Archives February 2019

Debt collection calls the debtor’s neighbor on the phone – No presumed circular can justify or excuse such conduct

 

Unfortunately for about a year I have been dealing with various debt collection companies, this morning at about 8 o’clock, a call center operator of one of these agencies called my neighbor, alleging that she had urgent communications for me but she could not to contact me, so he gave his surname and a fixed telephone number to contact her.

When I was able, I recalled the number, finding out that it was a debt collection company, I asked to speak with the lady who had requested the contact but was not available, I then asked to account to those who answered their behavior, these were the motivations:

1) have tried to contact me, from about 2-3 days, without success to my cell phone, through phone calls and text messages
2) the number of my neighbor is public because it can be traced from the blank pages
3) not having specified the reason for the phone call have in fact respected my privacy
4) acted on the basis of a “circular” in their possession that allows this type of research of the debtor.

Personally, as a matter of principle, if I receive phone calls from a number, especially during working hours, I can not associate with someone, I do not answer and I ignore sms or messages what’s app like “urgently contact the number xxyyz for communications concerning” and I do likewise if these contain generic instructions for payments showing amounts for an outstanding installment plus miscellaneous expenses and how to carry them out.

My reaction was to write a registered letter to the principal, where I asked to be aware of the behavior of the debt collection company and I asked for the future, that the first contact by the recovery company delegated by registered letter A / R in which is specified in detail what is required, that I will not eligible for requests made with text messages, what’s app, etc. and that if you repeat similar situations, I will deny my consent to use the telephone channel to contact me.

I kindly request your opinion from experts, on the behavior of debt collection and on the legitimacy of what I have requested from the financial institution.

 

In the specific case, the counterparty can not contest the privacy of the debtor if the reason for the call was not specified and if the calling party did not qualify to the neighbor as a credit recovery officer (even if the phone number left could make trace anyone back to the object of the call). Notwithstanding, however, the debtor’s right to require that any communication of the creditor be forwarded by mail to the address communicated at the time of signing the contract, excluding any other channel, and / or that neighbors, relatives and the employer are contacted. work.

It is not possible to avoid the debtor being traced through requests to the registry offices or, more economically, using the blank pages. But no presumed, not better specified, circular (or quadrangular) in the possession of the creditor, can authorize unwanted telephone contacts with the debtor and even less, with relatives, friends acquaintances of the debtor or other third parties.

If between the original financial creditor and the company, in which the employee who has contacted his neighbor is working, a contract is underway, he did well to distrust the principal; otherwise, if the loan was sold, the letter of formal notice from further pursuit of similar conduct should be addressed to the assignee.

His reaction was in accordance with the law and is fully legitimate.

 

 


Foreclosure of a current account jointly with the debtor by the Revenue Agency

 

A current account with the extent to which it can be attached by the Revenue Agency, considering that the sums deposited are all paid by the debtor?

 

The current legislation allows the Revenue-Collection Agency to proceed autonomously, ordering the bank without having to go to court, to expropriate the balance of the current account until the fulfillment of the claimed claim.

This possibility, however, lapses in the case of a joint account. In fact, the joint account is part of the notion of an undivided common good, whose expropriation is governed by the general rules of the code of civil procedure.

The law prohibits, in this case, the attachment by extrajudicial means, that is, with the order given directly to the bank or to the Post Office to withdraw the availability up to the amount of the credit activated, without going to the court. Only after the division of the common good, that is of the deposited bank account money, is it possible to assign to the distraining creditor what is due to him.

Therefore, the Revenue-Collection Agency must proceed according to the rules of the Civil Procedure Code, valid in the attachment to third parties: that is, with a summons to a court hearing.

At the hearing, the bank will have to participate. Then, it will follow the order of the magistrate that arranges the assignment of the sums attached. During the time elapsing from the notification of the attachment to the court hearing, the debtor’s current account sums are substantially “blocked” pending the hearing itself.

We can therefore conclude that in the case of a joint account, the Revenue-Collection Agency, can not seize the entire credit balance of the current account up to the capacity of the loan (ex Article 72 bis of Presidential Decree 602/1973), because this could be resolved expropriate sums belonging to the other non-debtor co-owner. The proceeding creditor must therefore be content with 50% of the available liquidity, unless he demonstrates to the judge, with a detailed examination of the chronological extract of the transactions carried out over time on the joint account, that the sums deposited are exclusively attributable to the debtor subject to executive action.

Naturally, even the non-debtor joint account holder can object to the conventional allocation of 50% of the available liquidity, at the hearing or by appealing to the execution judge, to show that the origin of the balance is to be shared between the two joint holders. non-equal measure.

Taking also into account that it is not enough to pay a sum in the current account in order to object to the exclusive attribution of the credit to the account holder who makes the payment: according to Article 1298 of the Civil Code, the presumption of equality of the shares of each of the joint holders a current account can be won not with the mere demonstration of having had the availability of the money entered into the account, but with the clear demonstration that the title of acquisition of that money made the recipient of the same, exclusively, the only subject that then he poured it into the joint account.

