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2008

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How to deal with a foreclosure foreclosure

been notified that your home will be auctioned to pay off your debts is not easy to deal with the news.

The first reaction one has is to deny. "It is not possible to be successful," "They can not do it," "should not happen to me." These reactions are certainly legitimate, but do not help ...

deny the incident can only distract you from finding the solution to your problem. The psychological state of uncertainty, where this kind of problems you drag, driving people away from reality the mind to throw in the state of fear.

Fear not, this feeling of helplessness can stop giving up the fear and begin to think with a cool head. The solution to your problem can be found only by analyzing all the facts of your situation without taking leave negative emotion of fear of losing everything.

First, that defeats the uncertainty is aware, finding relevant information. Start looking for the information, including online, is a way to take action and not remain helpless.

Then you have to force yourself because I know that the idea of \u200b\u200blosing your home is unsettling, but when it comes to foreclosure there are many possibilities: we must return to creditors that it is and you can only do this by selling your property.

not going to wait for auction: the times are very long, your debts increase and you risk not being able to pay all despite the sale of the property.

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WHAT '
E' means an act which begins the forcible expropriation of the following existence, and the notification of an executive and a precept
covered by the Code of Civil Procedure to 'art.491 and following (rules reformed by Law 80/2005 and 51/2006) and' practice in order that a judicial officer is on the defendant to refrain from any act intended to steal the credit guarantee items that are the subject of expropriation and the fruits it.
The order must also contain:
- the call to the debtor to make a declaration of domicile or residence-in-one municipalities in the district where the headquarters of the court competent for execution. Failing all notifications will be made at the Registry of that court;
- a warning that the debtor can 'request a change to property or claims seized a sum of money equal to the amount owed to creditors, including interest and costs . This' special instance and the Court by depositing a sum not less than one fifth of the credit.

FORM
of the attachment by the bailiff shall read a report which shows, as well as the order of above, the description of all things foreclosed, their state (through photographic representation or audio) and the approximate determination of the realizable value determined with the assistance, if considered necessary or required by the lender, chosen by an expert estimator 'bailiff. If it concerns movables


The bailiff fitted Enforcement Foreclosure looking things in the house of the debtor and other places belonging to him, and also on the person. The bailiff can 'have the assistance of the police.
can not 'relate to things not be attached and should preferably be carried out on the things that the judicial officer considers more' easy and prompt liquidation to a maximum realizable value (calculated by increasing the half 'the amount of credit precepts). In any case, should be preferred, in order: the cash, valuables, debt securities and any property that appears to secure implementation.
can not 'run on public holidays and outside the hours designated by law for service of documents (from 7 to 21).
money, valuable securities and are seized by the bailiff delivered to the Registrar of the appropriate court, while other goods are transported to a place of public deposit, or assigned to a specific guardian (who can not 'be the creditor or the liable if the other party does not give its consent).
Important Note: The attachment can
'also cover movables (furniture, various objects) present in the property not owned' by the debtor. And 'that court has sufficient residence to assume the force of law-in-the goods stored in the building are of his property', unless the contrary (or its actual owner).

Seizure ESTATE
is performed by notifying the debtor in the land register and subsequent transcription of a document containing the exact description of the property and order the debtor to refrain from acts devices. Together with the property can be seized even the furniture in it, if it becomes apparent expropriation should take place together. A custody is normally appointed the debtor, but at the request of a creditor, the court may 'also appoint a different person. This' is, however, if the debtor does not occupy the property.

garnishee
covers claims of the debtor to third parties (such as rents, wages-say-in limits on the amounts and current account) or property of the debtor that are held by third parties. You run through a notification addressed to the debtor and the third, and contain more than the injunction not to take any action device about the goods and credits subject to seizure, an indication of the credit for which you proceed, and the enforcement of the precept, indication also general things or amounts due and not notice the other party to dispose of it without court order.
The Act also contains an invitation to appear before the court to declare "what things or what amounts" and the third 'or the debtor is in possession and when they must make the payment or delivery.
interesting to note that this provision does not apply to foreclosures "tax collection" (see 'below), for which e' must be anticipated that the third party obligor makes payments directly to the dealer.

