CategoryLenders

Donation and balance sheet – How can I take action against the debtor’s 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 an equity 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 publication of the deed of setting up the fund.

Naturally, the creditor will need the judge to sanction the liquidity, certainty and collectability of the claim claimed by issuing an injunction: the arbitration award in his favor can help in this sense, but it does not constitute a title to start a enforcement action against the defaulting debtor.

 

 

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 who gave birth to the patrimonial fund, and the consequent dissolution of the marriage, the conferred goods are no longer protected by the assets and those owned by the deceased are transmitted to the heirs under Article 457 of the Code civil, except for the presence of minor children: if there are minor children, the fund lasts until the age of the last minor child is reached.

 

What are the elements of the impignorability of the current account held by the spouse who is not a debtor in communion with the debtor spouse?

 

I am in communion of property with my wife, who with the activity she had contracted many debts. I have a checking account made out only to me on which I will pay an amount equal to half of the sale of our house. Any creditors, could even attack my account or the aforementioned account does not belong to the things related to the communion of assets?

 

According to established jurisprudence the executive aggression of each of the assets in legal communion between spouses, for personal debts contracted by one of them, is legitimate.

Therefore, the current account in the name of the non-debtor spouse is liable for debts of the debtor spouse if the matrimonial regime adopted by the couple is that of the communion of assets.

However, the non-debtor spouse has the right to receive, at the time of distribution, half of the proceeds (gross of procedural costs) of the sale of the asset. In the specific case of foreclosure of the current account, the non-debtor spouse is entitled to half the cash and securities account.

Furthermore, the non-debtor spouse could claim the sums that are exclusively attributable to him in the current account, thereby reducing the liquidity in communion subject to expropriation. For example, the proceeds from the sale of a property received as inheritance (a property which, as we know, is not part of the communion between spouses) by the non-debtor spouse.

In practice, if the account of the non-debtor spouse has 100 euros at the time of the attachment, and 40 euros constitute the (traceable) proceeds of the sale of a property inherited from the non-debtor spouse, the creditor of the debtor spouse could obtain the assignment of 30 euros following an opposition to the execution effectively carried out by the non-debtor spouse.

We use the conditional simply because the judge could always consider (the right is also opinion) totally irrelevant the reasons why the money was paid into the current account of the non-debtor spouse, since money is universally recognized as a fungible asset for excellence (in practice, once the proceeds from the sale of the immovable property received as an inheritance are paid into the current account, that money loses its genesis and is confused with the other assets in communion of goods).

In short, the message to be conveyed here is that the current account held by a spouse who is not a debtor in communion with the debtor spouse, must be considered, in a prudential way, 50% seizure (in the sense that it is clear, once a distraught in full the current account on executive action promoted by the creditor proceeding against the debtor spouse, the non-debtor spouse, with the necessary support of a lawyer, will be able to recover, from the execution judge, 50% of the dispossessed with the attachment ). In the face of this presumption of prudence and the difficulties that must inevitably be faced for the protection of the non-debtor spouse, it will be better to take all the necessary precautions.

Also because there is always a risk that the creditor will adopt the procedural strategy aimed at demonstrating that the debts incurred by the debtor spouse to finance his professional activity have been used to meet family needs: which would make the spouse debtor (a legal principle that still applies, even if the matrimonial regime adopted was that of the separation of assets).

 

Is the revocatory action of creditors feasible for the sale of the debtor’s house 4 years before the Injunction?

 

My husband and I issued a surety in October 2012 in favor of my brother, for a mortgage loan granted by the bank to pay off his debts. With the amount obtained, the brother paid two installments (of 120) and then stopped. In April 2013, we sold a house (two joint apartments) to the children, one for each (onerous maintenance). In October 2014, the eldest son donated his apartment to his brother. In December 2013, the bank made the credit to my brother suffering and communicated the formal notice to the guarantors by registered letter with return receipt.

On 24 August 2017, the bank notified us of an injunction to pay (€ 49,000) granting 40 days for the opposition, which we did not make (we do not have 49,000 euros, we can only offer € 30,000).

The younger son, owner of the two apartments of the house, lives there with his family (three children), and in the same (one apartment each) we live and we are also residents.

Can they revoke the sale and seize the house?

 

I’m so sorry, kind lady, but unfortunately I have bad news to report: as regards the transfer of ownership of the two properties to their children, which took place in 2013, the bank can easily request the court (and obtain) the revocation of the deed of sale and, naturally, the subsequent donation intervened between his two sons will be ineffective towards the creditor.