 

 


What protections for the debtor in the case of foreclosure of the current account where an already foreclosed pension flows?

 

If the debtor is already attached to the fifth and his current account is debited where his only pension is conveyed, is there any particular rule?

 

The law (with article 545 of the code of civil procedure) states that in the case of credit on bank or postal current account held by the debtor, the pension can be attached only for the amount exceeding the triple social allowance.

Therefore, seizing the current account on which the debtor’s pension is credited, the bank should, by law, leave on the current account the amount of the last pension paid (at least up to the event of 1,500 euros, or triple the allowance) that we hypothesize, for convenience, equal to 500 euros).

No particularity foreseen if a 20% already foreclosed pension is credited to the current account, unless you have time, desire and, above all, financial resources to invest in a judicial battle (to be brought up to the Court of Cassation) to establish a principle of law sacrosanct, that according to which, if the debtor’s current account is destined to the accreditation of a pension already foreclosed, it is unjust to punish the debtor subject to executive action with a substantial double foreclosure.

According to the established case law of legitimacy, in fact, … when the attaching creditor submits an attachment to an existing bank where the debtor has a current account and which also receives the salary payments (or pension) the debtor’s credit that is attached is the credit to the repayment of the sums deposited which is entitled to the current account. Therefore, the reasons why those sums have been paid into that account are totally irrelevant: money is a good fungus par excellence.

Moreover, for the sake of truth, it must also be said that the effects of the attachment of a current account, where the debtor’s pension meets executive action, have already been largely mitigated by the recent measures adopted by the legislator, finalized, as reported in the first part of this answer, to limit the attachment to the sums deposited in excess of the triple social allowance.

 


Person indebted to property – Selling to children?

 

A person has huge debts with Equitalia for which he is about to join the scrapping ter: in the blackberries, and being sure that the same balances all debts, he would start to take off the registered properties (selling to the children) that are three houses and a store but, at the same time, there are also some notices of assessment to which he intends to make opposition to lengthen the time and not to register mortgage for at least a few years, at least the time to close the scrapping also by first welding.

The questions are these:

– what happens if one sells to the children without payment or with hidden fee?
– if you sell to a third party, is the deed of sale not subject to revocation?
– if you sell to a third party, the proceeds from the sale end up in the debtor’s current account and can be attached. Is it possible to transfer the sums obtained from the sale of the buildings to their children without risking?
– and, what if the proceeds from the sale to the third party were transferred to an offshore “black list” account to avoid the foreclosure?

 

If the debtor sells the property to his children, he exposes himself to the revocatory action of the creditor: to avert this risk the debtor should sell to a third party who is not related or similar, at a market price, with traceable money transfer and the third party should elect the apartment purchased at their main residence (the main house is the one in which the purchaser and / or his family members usually reside) or should carry out their commercial activity (as regards the store). Only in this way will the revocatory action be assessed as inadmissible by the judge eventually seized by the creditor, the legal presumption of awareness, by the third buyer, about the prejudice caused to the interests of the creditor has been overcome: otherwise, it happens that the third buyer is expropriated ( the acceptance of the revocatory action does not entail the return of the asset to the assigning debtor, but entitles the creditor to take executive action on the asset alienated by the debtor as if the sale had never taken place – it is also said that the deed of transfer of the property is ineffective towards the creditor) with all the aftermath of revenge and judicial claim for damages against the alienating debtor that the situation created would involve: an infernal circle in which it is better not to enter.

As you wisely note, however, at this point a further problem would arise: the proceeds from the sale would be credited to the debtor’s current account and could be fully distrained with the assigning of the available balance to the creditor: someone, then, could naively think about transferring the liquidity acquired on the current accounts of their children. And here he casca (would not fall) the ass for sure.

In fact, the transfer of non-modest value (but also a normal check or circular allowance) is assimilated by the jurisprudence (among others, Court of Cassation, to joint sections, judgment 18725/2017) by direct donation of not modest value . As a direct donation of no small value, the passage of money should be ratified by a notarial public deed (in the presence of two witnesses), otherwise it is susceptible of cancellation due to a formal defect at the request of the settlor’s creditor.

In short, the cancellation of the transfer could take place without even the need for a revocatory action initiated by the creditor against the person who made the transfer (or issued the check), with the consequent obligation of the beneficiary child to repay the amount received from the parent . Moreover, if a donation of money of not modest value was made with all the criteria of legality (notarial deed), the creditor could easily request (and obtain) within five years from the signing date of the deed, the revocation of the provision. In short, we would have fallen into the classic “cul de sac”.