EFFECTS
The attachment of the attachment, in various species, has the effect of making them unenforceable in the creditor and other creditors involved in the execution, gli atti di disposizione compiuti sui beni pignorati (come per esempio la vendita e le cessioni dei crediti).
Per gli immobili vale la regola dell'anteriorita' della trascrizione; per i beni mobili il principio della tutela del terzo acquirente che abbia acquistato il possesso in buona fede. Si vedano, in proposito, gli articoli 2912 e segg. del codice civile.

COSA SI INTENDE PER IMPIGNORABILITA'
Riguarda il pignoramento mobiliare presso il debitore, e riguarda cose che per il loro prevalente valore morale (es. oggetti di culto, fede nuziale), o per stretta necessita' nella vita domestica (es. frigorifero, lavatrice), hanno indotto il legislatore a privilegiare i bisogni di quest'ultimo rispetto al principio per cui tutti i beni dovrebbero fungere da garanzia dei creditori ed essere quindi espropriabili.
Sono inoltre sottratti al pignoramento i crediti alimentari (gli alimenti versati dal coniuge separato, tranne per cause di alimenti e comunque con autorizzazione del presidente del tribunale o di un giudice delegato e per la parte dallo determinata dallo stesso), i crediti aventi per oggetto sussidi di grazia, di sostentamento, di maternita' e di malattia.

Sono parzialmente impignorabili, invece,
tutti i beni indispensabili per l'esercizio della professione o del mestiere esercitato dal debitore. Essi possono essere pignorati nei limiti di un quinto nei casi in cui il presumibile valore degli altri beni non appare sufficiente per la soddisfazione del credito. The provision does not apply if the measure concerns a society '.
Special provisions also relate to the things that the owner of land held for the service and the cultivation of that as well as' the fruits not yet collected or separated from the ground.
More details can be found on the art.514 et seq. as well as' Article .545 of the Code of Civil Procedure.

PIGNORABILITA 'SALARY
The Budget 2005 (Law 311/04) has definitively treated the provisions relating to pignorabilita' salaries of private and public ones. For the latter note that already 'time' was abolished the rule of absolute impignorabilita 'following several rulings by the Constitutional Court (Judgments and n.89/1987 n.878/1988).

basically applies to all salaries (as well as 'bonuses, pensions, allowances', grants, etc.) the general rule that they not be attached and seizure unless these exceptions:
1) if the debt owed covers food by law, and 'expected pignorabilita' salaries up to a third of the net of deductions;
2) if the debt 'to the state or other agencies or businesses from which the debtor is, and the relationship of employment, and 'expected pignorabilita' salaries up to a fifth of the net of deductions;
3) if the debt charges due regard to the State, provinces or municipalities or by the employee wage and 'planned pignorabilita the 'up to a fifth of the salaries of the same net of withholding tax. If

compete simultaneously cases 2 and 3 the attachment can not 'strike a portion of the fifth highest total already' mentioned, but also helps the case if an attachment can not 'strike a greater share of the goal' salaries net of considered.
E 'to be specified, as required by the Code of Civil Procedure, that the share subject to seizure and' decided by the President of the Court or a judge delegated by him.

Source: article 1 and 2 dpr180/50 with amendments to the law 311/04 article 1 paragraph 137 and Art.545 cpc et seq.

IF seized assets is insufficient, or occur
too long time for the clearance of the same, the bailiff can 'officially ask the debtor about the existence of other assets available for seizure. The debt-to-make false statements when interviewed, or do not cooperate, or does not respond within 15 days, are punishable as provided by .388 of the Criminal Code (up to one year imprisonment and a fine of up to 309 euro). Additionally
the bailiff can ', always with a view of the above, carry out a survey to seize property with direct access to their tax or other public databases. If the debtor and 'a trader, also, the officer will be able to' see the accounts by consulting a professional.
Everything 'at the request of the creditor, with special application that can' ask the integration of the seizure even if the court deems inappropriate estimates made by the bailiff. To this end, the court has right 'to appoint an expert estimator.

TO AVOID foreclosure
the debtor can 'pay in the hands of the bailiff of the amount due to increased costs because' it is delivered to the creditor. To prevent the seizure of things, he can 'pay the amount due including costs bailiff' cause remains lodged as an object of the attachment instead of things themselves. In this case, the amount had to be increased two-tenths.

