expropriated property.
In any case, the Judge may decide to authorize the debtor to continue to live in the building, or, on the contrary, dispose of the release, or revoke the authorization that he initially granted. Whoever is appointed a custodian, has precise responsibilities towards the maintenance of the property, must give an account of the administration of the same and can not rent it if it has not been specifically authorized by the execution judge.
Attention: apart from the deadline for filing in court, we must also remember that the foreclosure loses all effectiveness if, within 45 days from its execution, the sale or assignment of the asset has not been made. After this deadline, the execution judge has, by order, the cancellation of the registration of the attachment in the real estate registers.
This also determines the extinction of the enforcement procedure, if there are no other attached assets.
Sale of real estate
The sale of the attached asset requires the creditor who promoted the execution or one of the creditors intervening, with a deed to be deposited in court. Within 60 days of the request, it must also deposit an extract from the cadastre, as well as the certificates of registrations and transcripts relating to the property carried out in the 20 years preceding the execution.
This term can obtain, at the request of the creditor or of the Judge, only one extension, of identical duration. The extension is granted if there are valid reasons or if the judge believes that the creditor must integrate the documentation.
Once the term has passed unnecessarily, the judge declares the ineffectiveness of the attachment, ordering the cancellation of the transcription of the same and, if there are no other assets, the extinction of the procedure.
Once the document formalities have been completed, the judge authorizes the sale with a provision. The sale can take place:
- By offer: advertising is given to the sale and all its conditions. Any interested person, excluding the debtor, can present his / her offer, in a sealed envelope, respecting deadlines and times set by the Judge, under penalty of the inefficacy of the same. A deposit must be given, always according to the indications of the judge. Except for further measures by the Judge, the bid presented in this way is irrevocable.
- By magic: the asset is sold by auction, of which the judge sets all the criteria and terms. Also, in this case, anyone except the debtor can participate. It is necessary to pay a deposit, which is returned in case of non-award of the property. Instead, it is retained in part if the bidder fails to appear at auction without communicating a justified reason. The winner must pay the final price on time and in the manner established by the Judge. Failure to meet deadlines or the established sum will void the successful bidder and cause him to lose all the security, withheld as a fine.
At the price paid the Judge issues an act (decree) with which he transfers the ownership of the property to the winner, orders the cancellation of the relative transcripts from the registers and imposes the release of the asset to the custodian and debtor.
Real estate assignment
Any creditor who participates in the execution, within 10 days before the date of the auction, can lodge an assignment in the Court, with which he asks to obtain directly the delivery of the asset, in case the sale goes deserted for lack of offers. Naturally, the request must also contain the offer of the sum expected for the sale of the asset, and if the Judge accepts it, also in this case, a decree to transfer the asset to the assignee creditor.
If, on the other hand, no one submits an assignment application or if the judge does not accept them, he/she can provide for a new auction sale, even under conditions different from the first one.
Today all sales operations can be delegated by the judge to a professional (notary, accountant or lawyer registered in special lists.
The movable foreclosure procedure
When being seized are movable, the bailiff, which notifies the act of attachment, also proceeds to look for things to expropriate directly in the house of the debtor or in other places that belong to him or even against the debtor himself.
In case, it can be assisted by the public force or can obtain authorization from the Court, on the creditor’s appeal, to seize specific objects that, even if they are not in premises owned by the debtor, are assets that the debtor can directly dispose of. In any case, if the third owner exhibits to the judicial officer the objects owned by the debtor, these may be attached.
In carrying out the attachment the judicial officer must respect times (he cannot for example access on holidays) and timetables (normally from 7 to 21). However, it may be otherwise authorized by the Court and, if the foreclosure has commenced within the permitted time limits, it can continue until its natural exhaustion, even if it means crossing over the indicated time limits.
The judicial officer drew up a report on the so-called foreclosure.
The attached assets are not left in custody either to the debtor (or to the persons of his family) or to the creditor (or his spouse), unless they are given mutual authorization. In the case of money, securities or valuable assets, they are handed over by the court bailiff to the court clerk. In other cases, they are taken to a place of storage or delivered to another custodian.
The assets cannot be used and the custodian must report on his activity, which remains free of charge if he has not requested compensation or has not been recognized by the bailiff at the time of his appointment.
There is also the possibility of conversion of the attachment, of which the debtor must be informed by the judicial officer by an expressly minuted statement.
Sale and assignment of securities
Once the 10-day term from the attachment has expired, the attached creditor and all the creditors who have intervened, who have an enforceable title, can ask for the distribution of the money and the sale of the other assets. If there are credit or similar securities, they can also be requested directly in assignment. The appeal with which these measures are requested, however, must be a certificate of registration of the privileges that weigh on the attached furniture.
Based on this request, the execution judge sets a hearing, in which the parties participate. If there are no objections or if an agreement is reached, the sale or assignment of the assets is ordered by court order. The sale takes place in a manner similar to those already seen for the buildings, using the enchantment and under the supervision and supervision of the judge.