The transfer of money should then take place through wire transfers or checks of modest amounts, or even by cash, with periodic withdrawals from the account: but, apart from the fact that the amount of the sum that can be considered modica has never been defined in jurisprudence , also the fractioned transactions would bring us to classify the operation as a direct donation of a non-modest amount, nothing in the absence of a notarial deed. Also wanting to periodically transfer small amounts in cash from the debtor’s current account to that of the family member, taking care that there is no temporal correlation or amount, between withdrawals and deposits, the time necessary to complete the operation, also counting on biblical times justice, however, would give way to the creditor to frustrate this naive attempt to evade their obligations with the classic foreclosure of the current account.

At this point, the only solution would seem, as you suggest, to transfer the money obtained from the sale of the property into a current account opened at a credit institution based in an offshore country, not linked by mutual information agreements and mutual cooperation with Italy (black list). Today it is enough to have a Skype connection and the current account relationship is perfected remotely, with subsequent signing of the contract and sending, via carrier, of the password generator device necessary to authorize transfers and transactions. In this way, someone might think, since there is no possibility of foreclosure of the current account on the rogatory of the Inland Revenue Office, the debtor would have all the time to transfer, in the long term, the proceeds of real estate disposal transactions on the current accounts of his own family, even at the cost of using the ATM in Italy every other day to withdraw cash to be paid into the current accounts of the children, perhaps taking care that there is no correlation in time or amount between withdrawals and deposits.

But even this road is not without insidious risks: first of all, the current account holder could be accused of money laundering with criminal implications: in practice, in no time, the offshore current account holder could find coercive hospitality in the patrie galere. It does not happen, but if it happens .. recites a recent and well-known advertising spot. There is more: the bank could fail, an unfaithful employee could falsify signatures and clear the account by attributing the responsibility to the usual Russian hacker or to the negligence of the account holder who has not diligently kept his own password generator disposable (On Time Password – OTP). And I would like to see you, then, challenge from Italy the evaporation of the availability in the offshore current account: what is certain, you will not be able to contact the Guardia di Finanza.

This long talk was finalized, I hope, to convince you that, in the given situation, the only solution, to be able to continue to sleep soundly, is to sell the real estate necessary to put the debt back to the Revenue Agency Riscossioni. Otherwise you risk jail, an early heart attack or, if all goes well, a liver disease. And, absolutely, it’s not worth it!

 


Donation and balance sheet – How can I take action against the debtors debtor?

 

The parents (now deceased) of a debtor of mine constituted years ago a patrimonial fund and at the same time donated him (in a spirit of liberality) to his son and daughter-in-law. Can I proceed against the debtor and for which routes (are in possession of an arbitration award, obtained prior to the establishment of the fund)?

 

The donation of the patrimonial fund to the child causes the limitation of destination on the donated property to cease: the latter does not maintain the protection conferred on him by the patrimonial fund constituted by the parents and, consequently, can be subjected to the lender’s executive action.

In other words, the assets assigned to the assets are donated, but the donations can not be transferred to the destination limits that the assets are involved in.

The debtor should re-establish the assets and confer the received goods as gifts: but, in such a case, within five years from the date of establishment of the fund, an ordinary revocatory action pursuant to Article 2901 of the Italian Civil Code would be possible.

Indeed, there is more: in accordance with the provisions of Law 83/2015 (which introduced Article 2929-bis of the Italian Civil Code), the creditor who sees their reasons jeopardized by an act of transfer of their assets by the debtor, such as the establishment of a capital fund, he can seize the assets transferred to the fund without first having to obtain a revocation sentence from the Court, provided that he has registered the attachment within one year from the date of 

 

 

I would like to know on the basis of which precise rule, the donor of the estate fund should have set up a new fund, on the death of the donor, and what it means “to donate the assets transferred to the estate but can not be transmitted, with the donation, constraints of destination that the patrimonial fund involves.

The donation involves a transfer of ownership and the donated asset is no longer part of the assets.

Article 171 of the Italian Civil Code establishes that the balance sheet ends exercising the protection of assets conferred upon it following the annulment or dissolution or termination of the civil effects of marriage: the legal and destination on the assets transferred to the assets.

In practice, already at the death of one of the spouses 

 


Arrange your debts yourself

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Tip : If you are unable to pay an invoice, please contact the relevant authority directly and tell them that you are working on a solution. This prevents bigger problems.

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What else can you do?

Solve faster with your extras

Try to pay the repayments as much as possible in time to avoid extra costs. An annual overview can help. Write down your income and expenses per month and see in which months you have money left.

Try to pay as much as possible or even everything at once. This is possible if you have a few extras a month. For example, you can use your holiday allowance or the end-of-year bonus for the repayment of your debt.

Contact with your creditors

Always respond to a letter. Also from a collection agency or bailiff. This can prevent higher costs. Agree on a feasible payment arrangement that you can actually come to. Otherwise you will lose your credibility with the creditors.