The prescription of the revocatory action is five years, but does not actually start from the date of the act revoking, but from the moment when the act was given publicity to third parties (through the registration in real estate registers), as only from this moment on right can be asserted.

Furthermore, it should be added that the mortgage transfers with the tied asset: therefore, the bank could also neglect to exercise the revocation action and act enforceable on the mortgaged property, regardless of the fact that the current owner is not a his debtor.

The relative impertinability of the sole property owned by the debtor, in which he resides, refers exclusively to the enforcement actions promoted by the concessionaire for the collection of tax debts (tax payable by which Equitalia was active until July 2017, now replaced by Revenue Recovery Agency ). Moreover, it is an endangered protection, since the State is thinking well to sell its tax credits to the banks, which will be free to expropriate even the only house of the debtor in which the latter lives .

In short, the bank can expropriate the house, even if it is the sole property of the debtor and even if he resides there with his family.

 

Donation and debts – What are the risks?

 

My father wants to make a donation of the house with the right of usufruct because he has 13 thousand euros of debts with the collection agency. My husband and I will be completing the first house next year. Can this donation affect any incentives / mortgage? As for the fees should I pay Imu, Tarsu etc? Would the taxes be payable to me?

 

Before addressing the taxes and tax benefits that may no longer be usable by the owner of the property, it would be appropriate, we believe, that his father consulted a notary: first of all, the usufruct is seizure by Agenzia Entrate Riscossione (if anything, his father he should reserve for himself a right of residence for the property donated and not the usufruct), but also the donation could prove useless.

As is known, in fact, with the entry into force of the law 83/15, the attachment has become easier for the creditor, who can proceed even in the presence of donations, if he can write down the deed of attachment within a year from the transcription of the deed of donation.

Once the condition just stated has been met, the creditor who sees his reasons jeopardized by an act of assignment of assets put in place by the debtor, such as a donation, will be able to seize the good donated by the debtor without first having to obtain a sentence from the Court revoke the deed of gift (the so-called revocation of the deeds of the debtor). Otherwise, within five years from the completion of the deed of gift of the asset, the creditor will be able to refer the judge to request, and obtain, the revocation of the act device pursuant to Article 2901 of the Civil Code.

Once the property is donated, the donor becomes owner of the property and as such subject to all the tax obligations: some taxes will have to be paid, eventually, by the usufructuary or the holder the right of residence, but the owner of the property will be responsible in solid with respect to the omission or insufficient payment of the same taxes.

With regard to tax benefits, remember that they are not due when you buy a house located in the same town where you are already owner (exclusive or in communion with the spouse, property rights, usufruct, use and residence) of another property purchased (even without benefiting from the first house benefits).

In order to benefit from the facilities, it will be necessary to sell the old house before buying the new one, unless the property is unsuitable to meet the housing needs of the family (Cassazione ordinanza 21289/2014).

 

 

The debt is 13 thousand euros: so the house, to be mine, must pass 5 years from the act of donation. I do not think it will come to 20 thousand for the mortgage. Also because, from now, it will pay taxes. Otherwise what can the collection agency do, apart from the mortgage? Can not sell it right? Can you attack my father’s pension?

The house can not be expropriated if the debtor lives there: the debtor’s pension can be forfeited to the extent of the fifth exceeding the vital minimum.

 

 

My father should continue to live in the house he will give me. What I want to know is: if the debt with the collection agency does not exceed 20 thousand can not put the mortgage? So if you give it to me they will not do any action in the next 5 years right? After 5 years will I be safe? I do not know if the donation is convenient. Meanwhile, we await fiscal peace

If his debtor father is no longer the owner of the property, the house can no longer be expropriated, or mortgaged, for the debts of his father (but only, possibly, for the debts of the new owner).

If your father gives the house and five years pass from the date of the donation, the Inland Revenue can no longer ask the judge to make the donation ineffective.

In any case, even in such a hypothesis (inefficacy of the donation), the Inland Revenue Recovery Office could not expropriate the property (if the debtor resides there and does not own other properties) nor even mortgage it if the debt remains below 20 thousand euros. But as soon as the debt exceeds 20 thousand euros, the house could, however, be mortgaged.

And finally, with the donation it is avoided that the called to the inheritance are forced, in succession, to renounce the property not to take on the debts of the deceased or to accept the inheritance and pay the debts of the deceased ( Agenzia Entrate Riscossione could seize current accounts and salaries of the heirs)

 

 

The crux is: to put a mortgage there must be a debt of over 20,000 euros. If the debt to the collection agency is much less, they can not revoke the donation of the house?