Once the sale is over, two hypotheses are given:
- The creditors, by mutual agreement, submit to the judge a request for the distribution of the sum obtained according to an agreed plan . The Judge hears the debtor and then provides as planned.
- If the aforementioned agreement is not reached or the judge has not approved it, or any creditor may request the distribution, on which it is provided in accordance with the provisions of the law and in compliance with the individual shares.
Even Equitalia, as known, can use the means of execution to recover the credits entrusted to it. However, the sale of goods expropriated by Equialia can only take place in compliance with the specific legal provisions existing for these particular procedures and for debts for which non-payment persists.
The execution on the buildings cannot be carried out if the property to be expropriated has the following characteristics:
- it is intended for residential use and the debtor has his residence there;
- it is the only property owned by the debtor;
- it is not luxury, ie it does not have the characteristics provided for by the Ministerial Decree for Public Works 2 August 1969, published in the Official Gazette no. 218 of 27 August 1969, or is a villa (A / 8), a castle or a palace of eminent artistic or historical value (A / 9).
In any case, even in the presence of the prescribed characteristics, the expropriation of the asset and the subsequent sale can take place only if:
- the amount of the debt recorded in the role is greater than 120,000 euros;
- at least six months have passed since the registration of a mortgage and the debtor has not paid.
The legislation that governs the executions undertaken by Equitalia, which in part have a different regulation from the general one provided by the code of civil procedure , provides that the taxpayer, in agreement with Equitalia itself, can personally sell the attached or mortgaged property within 5 days preceding the first spell or, in the case where the sale is not made, by the day before the second auction.
In this case, the sum derived from the sale is paid directly to Equitalia, which uses the amount for the balance of the debt and returns to the taxpayer any excess amount within 10 working days after the collection.
Notice of sale of Equitalia
In the case of real estate expropriation, it is necessary that this is deprived by an act of the collection agent, notified and transcribed in the forms of law, with which the attachment is carried out. The notice must contain:
- the generality of the subject in relation to which one proceeds;
- the description of the properties with the cadastral indications and the clarification of the boundaries;
- an indication of the urban destination of the land;
- the day, time and place of the first, second and third enchantments, with a minimum interval of twenty days;
- the total amount of the credit for which, with the details of the tax, default interest and execution costs already accrued;
- the base price of the spell;
- the minimum amount of the increase to be made to the offers;
- the warning that the sales expenses and tax charges relating to the transfer are borne by the successful tenderer;
- the amount of the deposit and the period within which it must be provided by the bidders;
- the term of payment of the price;
- the injunction to refrain from any act aimed at subtracting to the credit guarantee the goods subject to expropriation and the fruits of them.
The notice of sale is notified to the debtor within 5 days from the registration. The lack of such notice does not allow the valid sale to proceed
Expropriation of assets in co-ownership
Even goods that belong in an undivided manner to more than one person may be subject to foreclosure, even when creditors are entitled only to one of these owners. In this case, the other owners of the asset are brought to the attention of the attachment, by means of notification of deed, with the warning not to allow the debtor to separate his share of the asset without the order of the judge.
If it is possible and if the aggrieved creditor or co-owners request it, the Judge provides for the separation of the portion that actually belongs to the debtor. If the separation in nature is not requested or is not possible, the division of the asset must proceed, with the concrete identification of the shares of each co-owner and the valorization of the same. In this case, the enforcement procedure remains suspended until a split agreement is reached between the co-owners or until a ruling has been issued.
Opposition to execution
The opposition may be brought against the execution as described above. The opposition must be lodged with an appeal, to be deposited in the Court and directed to the Execution Judge. The opposition may be advanced if:
- it was impossible to present it before the execution;
- if it concerns the notification of the enforceable title and the precept;
- if it concerns the individual implementing acts.
For all the peremptory period to be respected is that of 20 days from the first act of execution, if they concern the executive title or the precept, or from the day on which the individual executive acts (which are contested) were completed. The judge then sets a hearing and decides the matter by a non-challengeable sentence.
The opposition of the third party
Not only the expropriated debtor but also the third party, who claims to have the property or another real right over the attached property, can propose opposition by appeal to the execution judge. The appeal must be presented before the goods are sold or assigned. Also, in this case, the Judge fixes a hearing for the appearance of the parties and to check if it is possible to reach an agreement between them. Otherwise, it takes the necessary measures to start a real ordinary judgment for the resolution of the matter.
If the third party comes forward with late opposition and proposes his appeal after the sale or if the Judge, despite the opposition, considers not to stop the sale of the assets, the rights of the third party must be asserted on the sum obtained. Attention: the third party is not allowed to prove with witnesses the right that he or she boasts of the assets seized in the debtor’s house or company, at least that the existence of this right does not appear plausible due to the activity carried out by the third party or the debtor.
The objection in question cannot be advanced by the cohabiting wife of the debtor, for the movable property seized in his house, at least that he can not prove that the goods belonged to them before the marriage, or that they were received by donation or heredity. This proof, however, must provide it with an instrument having a certain date: that is, an act done by certified private deed or a public deed or a private deed with a postmark attached to a certain date.