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.