The impossibility of registering the tax collector on the property owned by the debtor, when the debt is less than 20 thousand euros, does not prevent the creditor from being able to request, and obtain from the judge, the revocation of the device act free of charge (the donation ).

It would be a judicial action that, although it does not have a restitutory effect, in the sense that the asset would remain in the owner’s property, however, would leave it to the Tax Revenue Agency, the possibility of registering a mortgage on the good if the debt of the donor reached or exceeded the threshold of 20 thousand euros.

Surely, to be clearer, the acceptance of the request for revocation of the donation would not result in the return of the property in the assets of the donor, with the consequence that the called, to inherit the asset left by the debtor once deceased, would be forced to take over the debts of the de cuius also.

In short, in the event that the Agenzia Entrate Riscossione decides to proceed with the revocation of the deed of gift within five years granted by the registration in the public real estate registers and where the application for revocation was accepted, the concessionaire of the collection (and, of course, only the collecting agent in whose exclusive interest the deed of gift would be declared ineffective) would retain the possibility to start on the asset, now owned by the donor, all applicable enforcement and / or precautionary actions (in this case the mortgage) as if the well it remained in the debtor’s assets.

The consequence is that, in the case of donation and acceptance of the request for revocation, the donor would be forced not to exceed or exceed the threshold of his debt to twenty thousand euros if he wished to prevent the registration of the mortgage on the good of the donor.

 

 

But since in these years they have not done any action, except for a stop years ago for a car that no longer has, difficult to make the revocation of the donation. In practice do they not attack the pension first? The house is joint, so two pensions (about 1000 euros and the minimum of my mother) to attack? The folders are almost all prescribed. Maybe that’s why they did nothing or why it was Equitalia before. Beyond the donation, is there anything more effective?

Actually, in the situation described, it seems difficult to think that the Revenue Agency can move to ask for the revocation of the donation when at most, to enforce the claimed credit, would have exclusively the registration of mortgage tax, when and if the debtor aggravates the its position reaching the debt threshold of 20 thousand euros.

Moreover, the attachment of the two solidarity bearers is also problematic. The minimum is immovable, the other could be seized at most for 70 euros per month (taking into account the impervability of the vital minimum of about 650 euros).

This explains why, over time, there have been no particularly incisive executive actions.

 

Injunction for debt that would seem prescribed

 

I just received (November 2018) an injunction order for a debt contracted with a financial company (Linea) which was then sold twice to others (Locam and Itacapital of the Kruk group). The debt, of 10,500 euros, dates back to January 2002, I only paid it for 2,078 euros. I was sent only a few simple letters of invitation to pay, but never a registered letter, and I’m sure; so the debt would be prescribed today, or am I wrong? In addition, also the assignments of the debt were communicated to me only by regular mail. Is it possible that an injunction has been issued despite this defect?

 

You can not be sure that you have ever received a registered letter: when the postman has to deliver a registered letter, it may happen that the recipient or a person legitimated to sign the receipt (a family member) is not identified for collection. In this hypothesis, the postman fills out a notice of stock, which may be lost due to the large amount of paper advertising notices that now clog up our mailboxes, and report the missive in the office. If the recipient does not go to collect the notification, the notification will be completed correctly after 10 days of storage (completed).

Fortunately, you have at least received the injunction: you have 40 days, starting from the date of notification of the order to pay, to oppose and, therefore, to plead the allegedly imposed limitation to the right of reimbursement of the alleged action, to complain presumed absence of any communication recommended to notify you of the assignments of credit carried out from 2002 onwards, to contest the presumed legitimacy of the chronological account statement presented by the creditor at the time of appeal by injunction.

But, unfortunately, it will need the technical support of a lawyer and will have to consider the risk that the counterparty can show, in the opposition, receipts of delivery or full stock related to the communication of interruption of the limitation periods as well as the assignment of credit .

However, we must not believe that the judges who authorize an injunction are too careful to the documentation attached by the creditor and often the creditors also hope in the natural predisposition of the debtor, who renounces to oppose conscious not to have complied: therefore, it will agree that his lawyer or, if you prefer, proceed preliminarily to examine the documentation necessarily filed in the Court by the other party and together evaluate the convenience of hearing opposition. It may be that the creditor holds the winning cards: by reading them first, one may perhaps avoid spending more money on the unified contribution and the lawyer’s fee for judicial assistance.

