Fund assets to save my home from creditors – Is it possible?
I am worried because of the numerous debts accumulated with suppliers and financial due to a bad job.
So, my wife and I were thinking of including our property home (the only thing we own) in a property fund.
I would like to know, given that the expropriations have not started and has not yet been registered as a mortgage, how many chances do I have to save the property from creditors?
First of all, the recent law 83/2015, grants the creditor the power to seize the immovable property, or the registered furniture (cars, motorcycles, etc.) of the debtor, although the latter has previously given them to third parties or has established a constraint of unavailability (for example, assets).
Practically, the creditor can equally assert his attachment, even after the assignment of the asset, without even having to first obtain a sentence that renders the act ineffective (so-called cause of ordinary revocation).
This means, in practice, that all the acts imposed by the debtor as donations, assets or trusts are wavering for a year from their completion, since, within this period, the creditor can always intervene and expropriate them.
However, in order for the creditor to proceed with the attachment of the debtor’s assets on which there has been an unavailability constraint, all the following requirements are required:
- the deed of the debtor must be:
- prejudicial to the creditor: in other words, the debtor must not possess other assets on which the creditor may, by seizing them, recover what is due to him;
- made free of charge after the credit right has arisen.
- the creditor must:
- be provided with an enforceable title (a sentence, a non-opposing injunction, a check, a bill, a notarial deed such as a mortgage, a credit attestation from the SIAE, a tax notice, an assessment by the Revenue Agency, etc.)
- to have registered the deed of attachment within one year from the transcription of the deed of the debtor.
This rule also applies to the creditor who, within one year from the transcription of the injurious act, intervenes in the execution promoted by another creditor.
Once this term has expired, the creditor must first act with the revocation.
In the case of debts prior to the establishment of the fund, in fact, the creditor could perform the bankruptcy revocatory action (within two years of setting up the fund) or the ordinary revocatory action (within five years, assuming the conditions), claiming that the fund was fraudulently created to steal assets from forced execution.
The fund, therefore, can not be used to avoid paying debts already contracted.
Finally, it must be said that the assets included in an asset fund are not applicable to the exclusive purpose when the obligations have been contracted for purposes unrelated to the family’s assets.
Until now, the obligations arising from the business of one of the two spouses were not intended as expenses for the maintenance and economic development of the family and, therefore, the related creditors could not be satisfied on the assets.
Recently, however, the jurisprudence of legitimacy has provided a more extensive interpretation of the notion, including in those needs also those requirements aimed at the full maintenance and harmonious development of the family, as well as the strengthening of its working capacity, leaving only the needs excluded. voluptuous or characterized by purely speculative intent.
Therefore to date, for the poor people like us, the establishment of a patrimonial fund does not serve practically anything.
The speculative intent, in fact, as a poor investment, are difficult to verify, given that the Italians are already struggling to get to the end of the month between bills and other expenses necessary for survival.