ITALY Law and Practice Contributed by: Marco Torsello, Federica Serrantoni, Lucia Pontremoli and Gregorio Baldoli, ArbLit
Enforcement Procedure Should the debtor fail to perform its obligations within the aforementioned term, the creditor is entitled to commence enforcement through a writ of attach - ment ( atto di pignoramento ), which is to be served to the debtor by the competent bailiff. Once the debtor receives service of such writ of attachment, the assets identified therein are seized and the debtor is deprived of the right to dispose of them (although the debtor may still be entitled to retain possession thereof). The content of the writ of attachment and the subse - quent procedure differ according to the type of assets seized. Enforcement over movable assets Enforcement over movable assets is executed by searching for assets either through the bailiff’s access to the debtor’s residence and other premises belong - ing to the latter (including for professional purposes) or through a search of the debtor’s person. In choosing the assets to seize, the bailiff should identify assets that are easier to sell (hence preferring cash, valuables and securities), up to a value equal to the amount of the claim increased by 50% (in order to cover interests and legal fees as well). The bailiff may request assistance from an expert to assess the value of the assets, with a view to issuing an attach - ment report. Assets are either transported to a public storage facility or left with the debtor; a custodian is appointed (usually other than the debtor, unless the creditor so agrees). Assets seized are then sold and the proceeds are placed to the satisfaction of creditors (and the costs of the enforcement proceedings). Enforcement over immovable assets In order to seize immovable assets, careful inspection of the Public Register of Immovable Property ( Con- servatoria dei Registri Immobiliari ) is required to spe - cifically identify the property and possible existence of mortgages, liens or third-party rights on the assets. Enforcement is then executed through service of the writ of attachment and its subsequent transcription in the aforementioned public register – following which,
the claim) – is subject to appeal (under Article 669-ter - decies of the CCP). In any case, the order does not acquire res judicata effect and may not be invoked as being final and binding in other proceedings. Finally, Italian law envisages additional measures that may be enforceable, such as the following. • Decisions rendered as a result of summary judg - ments (see Article 281-decies et seq of the CCP). • Interim measures (whether issued ex parte or after discussion in a hearing). • Orders for payment of sums or delivery of goods ( decreti ingiuntivi ), issued upon written evidence, which become final if not opposed in a timely man - ner by the party against whom the order is issued and may be declared provisionally enforceable either: (a) at the time of issuance, in cases referred to in Article 642 of the CCP (orders issued on the basis of a deed received by a notary (or certain other securities), existence of a risk of serious prejudice in the event of delay in enforcement, or existence of written recognition of the debt signed by the debtor); or (b) following the first hearing of the subsequent opposition proceedings that may be filed by the debtor, if such opposition is not supported by written or prima facie evidence. 2.2 Enforcement of Domestic Judgments In order to initiate enforcement, the creditor must obtain and serve on the debtor an enforcement title (ie, an enforceable decision of a court, or other spe - cific documents such as certain deeds received by a notary public, bills of exchange, or certain other secu - rities) granting a right that is certain, liquid and not subject to an unexpired term. Furthermore, the creditor must serve a writ of enforce - ment ( atto di precetto ) to the debtor, thereby formally requesting that the latter fulfil its obligations estab - lished by the enforcement title (to be identified in their exact amount) within a period of no longer than ten days and warning the debtor that failure to do so shall result in commencement of enforcement.
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