 

I have debts and my father has excluded me from the estate with testament – Can my creditors require the reduction of the inheritance in my place?

 

In order to save my share of inheritance from any creditors I have, my father has excluded me from his will, leaving his assets to my sister, my mother, my daughter (her nephew) who will have to take charge of my maintenance.

In doing so, of course, my legitimate share is damaged. My question is therefore the following: only I, the delegitimated, can I act judicially to demand the reduction of the legitimate or can my creditors do so?

 

As you know, a parent can not exclude his child from the right to obtain a share of inheritance: in fact, to protect the general interest in family solidarity, our legal system provides that the closest relatives of the de cuius have the right to obtain, even against the will of the deceased and in contrast with the deeds of testamentary dispositions established by him, a portion of the value of the inheritance and of the assets donated to life by the deceased himself (right of legitimacy or reserve).

Often, however, in an attempt to avoid (or at least make it less likely) the possibility that the legitimate debtor may suffer the expropriation of assets that would be entitled to be inherited by his creditors, the solution is identified in the exclude it with will, given the renunciation by the legitimate debtor himself to exercise judicial action aimed at restoring the infringed right.

Unfortunately, however, articles 2900 and 2901 of the Civil Code provide that the creditor may request that the deeds of disposal of assets with which the debtor is prejudicial to his own reasons are declared ineffective. In particular, Article 2900 recites the creditor, to ensure that his or her reasons are met, may exercise the rights and actions that are due to third parties to his debtor and that he neglects to exercise, provided that the rights and actions they have patrimonial content and they are not rights or actions which, by their nature or by law, can not be exercised except by their owner.

In this case, the creditor could ask for the revocation of the act by which, by granting full adhesion and acquiescence to the testamentary dispositions, the legitimate debtor had renounced to promote against any other heirs testamentary any reduction action for damage of legitimate share. Or even proceed on behalf of the legitimate debtor himself to restore the damaged hereditary share.

In other words, if there is an inertia of the legitimate debtor with respect to the judicial action aimed at obtaining the right to the portion of inheritance that is due to him, the conditions established by the Civil Code are fulfilled so that the creditor can act in the reduction action inheritance subrogated to the legitimary.

Let it be clear that the creditor is not always prepared to anticipate legal costs to venture into a complicated legal action: everything depends, as always, on the amount of credit and the value of the assets to which the rightful debtor is entitled to the outcome of the surrogate reduction action.

Any possibility of escaping the action eventually promoted by the creditor, however, exists: suppose that the rightful owner was left the right of habitation of a property owned by the deceased. The debtor then writes the article 551 of the civil code according to which, if a legitimary is left a legacy in place of the legitimate, he can renounce the legacy and ask for legitimacy. In a few words it is necessary the prior renunciation of the debtor son to the right of habitation, arranged for will, to claim the lesion of the legitimate share.

Now, can the creditor subrogate to the debtor’s debtor’s son to request the renunciation of the right of residence pursuant to Article 2900 of the Civil Code? No, because the same article mentioned above also establishes that the creditor can replace the debtor heir provided that the rights and the shares have patrimonial content and they are not rights or actions that, by their nature or by law, can not be exercised only by their owner.

In short, the revocatory action would be inadmissible in relation to the act of acceptance of the right of residence in replacement of the legitimacy share since it would be subject to the prior waiver of the right of residence exercised by the debtor who acquired that right. Neither the renunciation of the right of residence could be requested by the creditor in subrogation of the debtor (Court sentence 4005/2013).

 

 

But if the person who inherited the entire property sells it later, in what position would the debtor who has the right of residence against his creditors be located? Alfonso Nigro

The debtor in respect of his creditors would be in the same position he had before the sale of the house on which he has the right of residence: in practice, creditors will have to find other ways, different from the execution of real estate (foreclosure of the current account, salary , for example) to satisfy their legitimate claims, since the right of residence is not distrable (unlike the usufruct).

Moreover, and only incidentally, it should be added that the right of residence does not end with the sale of the house: it is a real right transcribed in public real estate registers. In essence, those who buy the house, unless agreed with the person who holds the right of residence, can not occupy it until the death of the latter.

 

Bank transfer from the debtor to the family member – Is the ordinary revocation promoted by the creditor possible?

 

I lost a civil case and I was sentenced to pay compensation for the damage from the crime: the citation in question is from March 2012, while the sentence is dated March 2016.

