WHAT 'AND
' the act which began the forcible expropriation of the following existence, and the notification of an executive and a precept
covered by the Code of Civil Procedure to ' art.491 and following (rules reformed by Law 80/2005 and 51/2006) and 'practice in order that a judicial officer is on the defendant to refrain from any act intended to steal the credit guarantee of the assets which expropriation and the fruits of it.
The order must also contain:
- the call to the debtor to make a declaration of domicile or residence-in-one municipalities in the district where the headquarters of the court competent for execution. Failing all notifications will be made at the Registry of that court;
- a warning that the debtor can 'request a change to property or claims seized a sum of money equal to the amount owed to creditors, including interest and costs . This' special instance and the Court by depositing a sum not less than one fifth of the credit.
FORM
of the attachment by the bailiff shall read a report which shows, in addition to the injunction referred to above, the description of all that is foreclosed, their state (through photographic representation or audio) and the approximate determination of realizable value established with the assistance, if considered or request by a creditor, an expert estimator chosen by the bailiff. If it concerns movables
The bailiff fitted Enforcement Foreclosure looking things in the house of the debtor and other places belonging to him, and also on the person. The bailiff can 'have the assistance of the police.
can not 'relate to things not be attached and should preferably be carried out on the things that the bailiff believes that the most' easy and prompt liquidation to a maximum realizable value (calculated by increasing the half 'the amount of credit precepts) . In any case, should be preferred, in order: the cash, valuables, debt securities and any property that appears to secure implementation.
can not 'run on public holidays and outside the hours designated by law for service of documents (from 7 to 21).
money, valuable securities and are seized by the bailiff delivered to the Registrar of the appropriate court, while other goods are transported to a place of public deposit, or assigned to a specific guardian (who can not 'be the creditor or the liable if the other party gives its consent).
Important Note: The attachment can
'also cover movables (furniture, various objects) present in the property not owned' by the debtor. It 'just that they will in-residence has to assume the force of law-that the goods stored in the building are of his property ', unless the contrary (or its actual owner).
Seizure ESTATE
is performed by notifying the debtor in the land register and subsequent transcription of a document containing the exact description of the property and order the debtor to refrain from acts devices. Together with the property can be seized even the furniture in it, if it becomes apparent that expropriation should take place together. A custody is normally appointed the debtor, but at the request of a creditor, the court may 'also appoint a different person. This' is, however, if the debtor does not occupy the property.
garnishee
covers claims of the debtor to third parties (such as rents, wages-say-in limits on the amounts and current account) or property of the debtor that are held by third parties. You run through a notification addressed to the debtor and the third, and contain more than the injunction not to take any action device about the goods and credits subject to seizure, an indication of the credit for which you proceed, and the enforcement of the precept, also an indication of the general property or sums due and not notice the other party to dispose of it without court order.
The Act also contains an invitation to appear before the court to declare "what things such as money or" the third and 'debtor, or is in possession and when they must make the payment or delivery.
interesting to note that this provision does not apply to foreclosures "tax collection" (see 'below), for which e' must be anticipated that the third party obligor makes payments directly to the dealer.
EFFECTS
The attachment of the attachment, in various species, has the effect of making them unenforceable in the creditor and other creditors involved in the execution, the disposals made on seized assets (such as the sale and sales of receivables).
For real estate that is the rule of the front 'of the transcription for movable property to the principle of the protection of third parties who have acquired ownership in good faith. See in this regard, Articles 2912 et seq. the Civil Code.
WHAT IS IMPIGNORABILITA '
concerns the attachment movable against the debtor, and is about the things that their overriding moral value (eg, objects of worship, wedding), or strict necessity' in the domestic life (eg, refrigerator , washing machine), led the legislature to prioritize the needs of the latter than to the principle that all property should be used as collateral to creditors and thus be expropriated.
are also exempted from the seizure, maintenance claims (food paid by the separated spouse, except for reasons of food and in any case permission of the presiding judge or a judge appointed by the party and determined by the same), claims relating to grants of grace, support, maternity 'and disease. They are partially
not be attached, however,
all assets necessary for the exercise of profession or trade exercised by the debtor. They may be seized within the limits of one-fifth in cases where the estimated value of other assets is not sufficient for the satisfaction of the claim. The provision does not apply if the measure concerns a society '.
Special provisions also relate to the things that the owner of land held for the service and the cultivation of that as well as' the fruits not yet collected or separated from the ground.
More details can be found on the art.514 et seq. as well as' Article .545 of the Code of Civil Procedure.
PIGNORABILITA 'SALARY
The Budget 2005 (Law 311/04) has definitively treated the provisions relating to pignorabilita' salaries of private and public ones. For the latter note that already 'time' was abolished the rule of absolute impignorabilita 'following several rulings by the Constitutional Court (and judgments n.89/1987 n.878/1988).
basically applies to all salaries (as well as 'bonuses, pensions, allowances', grants, etc.) the general rule that they not be attached and seizure unless these exceptions:
1) if the debt owed by law covers food, and 'expected pignorabilita' salaries up to a third of the net of deductions;
2) if the debt 'to the state or other entities or businesses from which the debtor is, and the relationship of employment, and 'expected pignorabilita' salaries up to a fifth of the net of deductions;
3) if the debt charges due regard to the State, provinces or municipalities from ' employed or employed, and 'expected pignorabilita' up to a fifth of the salaries of the same net of withholding tax. If
compete simultaneously cases 2 and 3 the attachment can not 'strike a portion of the fifth highest total already' mentioned, while Case 1 also helps if the attachment can not 'strike a greater share of the goal' salaries net of withholding tax.