GOODS MAY BE FREED
from attachment with a specific order of the court when the debtor has requested a change to property or claims seized a sum of money equal to the amount due including interest, costs and implementation costs. The debtor must, in this regard, deposit a specific instance-that-conversion at the Court, together with a sum not less than one fifth of the amount due. The judge decides the amount of the sum can be replaced and 'establish, where things are made up of foreclosed real estate and using it justified, that the latter with monthly installments within a maximum period of eighteen months. In this case, the amount will be 'increased, of course, the interest rate (conventional or legal).
If the debtor, in all cases, omit or delay payment of more than 15 days from the expiry of the sums paid are part of the goods seized and the court at the request of the creditor, have without delay the sale of the same.
Goods are free from seizure by the order in which the court accepts the substitution. Those properties are released by paying the entire amount.


the seizure loses effectiveness when they are ninety days without a requested assignment or sale. In this case, where the measure is aimed to immovable property, the court shall issue an order la quale dispone che siano cancellate le trascrizioni precedentemente fatte sui registri immobiliari.

IL PIGNORAMENTO "ESATTORIALE"
Se non si paga una cartella esattoriale entro 60 giorni dalla sua notifica l'agente della riscossione puo' mettere in atto le procedure esecutive che ritiene piu' opportune al fine di riscuotere il dovuto. Si va dal fermo amministrativo dell'auto all'iscrizione di ipoteca sulla casa, fino ad arrivare all'espropriazione forzata (pignoramento e vendita coatta) dei beni immobili e mobili del debitore e dei suoi coobbligati.

Le regole sono quelle generiche previste dal codice di procedura civile gia' viste in questa scheda, a cui vanno aggiunge quelle piu' specifiche contenute negli articoli dal 49 al 76 del d.p.r.602/73.
Sono quindi pignorabili i beni mobili presso il debitore, le cose del debitore presso terzi, i crediti del debitore presso terzi (comprendenti, oltre agli stipendi nel limite gia' detto in questa scheda, i fitti e le pigioni dovute da terzi, le somme disponibili sul conto corrente, etc.), beni immobili e diritti reali immobiliari (usufrutto, nuda proprieta'), e rimangono valide le regole relative all'impignorabilita'.
Cambiano un po', semmai, le procedure.

Il pignoramento, in questo caso
- non puo' aver luogo prima che siano decorsi 60 giorni dalla notifica della cartella esattoriale;
- puo' essere messo in atto -sui beni immobili- solo per debiti complessivi superiori to 8,000 €.
- if the amounts entered in the register are less than 5% of the value of the collection agent must first registration of a mortgage and can 'proceed with foreclosure after only six months, of course, if the debt remains unpaid.
- in case the attachment is put in place one year after notification of the tax notice must be notification of a notice containing the notice to pay within 5 days. This notice loses its effectiveness if the attachment does not follow within 180 days of its notification.
- becomes ineffective if they spend 120 days of its execution without having done the first spell (forced sale by auction).

Important Note: With regard to the attachment
escrow procedure "tax collection" has some significant differences from the generic, already 'so called, governed by the Code of Civil Procedure. The law provides that in such cases, the third defendant, upon notification of an act by which it is made aware of the proceedings is invited to pay directly to the dealer due to the numbers registered as debtor, within 15 days of notification of attachment, to the extent of credit for which you shall (a dpr602/73 art.72).
can prepare and serve the document, and that even employees of the collection agent not licensed in the function of "collecting officer" (novelty 'introduced by the 2008 Budget art.1 Sections 141/142).
also interesting to observe that the first point (possibility 'for the dealer to the third oridnare debtor to pay the sums due to the person listed on the rolls) and' spoke to the Constitutional Court (Order 393/2008) said that the regulator 'constitutional the procedure and the absence of a significant disparity 'between different types of debtors.

card connected: the recovery notice:
http://www.aduc.it/dyn/sosonline/schedapratica/sche_mostra.php?Scheda=210370

HOW TO DENY
After initiating foreclosure proceedings relating to disputes the creditor's right to proceed, the breach of procedure and piignorabilita 'goods may be brought to court enforcement. This' by a lawyer and pursuant to art. 615 of the Code of Civil Procedure.

In the case of procedure "tax collection" you can 'act as above only in case of disputes concerning the pignorabilita' property.

Matter 'very complex, and it' so good to contact a lawyer at an early stage evaluation.

Akiho Yoshizawa Outflow

CASE FORENSIC pensions for a few but not for all?

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