In 2013, from a current account in my name I transferred to a family member of the sums and shortly after I closed that bank account. The question is: can the creditor propose a revocatory action on transfers from a current account carried out by me in 2013?

 

Consolidated jurisprudence leads to the direct donation of the donation, in the spirit of liberality (ie without the obligation deriving from a contract stipulated between the parties) of sums of money, provided they are of a non-modest amount , by bank or bank drafts, as well as bank transfers .

In a nutshell, one of the most important conclusions for the debtor is that if he empties his current account with a bank transfer to another person, without that transfer being justified by an obligation, namely in the hypothesis that the transfer of money takes place for pure spirit of liberality, a direct donation can be considered between the settlor and the beneficiary of the transfer.

The direct donation, if it is not of modest value, must be formalized, by law, through a public deed: otherwise it may be challenged for nullity by those who have an interest in it. And therefore, if the public deed of donation is formalized, this can be subject to revocation action on the initiative of the creditor (article 2901 of the civil code); if there is no public deed, the creditor can substitute itself to his debtor (article 2900 of the civil code) and request the declaration of nullity of the donation due to lack of written form.

In his case, therefore, the creditor has the possibility to act simply by objecting to the nullity of the donation (assuming he is aware of it), without the need to carry out a revocatory action.

Difficult to invoke the five-year requirement of the provision if the compensation claim was incardinated in 2012 and the donation made in 2013, when, that is, it had already materialized the risk of a conviction.

In fact the injured proceeding, not having the damaging made public the act of donation (as the law requires) has not been able to challenge it. Not to mention the fact that an act, as void, does not run into prescription terms.

 

 

Consequences of the legal presumption of ownership for those living with a debtor

 

 

My question is related to the presumption of ownership: my partner following a tax injunction, must pay the tax bill delivered or respond to an act of enforcement of the assets, or to the seizure of assets allegedly his.

I state that he lives in the house of my exclusive property, where nothing is really his, shown by the fact that a part of the movable property was paid exclusively through my personal current account (in which he does not hold signatures) and a part, however, arising from divorce with my ex-husband.

My separation took place in 2003 while the divorce deed was carried out in June 2011, adding a list of assets shared with the former spouse.
Precise that my partner, the tax bill was delivered the first time in 2009. Then, won the first hearing, the second was not successful as hoped and the new folder came home a few days ago.

I would kindly let you know, after examining the situation described, whether the bailiff has the right to exert forced recovery of the assets, or I can oppose and intimate him.
Can I possibly file a complaint?
Can we also take into account the fact that there are 2 minors in the house, children of the current companion?
Then, am I the one who has to prove that the goods belong to me or is it they who have to prove that the goods belong to my partner?
And finally, during the period in which it will have to prove the belonging of the assets, the same in the meantime, however, are confiscated or placed in detention?

I would like to point out that between me and my partner there are 14 years of difference (I am older) and that when he came to live in my house he was still studying and had no income, if not the maintenance aid to studies from the father.
Could it be in my favor?

We have a common current account opened after several months of cohabitation and that we use for living expenses and for utilities, we say as a contribution “for the use of the house”. Everything else, including child support, I pay with my salary, charged to my private bank account and higher than his.

Can this prove to prove that he has nothing and that the movable property, even if not specifically registered, is my exclusive property?

 A recent Cassation ruling has ruled that it is not possible to seize the assets located at the habitual domicile or residence of the debtor, if he is a guest.

But if your cohabitant can be considered a guest it is something that a bailiff can not decide. Who can declare the foreclosure only on the basis of certain acts.

Evidence is not valid, which could only be useful in a trial phase and can not be opposed to the judicial officer. But only to the judge for executions, after the attachment.

The presumption is presumption, in fact, and the burden of proving ownership of the assets seized to the debtor at his home or his residence is placed in the hands of the actual owner.

The separation sentence with a list of the assets assigned to you is a probative document that the bailiff will surely have to take into account.

For the rest, invoices are needed, with a detailed description of the property.

It would be advisable to transform the joint account into a personal account where his partner may have the right to sign and withdraw, personally I consider it much more desirable than a foreclosure attachment.

In this regard (current account payable to the wife on which the husband, under attack by Equitalia, is delegated and has the signature): this account can be distrained if the debtor is the one who is delegated, but the account is not in his name?
I heard conflicting versions.

I would say no, my bank considers the delegation internal.

