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Basically there are three types of Enforcement proceedings: The most relevant of the three ordinary types of enforcement is surely the Enforcement of an obligation to pay a sum of money, which is carried out through the distraint and forced liquidation of assets belonging to the debtor.
Bankruptcy fallimento, which is regulated in Royal Decree of March 16,No. Such procedures, as well as other special types of enforcement are not discussed in my report. Enforcement of an Obligation to Pay a Sum of Money: General Principles Enforcement of an obligation to pay a sum of money is obtained through distraint and forced liquidation of assets espropriazione forzata.
Therefore the Italian Code of Civil Procedure provides for different rules concerning respectively just to mention the most important: According to these rules the debtor is heard in an enforcement action Codice di Procedura Civile, Art.
This judge is a member of the court of first instance tribunale appointed by the president. Territorial Bis 375 entire course in proceedings relating to personal and real estate is vested in the court of the place in which the property is located Codice di Procedura Civile, Art.
These rulings are normally in the form of orders revocable or subject to modification by the judge. They are based on either oral motions or written applications ricorsi of one of the parties Codice di Procedura Civile, Art. Distraint and forced liquidation of assets are carried out in several steps.
Codice di Procedura Civile, Art. Distraint of Assets Distraint of assets is the necessary first step in forcing liquidation of property, when it is not already held in pledge Codice di Procedura Civile, Art. The bailiff orders the debtor to refrain from any act that would interfere with liquidation of the distrained property Codice di Procedura Civile, Art.
Any interference by causing the destruction, deterioration, or removal of distrained property is a criminal offence see Art. When movables in the possession of the debtor are distrained, the bailiff must draw up a protocol describing distrained assets and indicating their value Codice di Procedura Civile, Art.
When immovables are distrained, distraint is recorded in the office in which a register of rights or interests in real estate is kept Codice di Procedura Civile, Art.
If distrained property is in the possession of third persons, they are required to inform the court of the items in their possession or the amounts they owe to the debtor Codice di Procedura Civile, Art. Certain items of personal property cannot be distrained.
Although the debtor himself may be appointed custodian Codice di Procedura Civile, Art. Distraint also covers rents, profits, interest, and other revenues of the distrained property: The debtor may avoid distraint by paying the sum due to the bailiff for delivery to the creditor Codice di Procedura Civile, Art.
The creditor may select the property that is to be liquidated. The creditor who requested the distraint must apply for the sale of attached property within a deadline of ninety days, otherwise the distraint lapses Codice di Procedura Civile, Art.
They may force open doors and may call upon the police for aid to overcome resistance or to keep the peace. They may search the person of the debtor, subject, however, to the guarantees granted the latter by law and by the Constitution Codice di Procedura Civile, Art.
Preference is given to cash, precious objects, and negotiable instruments that can be liquidated easily Codice di Procedura Civile, Art. Intervention of Other Creditors When an enforcement procedure has been commenced by one creditor, other creditors may intervene Codice di Procedura Civile, Art.
All creditors who have initiated or joined in the proceedings are equally treated in the distribution of proceeds, whether or not they have obtained an authority to execute see Codice Civile, Art.
No principle of "prior in time, prior in right" applies.
In all other cases, only secured creditors have rights of priority see Codice Civile, Art. Secured creditors retain their priority rights no matter at what stage they enter the proceeding Codice di Procedura Civile, Art. The court may not order the sale or distribution of the property until creditors secured by liens that are officially recorded either have been served with a notice of the proceeding or have intervened Codice di Procedura Civile, Art.
The treatment of unsecured creditors varies, depending on whether their intervention occurred before or after the hearing set to determine whether the sale of property is to be authorized Codice di Procedura Civile, Art.
If the unsecured creditors intervened before this hearing, they share equally with other unsecured creditors Codice di Procedura Civile, Art.
If not, they share in any surplus left after the other creditors have been satisfied Codice di Procedura Civile, Art.October 29, BSA uopcourses.
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