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!

 

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