I thank everyone for your answers and considerations, but I would like to clarify that in my joint account the salary of my partner is exclusively credited and that we use only for living expenses and for utilities. So even if they confiscated this account … they would not find us practically nothing …

I would like to take the opportunity to ask for clarification, perhaps to Dr. Simone Saintjust, concerning the proof.
I am relieved to know that the act of my divorce may constitute not indifferent evidence but having been made only in June 2011, that is after having received the injunction (dating back to 2009) and after having lost the second cause (about January 2011 ) but in any case before receiving the payment card from Equitalia (come home at the beginning of August), can it be considered valid also in this case according to you ?!

 

Mortgage debt increased again

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The new figures from Statistics Netherlands, on the finances of households, show that in the third quarter of 2018 the outstanding mortgage debt of households increased by 1 billion euros. As a result, the mortgage debt has risen seven quarters in a row.

The total outstanding mortgage debt of households rose to EUR 702 billion in the third quarter of 2018. This is because the sale of houses continues and more expensive houses are bought. Despite the increase in debt, mortgage debt declined as a percentage of gross domestic product (GDP, national income). GDP increased more than the mortgage debt over this period. From 2014 onwards, more mortgage was taken out each quarter than repaid (hence the increase in mortgage debt). From that time on the number of sold owner-occupied homes picked up again and the average house price became higher.

Banks and mortgages

Banks have been given more mortgages under management in recent years. One way for banks to provide more credit is the possibility of securitising mortgages they have provided. This means that banks temporarily sell their mortgages to other financial intermediaries. This way the outstanding mortgages disappear from banks’ balance sheets and they can issue more loans.

Despite strict lending conditions, still higher mortgage debt

In recent years it has become much more difficult to qualify for a mortgage. Because of the strict loan conditions. That the mortgage debt has not fallen is due to low interest rates. It is so attractive, which makes it possible to borrow a high amount for a house. The expectation is that the mortgage debt will continue to rise for the time being.

 

Debts and inheritance – I give up or do not give up?

 

Unfortunately I had a financial collapse following the bankruptcy of my sas and I would like to ask if the creditors can attack the house that my father donated with a notarial deed to my son leaving me the habitability.

In the house in question me and my figio we have the residence and is also the only property owned.

I have read that under Article 2900 creditors can ask for the revocation but I understand that it is assumed the inertia of the heir to reclaim the legitimate.

In this case being I in the act of donation present as the holder of the ability and having therefore signed and accepted the deed of donation can I consider myself protected from revocation actions?

At the time of the hereditary call, should I accept my father’s legacy or should I give up?

 

The revocatory action, pursuant to Article 2901 of the Italian Civil Code, allows the creditor to ask the judge the ineffectiveness of a deed of the debtor’s device aimed at precluding the collection of what is due to him. The deed of gift, of which she refers, was instead arranged by her father that debtor is not. The prescription of the revocation action is five years from the date of the deed transcribed in the public registers.

The day that she was called to the legacy left by her father, the creditor could ask the judge, ex article 2900 of the Civil Code, to replace the legitimate debtor to obtain the reduction of donations made alive by the parent, leading back to the hereditary mass also the property previously transferred to his son. But you can not do it, because you, the legitimate agent should at the same time renounce the right of residence donated by his father and the creditor can not force it, ex lege, to this renunciation (it is clear, the action of reducing donations made in life by deceased could instead be experienced without problems by another coherede).

Again, when she renounced the inheritance left by her father, the creditor could challenge the waiver under Article 524 of the Civil Code to be authorized to accept the inheritance in place of the called debtor who renounces. Therefore she can not renounce heredity.

The notary who has already carefully designed the previous act of donation, as explained in this discussion, will probably advise his father to draw up a will that almost completely excludes the debtor’s son from the inheritance, still allocating a little (just to give an example, one thousand euro ). Now, always on the basis of the provisions of Article 2900 of the Civil Code, the creditor could challenge the will and subrogate to the debtor called to the inheritance, injured in the quota of legitimate, to claim a division of the inheritance that complies with current legislation for successions. But, once again, with legislation and jurisprudence unchanged from the current ones, the creditor will find it impossible to act judicially, because the subrogation of the creditor to his debtor, aimed at requesting the restoration of the legitimacy quota, would be subordinated to a preventive waiver of the debtor to the legate (one thousand euros). What the debtor, of course, will not (and can not be forced to do).

Of course, those thousand euros would then surely be distrained by the debtor: but this would, it seems to me, a lesser evil. Moreover, if his father is the owner of another property could, at most, even leave him a further right of housing (which, as we know, you can not seize).

 

 

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