Q&A: How to collect a claim in Italy?

In Italy the process to recover a debt can be divided into a series of phases, so that if one phase does not produce the desired effect (credit recovery), one can move on to the next phase.

What is the debt collection process in Italy like?

First of all, we have to distinguish between the actions that can be instigated out of court from those that can be carried out in court.

EXTRAJUDICIAL PHASE

During this stage, the creditor’s lawyer has to send the debtor an injunction of payment.

This instrument consists in a letter of formal notice of late payment to the debtor, which is sent by certified e-mail or by registered mail to the debtor, in order to have proof of delivery.

Through this deed, the debtor is ordered to fulfil his duties within a certain period (normally one-two weeks).

If there isn’t a response from the debtor, and payment of the debt isn’t obtained, judicial instruments must be used.

JUDICIAL PHASE (articles 633 et seq. Italian Civil Procedure Code)

This phase is divided into a series of steps.

1: First of all, the creditor’s lawyer can lodge an injunction, requesting the judicial authority to issue an injunction.

The injunction is a measure issued by the judge, which orders the debtor to pay the amount due to the creditor, as well as expenses and interests.

The procedure can be described as a summary proceeding.

In particular, the injunction is issued:

in the absence of an adversarial procedure between the parties;
and on the basis of documentary evidence provided by the creditor (for example invoices, bills, contracts, bank check).

Once issued, the injunction has to be notified to the debtor, who will have a term of forty days to decide whether to file an opposition.

Therefore, two different alternatives can be configured:

The debtor presents an objection → an ordinary cognition process begins:
- in compliance with the adversarial principle;
- ends with a sentence. If the ruling rejects the opposition, this provision will be enforceable
The debtor doesn’t file an opposition → expired the 40-day deadline, the competent judge may declare the decree enforceable, which will constitute an enforceable title suitable for establishing forced execution.

2: Once in possession of an enforceable title, if the debtor doesn’t comply spontaneously, it is possible to proceed with the forced execution of the order contained in the title.

To this end, art. 479 of the Code of Civil Procedure establishes that “forced execution must be preceded by the notification of the title in enforceable form and of the writ of execution”.

Indeed, it’s important to keep in mind that the writ of execution can only be issued if an enforceable title such as an injunction or a sentence has been previously notified or if the creditor is in possession of a bill of exchange, a check or a loan contract signed before the notary.

The writ of execution is an instrument that can only be used by those in possession of an enforceable title (not necessarily issued by a judge, as in Italy other documents, for example invoices, constitute an enforceable title as well).

This deed consists in the order to the debtor to fulfil the obligation resulting from the enforceable title.

Following the notification of the enforceable title and the writ of execution, the debtor has a term of not less than ten days to proceed with the payment of the debt, with the warning that, in the event of default, forced execution will be applied.

Through forced expropriation, the debtor’s assets are forcibly expropriated and subsequently sold so to allow the creditor to satisfy his credit with the proceeds.

3: Forced execution begins with foreclosure.

Indeed, after 10 days from the notification of the injunction and the enforceable title, if the debt hasn’t been paid yet, the creditor can request the bailiff for the foreclosure of the debtor’s assets (for example movable property, registered furniture, real estate, salaries, current accounts, etc.) until credit balance is fully satisfied.

The foreclosure can be:

movable;
real estate;
or with third parties, in reference to the debtor’s money credits or other movable property belonging to the debtor, but not in his availability.

The foreclosure binds the debtor’s assets to prevent the debtor from alienating or otherwise disposing of them. Therefore, as a result of the foreclosure, certain assets of the debtor are “frozen” to be subsequently subjected to judicial sale until the debt claimed is paid.

4: The foreclosure is an act put in place by the bailiff, but it is necessary for the creditor to propose an application for sale.

This way, the debtor’s assets can be sold with or without an auction procedure under the direction of the execution judge. The creditor will thus be able to satisfy his claim on the proceeds of judicial sales based on his own credit title.

As an alternative to points 2), 3) and 4), the creditor can intervene in executive procedures already in place.

In fact, if enforcement procedures instituted by other creditors are pending against the debtor, the creditor can intervene in the same procedures in order to participate in the distribution of the proceeds.

Are there any options to “freeze” or secure debtor’s redress objects?

In the Italian legal system, in addition to foreclosure, there is a precautionary instrument, which provides immediate and provisional protection of the right of credit: the attachment (article 671 of the Italian Civil Procedure Code).

It is an instrument that consists in two phases:

the removal of movable or immovable property from the free availability of the debtor;
and subsequent forced execution, in the event that the existence of the right recognized as a precautionary measure is ascertained in the following case.

Furthermore, the seizure has two purposes:

on the one hand, to render the acts of disposal of the property carried out after the seizure by the debtor ineffective against the creditor,
on the other hand, to warrant, through custody, the material permanence of the asset in the debtor’s assets, so that the creditor who is the winner in the judgment on the merits can attack it.

The creditor of a sum of money or other fungible assets who has the well-founded fear that, in the time necessary to ascertain his credit right, the debtor will disperse his assets, can request the conservation seizure of some debtor’s assets, thus anticipating the effects of the foreclosure.

The effect of this precautionary measure is to “freeze” the debtor’s bank account, and the debtor will therefore no longer be able to dispose of the amounts contained therein.

The conservation seizure is defined as “early foreclosure” as it is carried out in the same forms as the foreclosure and, in the event of an executive conviction, is automatically converted into foreclosure. Therefore, the limits of seizure are the same as those of distraint.

The preservation order can be requested in two specific cases:

before the creditor starts a judicial case against the debtor or in any case until a sentence has been issued;
after the creditor has obtained a judicial judgment or a settlement and must therefore initiate enforcement proceedings.

Do you need to be assisted by an attorney at law?

In a complex and delicate matter such as judicial and extrajudicial credit recovery, it is essential to make use of the support of a professional.

What are the costs of the procedure and are they eligible for reimbursement?

As far as legal assistance and advice are concerned, it is not possible to formulate an exact cost estimate, because – in most cases – the services performed and the costs incurred for solving the problem can only be concretely determined afterwards.

There are, however, substantially standardized and uniform activities which, except in exceptional cases, make it possible to identify the possible costs of services.

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