What if the right to receive something is certain, and it has an enforceable title, but the debtor does not comply? Are accomplished research and begin enforcement action.
Law Enforcement
If we expect something from someone and the other is not available to answer our requests, but also does not answer, or rather the challenges, we can do that to court.
He fix the dispute by establishing in a incontrovertible who is wrong and who is right.
It states that the incontrovertibility or you will once exhausted all levels of appeal, or in the absence of appeals (after expiry of the legal deadline).
In technical terms it is said that at the end of the trial the issue will be been the subject of assessment .
There are cases in which the law does not require the judicial assessment: for example, the bill is defined enforceable by law (v. art. 63 , R.D. 1568/1933 , that Law promissory ); this means that holders of a bill of exchange (if this is originally stamped and the time required by law, former art. 104 , L. promissory ) can skip the step of ‘ assessment.
A once in possession of the court order, pretenderemo (first with good , that is, with simple notification of the measure with its enforcement) , the fulfillment of the final.
Sometimes the measures are immediately enforceable, and sometimes you have to wait some time.
For example, an injunction in relation to charges Monthly, is immediately enforceable, despite opposition , by express provision of law ( art. 63, disp.att. cc ).
Instead, an injunction based, For example, on any written test is not always so.
Unless the court finds necessary, you can directly notify the title and the precept: To return to the example of the bill, it will notify precept (which must necessarily contain the transcript of the bill, former art. 63 , R.D. indicated and art. 480 CPC ), and then move on to the execution.
If the performance does not even at this point, you will begin that executive action.
Making specific performance and repossession
The ‘ executive action , which, as the name implies, is to get the ‘execution due, can be of various types, depending on the result to be obtained, and also depending on the assets of the debtor attack .
As for result , the action in fact can be used to obtain the ‘ exact execution of the object of performance, that is, may be in a particular form, or, instead, to equivalent, that is aimed at get the ‘ equivalent in the cash benefit payable to the debtor by subtracting some of its assets.
Among the first we have the’ execution to delivery (movable property ) or release (real estate) (v. Articles. 605 et seq. CPC or the ‘ enforcement of obligations to do and do not , such as that relating to the demolition or construction of a work (v. Articles. 612 et seq. CPC ).
Among the latter, we have the expropriation of property, the expropriation securities from the debtor, and the expropriation of securities in the third.
The choice between the various forms is given by the type of right in question, from the factual circumstances, and in part the preference of the owner of the right. For example, if a credit is not high will avoid enforcement action immobilire, time consuming and expensive.
As mentioned, the compulsory expropriation can be real estate, securities and securities from the debtor by third parties.
As expected, the first to have an object (or of) good / the estate / the payable / to the debtor, the second has to object the goods mobile of the debtor and the ‘ last case of goods with a third party which is in turn the borrower is indebted to us.
Identification of the debtor’s assets
For the creditor , the trouble primary at this point is to find the debtor’s assets, hoping that they have.
Yes, because discover at this point that he does not have anything in the name would not be nice. It means having wasted years, money, hopes and stress.
Here is (also) because it is important to properly evaluate, before starting a lawsuit, checking if the debtor has assets payable (assets that over time may still be lacking) and, if it happens, carefully choose a compromise between (essentially settled out of court, more confident in the outcome, although less satisfying), and sentence (Remote and imposed by third, and more uncertain, both in content and execution).
In any case, some databases are – we can always say – Free access : first of all the estate records; but we also registers auto.
For the rest of you will often have to rely on word of mouth, to gossip, to private investigators etc …
As you know, many other databases, including the bank, the pension etc … not open to the public and for information you have to have a court order, then pay without knowing what will happen, and wait, before the judge’s order, then the response of the institution.
Search by Information Technology
It has recently introduced a new provision in the Code of Civil Procedure governing The research by Information Technology of the assets to be attached (v. art. 492-bis CPC ).
This innovation, given the context, just described, in which will be fitted, is so far in the abstract very useful .
The law provides for the possibility for the creditor to that bailiff by accessing electronic connection directly to the data contained in the banks data of public administrations or to which the same can access and, in particular, nell’anagrafe tax, including the archive of financial reports in the public register in the automotive and the social security funds, to acquire all relevant information for the identification of things and claims to be subjected to execution, including those related to transactions by the debtor with lenders and employers or clients.
‘ Article 155 quinques also provides that if the technological facilities necessary to allow direct access to the bailiff are not working, the lender may be entitled to request the information directly to the authorities.
Introduced in 2014 (with the DL n. 132/2014 ), until now it was still not applied by the courts, in the absence of the executive decree; Saturday, June 27, 2015 was posted on DL 83/2015 (amending Article. 155-quinques disp.att. ‘s art. 492-bis CPC ), which expressly allows when the technological facilities required to enable direct access by the bailiff to the databases are not functioning … the creditor may be authorized to make the request directly to databases even up to ‘ issue of the ministerial decree stating full functionality of the technological facilities necessary to allow access to the same databases.
This new port some to believe that the rule has become immediately applicable , while other enable only direct access to the creditor in case of failure Operation system.
‘ art. 483 CPC allows finally the activation of more enforcement proceedings (against the same debtor) at the same time, as long as the enforcement court, at the request of the borrower does not have a limitation.
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