Unpaid debts and outstanding invoices constitute one of the traditional obstacles to the fully functioning of any company or business. Within this scenario, it is paramount to be aware about debt recovery legislation in each jurisdiction where the company operates.
Under previous circumstances, in the event your company had to deal with a bad payer in Italy, you can hire a team of professional lawyers dealing with debt recovery in Italy. What are the legal instruments you can use to secure the payment? Firs of all, it is important to distinguish between actions that can be initiated out of court from those that can be carried out in court.
OUT OF COURT OR EXTRAJUDICIAL PHASE
The traditional extrajudicial procedure usually involves the drafting of a letter of injunction to be delivered by certificated e-mail to the debtor. This is a letter of formal notice that is useful to have a proof of delivery. Usually, the injunction letter specifies clear deadlines to meet within a certain period (usually one-two weeks). In case of lack of debtor’s response, judicial phase is the last resource that creditors may undertake.
IN COURT OR JUDICIAL PHASE
This phase is divided into a series of steps:
- Creditor’s lawyer drafts and lodges a payment injunction that is addressed to the Judicial Authority. Specifically, the Authority issues an injunction when:
- There is not adversarial procedure between creditor and debtor;
- The debt is based on a documentary evidence provided by the creditor (Contracts, invoices, Bills).
Once the injunction has been notified to the debtor, he will have a term of 40 days to decide whether or not fill an opposition to the judicial injunction. Therefore, there are two more alternatives;
- The debtor fills an objection and then an ordinary cognition process begins and it will end with a sentence;
- The debtor does not file the opposition while 40 days term expires. The Judicial Authority declares the injunction enforceable, which constitute suitable title to establish a forced execution.
- In presence of an enforceable title and where the debtor does not comply spontaneously, it is possible to proceed with a forced execution of the payment order included within the injunction.
However, forced execution must be preceded by the notification of the title in its enforceable form and of the writ of execution. The writ of execution can only be used in presence of enforceable title.
After notification of the enforceable title and the writ of execution, the debtor has not less than 10 days to comply. On the contrary, the forced execution will expropriate debtors’ assets so to allow the creditor to satisfy his credit.
- After 10 days from the notification of the injunction and the debt is not paid yet, the creditor can request the foreclosure of debtors’ assets.
- Debtor’s assets can be sold with or without an auction procedure and the creditor will satisfy his claim on the judicial sales of debtors’ asset according to his/her own credit title.
If you need any help in credit collection to which Italian law must be applied, VGS Corporate Lawyers , a law firm based in London and Milan, offers legal assistance to English-speaking creditors in the process of amount due recovery in Italy and Credit Collection.