25The foreign individual or the foreign company that has to collect a debt in Como, Italy (Italia), may appoint our Italian qualified lawyers to effectively legally proceed with the collection against the debtor. Marzorati Law Firm deals since a very long time, all over Italy, with the activity of debt recovery and debt collection.
How we proceed:
- Request of payment and out-of-Court issues
Marzorati Law Firm is able to advise the foreign citizen or the foreign company concerning every civil proceeding connected to any debt recovery, updating timely the client who will also be involved regarding the negotiations with the counterparty and regarding any possible settlement.
- Notice letter (“messa in mora”): the letter, which allows the creditor to interrupt the statute of limitation (“prescrizione”), with which the creditor requests the payment of the debt;
- Arbitration (“arbitrato”): if in the executed agreement the arbitration clause (“clausola arbitrale”) or the dispute resolution clause (“clausola compromissoria”) has been inserted and accepted, the issued shall be decided by a board of arbitrators. The decision, taken by the arbitrators (who are not judges under Italian law) will be valid as a sentence.
- Possible conciliation phase
- Compulsory mediation (“mediazione obbligatoria”): in matters like condominium, real estate, inheritance, family agreements (“patti di famiglia”), rental agreements (for a consideration or free of charge – “comodato”), transfer of companies, compensation for damages due to malpractice and medical negligence and libel expressed by print, insurance or banking agreements, before starting a claim before the competent Court in Italy it is compulsory to proceed with compulsory mediation. The parties shall meet before a third party, who is impartial (mediator), to the specific purpose of finding a “gentlemen agreement” concerning the potential issue. The parties, advised by their lawyers, shall meet in the legal office of an officially recognized mediation entity and, helped by the mediator, they to find a mutually agreed settlement of the issue;
- Advised negotiation (“negoziazione assistita”): in matters like compensation for damages due to car or naval accidents, for payments equal to, or lower than, Euro 50.000,00 (fifty thousand Euro), and like transports agreements, before starting a claim before the competent Court in Italy it is compulsory to proceed with the advised negotiation. The one who files the claim must invite the other party to the negotiation, in order to find a mutually agreed settlement of the issue, before filing to the competent Court in Italy.
- Possible judicial phase:
if the debtor does not pay or if the negotiations are a failure, there will be a choice to alternatively proceed with either an:
- Injunctive relief (“decreto ingiuntivo”): provided that some terms and conditions set forth under the Italian law are all fulfilled, it is possible to file for a legal injunction, which has the same effect of a sentence, addressed to the debtor, who is ordered to pay. This injunction is a very fast one, because the Court shall have to evaluate only that all terms and conditions, set forth under the Italian law (legge italiana) have already been fulfilled, and it allows to obtain forthwith a judicial recognition of the debt; or a
- Claim (causa): if it is not possible to file for an injunctive relief, it shall be necessary to file an ordinary proceeding before the competent Italian Court (which shall be a Tribunale or a Giudice di Pace). In these cases, the timing shall be inevitably longer and a complete legal analysis shall be necessarily carried out in order to prove the existence of the debt and, consequently, to get a favourable sentence by the competent Court.
- Possible enforcement phase
- Foreclosure (pignoramento): it is an enforcement proceeding by means of which both some assets (like for example bank accounts, shares, obligations) and some goods owned by the debtor (like for example cars) are frozen, with the specific purpose of proceeding with the request of either transfer of money (found cash or deposited on bank accounts) or sale of frozen assets / goods, in order to obtain an amount of money equal to the due debt;
- Attachment (sequestro conservativo): before the foreclosure, there could be a huge risk: the debtor could sell all his/her goods and assets; for this specific reason, provided that some terms and conditions set forth under the Italian law are all fulfilled, it is possible to file to the competent Italian Court a request concerning a freezing order, i.e. an interim injunction that restrains a party from disposing of or dealing with his/her goods and assets, so that these latter ones shall be the target of a following foreclosure;
- Revocatory action (azione revocatoria): in case the debtor has sold all his/her goods and assets notwithstanding the foreclosure or the attachment, it is possible to file a request to the competent Italian Court to obtain a clawback decision, which declares null and void the deed(s) of sale;
- Application for bankruptcy (istanza di fallimento): if the debtor company is in an economic situation of serious insolvency (stato di insolvenza), it is possible to make an application to the competent Italian Court to request the bankruptcy of the company, with the following sharing of remaining company’s goods and assets to the benefit of its creditors; however, generally speaking, in cases of bankruptcy is very difficult to manage to collect, in whole or in part, the respective debt.
- Admission to the liabilities in a bankruptcy proceeding (insinuazione al passivo): in case a bankruptcy proceeding concerning the debtor company is already in force, it is possible to file a proper application for the admission to the liabilities in the same proceeding, in order to participate to the possible sharing of the goods and assets of the debtor company.
As the legal instruments set forth under the Italian law are several and each legal instrument provides for specific rules to comply with (and also for specific expenses to be paid by the client), it is essential, since the beginning, to evaluate which proceeding should be chosen, our law firm, in order to obtain the best possible result.
Marzorati Law Firm, although being located in Milan, can count on a widespread network, made also of correspondents colleagues who work on Como, Italy (Italia), with the specific purpose of advising the Clients directly over the respective territory, in order to guarantee a legal defence which could fully satisfy each Client.