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Opposition to the decree of the third-party mortgage provider

Civil Supreme Court, Section VI, 13 March 2020, no. 7249. Pres. Frasca. Est. Porreca

date: 10.06.2020
Area: Litigation and Arbitration

According to the ruling under examination, if a third party takes out a mortgage on its own assets as security for a debt owed by another party, the creditor will have the right to demand its expropriation only if the debtor is in default. Consequently, the creditor will have the burden of jointly notifying the third party mortgage provider and the principal debtor of the enforceable title and the decree, specifying which of the third party’s assets it intends to subject to enforcement if the debtor’s default persists. In such cases, therefore, any opposition to the decree proposed by the third party to ascertain the absence of the obligation to pay the sum indicated in the decree must be rejected due to lack of interest if, from its interpretation, it can be inferred that this does not presuppose any obligation of the third party to satisfy the debt, nor the creditor’s intention to proceed with enforcement against it even on assets other than those mortgaged and indicated in the deed.

Opposition to the decree of the third-party mortgage provider

Civil Supreme Court, Section VI, 13 March 2020, no. 7249. Pres. Frasca. Est. Porreca

date: 10.06.2020
Area: Litigation and Arbitration

According to the ruling under examination, if a third party takes out a mortgage on its own assets as security for a debt owed by another party, the creditor will have the right to demand its expropriation only if the debtor is in default. Consequently, the creditor will have the burden of jointly notifying the third party mortgage provider and the principal debtor of the enforceable title and the decree, specifying which of the third party’s assets it intends to subject to enforcement if the debtor’s default persists. In such cases, therefore, any opposition to the decree proposed by the third party to ascertain the absence of the obligation to pay the sum indicated in the decree must be rejected due to lack of interest if, from its interpretation, it can be inferred that this does not presuppose any obligation of the third party to satisfy the debt, nor the creditor’s intention to proceed with enforcement against it even on assets other than those mortgaged and indicated in the deed.