What are the new advances on the foreclosure decree and the most important changes to come? The procedure and timing of foreclosures have recently been among the main issues addressed by the government, with changes already approved last year and further current changes that are helping to change foreclosures, making them even more difficult in some cases. Let’s see below what could still change for foreclosures.
- Advances on the decree foreclosures and important changes to come
- Changes already underway for 2023 foreclosures
Advances on the decree foreclosures and important changes to come
The Meloni government is starting to define further changes to the foreclosure procedures for money, houses or other modifiable or immovable assetschanges that may come or with a specific decreeprobably short, or with the new tax reform which should arrive between September and October, or, again, with the commutation of some recent sentences on foreclosure into laws.
Possible changes could concern new simplifications for the procedures for initiating foreclosures, also providing for faster times in order to speed up due non-payments which risk initiating the real procedure of forced expropriation with foreclosure, up to possible new sanctions. However, everything is still being defined, these are possible advances and there are currently no certainties on the measures and arrival times of the new foreclosure decree.
Changes already underway for 2023 foreclosures
New changes on foreclosures have already been defined during the year but also starting from last yearstarting from new limits on the attachment of salaries and current accounts, which are updated every year because they vary and depend on the amount of the social allowance, which changes every year, because it is subject to revaluation.
In 2023, due to the new revaluation, the amount of the social allowance has increased to 503.27 euros per month for 13 months and the attachment of salary depends on the amount of the social allowance to the extent that, by law, there is no he can seize the minimum subsistence allowance, equal to double the social allowance and can never be less than a thousand euros.
Therefore, if the amount of the social allowance is 503.27 euros, the minimum subsistence allowance for 2023 is 1,006.54 euros. The salary attachment can take place in different measures beyond this amount.
It is possible to attach the salary according to the limits established by law both with the employer and with the current account where it is credited. In particular, it is possible to garnish the salary from the employer in 2023 only within the limit of one fifth, while if the creditor is the Revenue Collection Agency, the limits for the garnishment of the salary are:
- a fifth for salaries above 5,000 euros;
- a seventh for salaries up to 5,000 euros;
- a tenth for salaries up to 2,500 euros
As regards the attachment limits on a current account, the current laws provide, on the basis of the balance available on the account, the possibility of attaching only the part exceeding three times the social allowance, i.e. 1,404.30 euros considering the amount of the social allowance, as mentioned, in 2023 of 503.27.
Further changes already approved (last summer 2022) on the attachment concern the so-called attachment to third parties, which allows the creditor to proceed with the recovery of credits from the debtor but in the possession of another person.
Il third party garnishment it involves the proceeding creditor, an active party in a substantive and procedural sense; enforced debtor, passive party in a substantive and procedural sense; and attached third party, party only in the procedural sense, is notified to the initial debtor of the enforceable title and of the writ of precept and has different jurisdiction, therefore the powers for attachment to third parties change.
In particular, for the seizure of movable property from third parties, the jurisdiction lies with the judge (therefore the Court) of the place where the assets are located, while for the seizure of credits the jurisdiction lies with the judge (therefore the Court) of the place which the debtor has his residence, domicile, abode or registered office.
The only exception in this sense is represented by the case in which the debtor is a public administration: the jurisdiction, in fact, lies with the Court of the place where the third party has his residence, domicile, abode or registered office.
Changes to foreclosures have also been defined by recent rulings which, despite having legal value, they must become laws and perhaps it is a step that could be taken precisely with the definition of the new foreclosure decree.
The first new recent sentence on the attachment is the one issued by the Court of Tax Justice of Syracuse according to which the collection agent cannot attach credits claimed by the taxpayer to public bodies if 60 days have elapsed from the arrest of the sums.
The sentence originates from the legislation that allows the tax authorities to initiate the special attachment procedure provided for by the tax collection law according to which the collection agent can implement the attachment directly, without turning to the ordinary judge, obtaining the payment of the claimed credits with an expropriation forced against the third party but only within the term of sixty days.
Once this term has elapsed, enforcement can only take place through the Court. Taxpayers can therefore obtain payment of their credits, having foreclosures started after the deadline declared ineffective due to forfeiture.
Another new recent sentence for foreclosures came from the Court of Cassation and implemented for the first time by the court of Milan on May 23rd.
The Court of Cassation intervened with a recent sentence establishing that, if a bank contract provides for unfair and abusive clauses, the debtor can oppose the property foreclosure even if he has not acted promptly in the past, allowing the terms to expire and making the injunction definitive.
However, the following conditions must be met in order for the Supreme Court ruling to be implemented:
- the debtor must be a consumer;
- the banking agreement must contain at least one unfair clause;
- the judicial auction must not have ended with the assignment of the property.
If all these conditions are met, the debtor can proceed with the opposition to the real estate foreclosure. As a result of the new sentence of the Cassation, the procedures and times for foreclosure of houses change and the judge to whom the bank submits a request for an injunction must first ask the creditor to present the credit agreement.
Only afterwards can the competent judge of the property seizure procedure review the whole procedure and block the judicial auction if an effective violation of the European rules that protect the consumer emerges.
Therefore, to decide whether a house can actually be auctioned or reacquired by the debtor, the judge must first assess whether the injunction was issued on the basis of unfair terms contrary to consumer rights.