In this article, you will find the general steps to follow to collect a debt in Italy, both through the out-of-court and judicial procedure.
Out-of-court debt collection
-
Notice of default
Once the payment term agreed or otherwise indicated on the invoice has elapsed, the creditor must promptly send a written communication to the debtor , requesting that payment be made no later than 10 or 15 days from receipt of the aforementioned communication. It is advisable to send a registered letter with acknowledgment of receipt or an electronic certified email. if the debtor is an Italian company or professional, it/he must have one and this electronic certified address can be verified either on the company’s website or in the INI-PEC public database , which can be consulted here.
-
Exam of the documents and proof of the credit
If the debtor does not respond or disputes the credit, the dossier containing copies of the invoices, the contract and/or commercial correspondence with the debtor may be sent and analyzed by an Italian lawyer. This is advisable at an early stage, especially, if the parties did not agree in their contract on the choice of law and the competent court. Based on EU legislation (par. 4 of the EU Regulation 1215/2012) and absent any parties’ agreement on jurisdiction, the court for the place where the debtor is located has a general jurisdiction on the case.
-
Ascertaining the financial situation of the Italian debtor
Right from the start, especially if the credit is significant, in order to ascertain the actual financial situation (assets/assets and/or level of debt) of the debtor, it is useful to acquire a business report from specialized agencies or the Italian company register, which is part of the European Business Register and can provide for the financial statement and the general business information of the Italian company, in English and also in other languages.
-
The out-of-court communication sent by a lawyer in Italy
All the previous steps may be also undertaken with the assistance of an Italian lawyer who may also send an appropriate out-of-court communication to the Italian debtor, in his/her own language. This notice is needed to start the judicial credit recovery. The Italian debtor will receive an out-of-court communication (letter of formal notice) sent by a lawyer who will order the payment of the debt consisting of principal, interest and recovery costs.
Extrajudicial Credit Recovery: the activities of LEX IBC
The LEX IBC firm carries out all the activities above and further verification and reminder activities in order to settle the case and obtain recovery (for example, further contacts with the debtor in order to enter into a settlement agreement or agree on a payment schedule).
Concerning commercial credits between parties belonging to different States, it is important that the analysis of the case is carried out by a lawyer specialized in international commercial law. LEX IBC can carry out this analysis directly in English or French and follow the debt collection on the basis of the applicable international rules.
If the debtor is insolvent or, in the face of the debtor’s opposition, the judicial recovery in Italy – appears uneconomical for the creditor, LEX IBC may provide a declaration to the creditor which may be used for the tax deductibility of the credit loss, subject to applicable creditor’s tax law.
Judicial Debt Recovery
The recovery of judicial credits in Italy can take place through:
- an injunction or
- ordinary lawsuit,
depending on the type of credit.
- In certain cases, if you already have an Italian or European enforcement order, you can go directly to the enforcement phase, seizing the debtor’s assets or credits.
LEX IBC can obtain judicial credit recovery in Italy and activate the procedures envisaged in the EU.
-
Injunction of payment (decreto ingiuntivo)
Procedure, times and costs
In Italy, the creditor of a liquid sum of money can resort to the judicial procedure of injunction of payment , provided for by articles 633 et seq. of the Italian Code of Civil Procedure, to obtain a decree from the judge ordering the debtor to pay within 40 days from its notification to the debtor.
If there are reasons of urgency, the injunction can be issued by the judge already provisionally enforceable in about 15 days.
If there is no objection by the debtor within 40 days from the notification, the injunction becomes definitive and the creditor can start the enforcement procedure over the debtor’s assets.
To obtain the injunction, it is necessary to provide suitable written evidence of the credit. The following are suitable written evidence:
– unilateral promises by private agreement, including declarations of acknowledgment of debt,
– notarial deeds, registered acts and contracts.
Alternatively, it is possible to demonstrate the credit through the contract or commercial correspondence with the debtor, in which the existence of the credit emerges, and other documents certifying the execution of the contract by the creditor (for example, a report of delivery of the works or a goods transport document).
The injunction issued by the judge in about 15 days will contain the injunction to the debtor to pay the debt within 40 days , plus interest, additional expenses incurred by the creditor and documented (such as, for example, the invoice from the notary who authenticated the extracts of the accounting records), the costs of filing the injunction to the court and the legal fees. When the injunction is issued, the creditor will have to anticipate the tax registrations costs.
In Italy, this injunction must be requested with the assistance of a lawyer for sums exceeding 1,000 euros. The legal fees are recoverable from the debtor in the amount established by the judge.
Objection by the debtor
If the debtor opposes the received injunction, an ordinary legal proceeding will start which on average takes 1-2 years before being defined by the judgment.
However, at the request of the creditor, at the first hearing, the judge can declare the credit enforceable on a provisional basis, so as to allow the creditor to start the enforcement phase and/or guarantee its credit (for example, by registering a mortgage on the property of the debtor).
Absence of response from the debtor
In the absence of a reaction within 40 days of receipt of the injunction, the same is declared definitively enforceable and has the same force as a final judgement.
However, if the debtor is a European consumer, the judge still has some powers to review the decision, based on the rights that European law gives consumers against unfair terms in their contracts with businesses. Thus was decided by the Court of Justice of the European Union in some recent cases concerning the enforcement of mortgages in Italy and in Romania of foreclosures against consumers for leasing credits ( Judgment – Grand Chamber-17 May 2022 ).
Absent a response from the debtor, the creditor is entitled to start enforcement proceedings on the debtor’s assets in the form of the seizure of movable or immovable property, motorcycles and registered motor vehicles, the seizure of bank deposits of the debtor and sums due by third parties to the debtor.
LEX IBC assists foreign companies in their debt collection and recovery.