HOW TO RECOVER A CREDIT FROM YOUR ITALIAN DEBTOR
You provided a service, or you sold goods to an Italian company or privite citizen, but you have not been paid although the payment term has expired. Or maybe you just received a down payment and now your Italian debtor is not willing to pay you the rest. It can happen, just like in every other country in the world.
So know you are asking yourself: how do I recover my money? How can I find my Italian debtor? If I find him/her, what do I have to do to collect my money? Will I have to start a legal action? How much will it cost me to recover my credit? Do I have to hire a lawyer? Where can I find an Italian lawyer that can assist me? How do I know that if I start a legal action, I will get my money back? And so on.
If you, or your company, find yourself in this condition, we suggest asking for professional assistance from an Italian lawyer.
In fact, the first thing you should know is that in order to recover a credit in Italy you should seek the assistance of an Italian professional, either a lawyer or a professional agency authorized for debt collection. Acting by your self may not lead to any result and, on the contrary, it could make you waste a lot of time and money.
HOW TO PROCEED
After the payment term that you agreed upon with your debtor has expired, you will need to take action in order to try to recover your credit.
Generally, debt collection consists of two phases: 1) an initial extrajudicial phase, and 2) a possible second judicial phase.
As said above, we suggest contacting an Italian lawyer who can assist you throughout the entire procedure.
1) EXTRAJUDICIAL PHASE
When we talk about extrajudicial recovery we intend the activity, aimed at recovering a credit, which takes place outside the Court, such as written or telephone reminders. The purpose of this activity is to invite the debtor to pay spontaneously.
Generally, the lawyer writes a letter with which he/she formally invites the debtor to pay the sum of money due, informing the debtor that in case the payment is not made within a certain date, the creditor will proceed with a judicial action (in Court) which, therefore, entails an increase in expenses to be borne by the debtor.
In several cases, the debtor – having understood that the creditor is willing to start a legal action to recover the credit, and fearing that the due amount can increase exponentially due to interest, legal fees, etc. – once he/she receives a formal request from a lawyer, proposes to pay the entire or at least part of the debt.
In our opinion, generally, the best thing to do is to resolve the debt collection case in an extrajudicial phase, when possible. In this case, in fact, legal expenses will be lower for both the creditor and the debtor, and it will not be necessary to wait for the (often long) times of the Italian judicial system. Unfortunately, it is not always possible to collect the money during the extrajudicial phase. In fact, the debtor may think he/she does not have to pay, may not have enough money to pay back the creditor, may offer a sum that is considered too low by the creditor, may be hiding somewhere abroad, may have filed for bankruptcy, etc..
However, in the unfortunate case you are not able to resolve your debt collection case during the extrajudicial phase, the only possible solution to try to recover your credit will be to start a legal action before an Italian Court.
2) JUDICIAL PHASE
Judicial debt collection, on the other hand, takes place by addressing the competent judicial authority in order to obtain an order/judgment by which the judge orders the debtor to pay the due amount.
Generally, you start a legal action after the attempts to recover sums in a friendly manner have failed (Par.1 above). Nonetheless, there are some cases when it could be wiser to start the legal action without going through the extrajudicial phase. It could also happen that after you start a legal action, but before it is concluded, the debtor offers to pay the amount. If this happens, the case ends with a settlement agreement during the judicial phase, which, therefore, will not need to continue any longer.
In order to initiate a lawsuit, the creditor will need to bear some “court expenses” (stamps, taxes, etc.), in addition to the attorney’s fee. The amount of the expenses vary from the amount of your credit and the type of the action you intend to start.
Also for this reason, before starting a legal action, we suggest carrying out an investigation on your debtor’s assets. The investigation allows the creditor (his/her lawyer) to have a clearer picture of the debtor’s status and solvency.
Once you have knowledge of your debtor’s financial situation, should you and your lawyer think that there are the grounds to proceed, you can start a legal action before an Italian Court.
To summarize, it can be said that two legal proceedings are generally used for debt collection cases: a summary and an ordinary legal proceeding.
The first one is the injunction (decreto ingiuntivo), which consists of a court order issued by a judge with which the judge orders the debtor to pay a certain sum either immediately or within 40 days from the communication (notification) of the injunction, warning the debtor that in case he/she does not pay the creditor may proceed with a foreclosure on his assets (“esecuzione forzata” o “pignoramento”).
It is a fast and not so expensive summary proceeding, which means that it is structured in a more simple manner compared to an ordinary trial. You will start this kind of proceeding if you need a “title” that authorizes you to execute a foreclosure on the debtor’s assets. Should you already have a valid and enforceable “title”, you can start the foreclosure procedure immediately after notifying an act (atto di precetto) with which you inform the debtor that you have a “title” to proceed and that if he/she does not pay within 10 days you will start a foreclosure procedure.
2. WRIT OF SUMMONS
The second action is undertaken by means of a regular writ of summons. It is a more expensive, and complex proceeding which will inevitably last longer. In this case, you will ask the judge to assess your case (your right and your evidence) in more depth and issue a judgment in your favor, which you will notify to your debtor informing him/her that in case he/she does not pay, you will proceed with a foreclosure on his/her assets.
While in the first case – unless the debtor files an opposition to your injunction – the proceeding involves the creditor only (it is a summary proceeding), in the ordinary proceeding the parties will confront each other in front of the judge, explaining their reasons, presenting documents, participating at hearings, etc. After all phases are completed, the judge will issue his judgment. So, this is an ordinary trial.
If, in spite of the payment order/judgment, the debtor does not fulfill his/her obligation, the creditor can foreclose his assets in order to “satisfy” his credit.
ASK FOR ASSISTANCE WITH YOUR DEBT COLLECTION CASE FROM AN EXPERT ITALIAN LAWYER
Although it may seem the best solution, it is not always possible/necessary/advisable to start a summary proceeding. Therefore, since every single case is different, only an experienced Italian lawyer will know what kind of action you can/must start in your specific case.
You should consider that our Italian lawyers have knowledge of the Italian laws and procedures, can foresee what the debtor could do in order to avoid the payment, know where to look for the debtor’s assets and how to foreclose them, etc., besides the fact that they can provide full legal assistance in English. Moreover, considering that, as said above, in case the debtor does not pay you during the extrajudicial phase you will need to start a legal action with the assistance of a lawyer (an agency cannot act and represent you in front of a Court), and the same for a foreclosure proceeding, we suggest requesting the assistance of a lawyer from the beginning.
Don’t let your debtor spend your money! Ask an expert Italian lawyer to assist you in recovering your money!!