E 'to be specified, as required by the Code of Civil Procedure, that the share subject to seizure and' decided by the President of the Court or a judge delegated by him.
Source: article 1 and 2 dpr180/50 with amendments to the law 311/04 article 1 paragraph 137 and Art.545 cpc et seq.
IF seized assets is insufficient, or
occur too long time for the clearance of the same, the bailiff can 'officially ask the debtor about the existence of other assets available for seizure. Borrowers who-when-state respondents false or do not cooperate, or does not respond within 15 days, are punishable as provided by .388 of the Criminal Code (up to one year imprisonment and a fine of up to 309 euro). Additionally
the bailiff can ', always with a view of the above, carry out a survey to seize property with direct access to their tax or other public databases. If the debtor and 'a trader, also, the officer will be able to' see the accounts by the advice of a professional.
Everything 'at the request of the creditor, with special application that can' ask the integration of the seizure even if the court deems inappropriate estimates carried out by the bailiff. To this end, the court has right 'to appoint an expert estimator.
TO AVOID foreclosure
the debtor can 'pay in the hands of the bailiff of the amount due to increased costs because' it is delivered to the creditor. To prevent the seizure of things, he can 'pay the amount due including costs bailiff' cause remains lodged as an object of the attachment instead of things themselves. In this case, the amount should be increased two-tenths.
GOODS MAY BE FREED
from attachment with a specific order of the court when the debtor has requested a change to property or claims seized a sum of money equal to the amount due including interest, costs and implementation costs. The debtor must, in this regard, deposit a specific instance-that-conversion at the Court, together with a sum not less than one fifth of the amount due. The judge decides the amount of the sum can be replaced and 'establish, where things are made up of foreclosed real estate and using it justified, that the latter with monthly installments within a maximum period of eighteen months. In this case, the amount will be 'increased, of course, the interest rate (conventional or legal).
If the debtor, in all cases, omit or delay payment of more than 15 days from the expiry of the sums paid will part of the property seized and the court at the request of the creditor, have without delay the sale of the same.
Goods are free from seizure by the order in which the court accepts the substitution. Those properties are released by paying the entire amount.
the seizure loses effectiveness when they are ninety days without a requested assignment or sale. In this case, where the measure is aimed to immovable property, the court shall issue an order which provides that the transcripts are removed previously made on the property registers.
foreclosure "tax collection"
If you do not pay a tax notice within 60 days of notification agent the collection can 'implement the enforcement procedures it deems more' desirable in order to collect the amount due. They range from the impounded car mortgaged the house, up to expropriation (seizures and forced sales) of movable and immovable property of the debtor and its multiple liability.
The rules are the generic ones provided by the Code of Civil Procedure already 'views on this sheet, to which are added to those more' specific provisions contained in Articles 49 to 76 of dpr602/73.
are then seized movable property by the debtor, property of the debtor from third parties, the claims of the debtor from third parties (including, in addition to salaries within the limits already 'mentioned in this Schedule rents and rents due from third parties, the amounts available in the current account, etc..), real estate and real property rights (usufruct, bare ownership '), and the rules still apply all'impignorabilita'.
changed a bit ', if anything, the Procedures.
The seizure in this case
- can not 'take place before 60 days have elapsed from the notification of the tax notice;
- can' be implemented on real estate-only-for debts totaling over 8,000 €.
- if the amounts entered in the register are less than 5% of the value of the collection agent must first registration of a mortgage and can 'proceed with the seizure only after six months if the course debt remains unpaid.
- in case the attachment is put in place one year after notification of the tax notice must be notification of a notice containing the notice to pay within 5 days. This notice loses its effectiveness if the attachment does not follow within 180 days of its notification.
- becomes ineffective if they spend 120 days of its execution without having done the first spell (forced sale by auction).
Important Note:
regard to garnishee the procedure "tax collection" has some significant differences from the generic, already 'so called, governed by the Code of Civil Procedure. The law provides that in such cases, the third defendant, upon notification an act which is made aware of the proceedings is invited to pay directly to the dealer due to the numbers registered as debtor, within 15 days of notification of the seizure, to the extent of credit for which the proceeds (dpr602 / 73 art.72 bis).
can prepare and serve the document, and that even employees of the collection agent not licensed in the function of "collecting officer" (novelty 'introduced by the 2008 Budget art.1 Sections 141/142).
also interesting to observe that the first point (possibility 'for the dealer to the third oridnare debtor to pay the sums due to the person listed on the rolls) and' the Court intervened Constitutional (Order 393/2008) said that the regulator 'of the constitutional process and the absence of a significant disparity' between different types of debtors.
For further information, practice the recovery notice board: click here HOW TO DENY
Once initiated the attachment procedure in disputes concerning the right of the creditor to proceed, the breach of procedure and piignorabilita 'goods may be brought to enforcement court. This' by a lawyer and pursuant to art. 615 of the Code of Civil Procedure.
In the case of procedure "tax collection" you can 'act as above only in case of disputes concerning the pignorabilita' of goods.
Matter 'very complex, and it' so good to contact a lawyer at an early stage evaluation.
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