Pension Foreclosure And Current Account – What Credit Awaits Me?
On my bank account I am credited monthly (on the first day of every month) the pension from a former head of state which currently amounts to about 3 thousand and 243 euros, which represents for me the only source of income and with which I must cope with the essential needs of everyday life, in addition to other long-planned spending commitments (mortgage payments, car purchase …).
Now, having been sentenced in civil proceedings to 50 thousand euros for damages in favor of the counterparty and about 20 thousand euros for legal expenses, I ask to know by what criteria the monthly basis will be concretely determined and, consequently, what may be object of attachment and therefore of execution by the creditor, since the new legal discipline (DL 83/2015) has identified (upwards) the thresholds of impignorability (for minimal vital needs of the individual) of the pension credited to the current account.
With this question, in fact, I would like to know concretely within what limits and to what extent I could undergo an execution in the form of attachment to third parties (the bank where I opened the account), benefiting monthly from the aforementioned pension.
And finally, I ask you: will the determination of the attaching party be carried out by the proceeding creditor or by the judge?
And finally, as a result of the request for attachment to the third party, will my current account be blocked by the Bank or will it allow it to be used for the unpopeable basis?
Proceed with order, identifying the two types of executive action to which you, debtor defaulting, may be submitted: foreclosure of the current account or foreclosure of the pension.
In this case the third party will be the National Institute of Social Security (INPS), which, substantially, during the procedure of attachment and assignment, will be required to notify the court seized by the creditor, the exact amount of the amount paid monthly to the debtor subject to executive action, or € 3,243. Now, starting from January 2018, the maximum amount of the social allowance amounts to 453 euros. According to Article 545 of the Code of Civil Procedure, sums owed by anyone as a pension can not be attached for an amount corresponding to the maximum monthly social allowance, increased by half (vital minimum), while the excess part it is distrable within the limits of 20%. Since, therefore, the vital minimum currently amounting to € 779.5, the distraught part of his pension is 2.563.5 for a monthly portion of approximately € 513 (rounded up).
Foreclosure of the current account
The ordinary attachment of the current account, or the attachment of the current account for claims based on a final judgment, is regulated, among others, by article 546 of the Code of Civil Procedure: from the day on which it receives the deed of seizure of the current account, the bank with which the debtor subject to executive action has a current account is kept, with regard to things and sums deposited in current account and within the limits of the amount of credit requested to the debtor, increased by half, to the obligations that the law imposes on the custodian.
As mentioned, in the ordinary foreclosure of the current account, the bank is required to carry out its role as custodian of the amount of credit requested to the debtor, increased by half until the creditor proceeding with the sum established by the judge (which may include, in addition to the amount owed by the defaulting debtor, also the legal costs incurred by the creditor in the phase of forced expropriation of the current account balance).
Now, if on the debtor’s current account subject to executive action there is at least the amount corresponding to the sum specified increased by half, the bank freezes this availability by subtracting it from the balance, but making possible the operation of the current account (succeeding, thus, to fulfill the custody obligations that the law assigns to the attached third party). Transactions not yet accounted for (collection of checks issued, settlement of purchases made with credit or revolving credit cards), in the absence of adequate coverage (after the coercive reduction of the available balance), will not be successful, with potential negative consequences such as protests , reporting to the central risks and revocation of the possibility to issue checks.
With the judicial order of assignment to the creditor proceeding to the extent necessary to satisfy the credit and the expenses incurred, at the conclusion of the expropriation procedure in the ordinary procedure of attachment, the bank may make it available again in the debit current account, the sum not assigned by the judge with respect to the amount of the credit previously attributed to the debtor, increased by half frozen in his time.
If, on the other hand, the debtor’s current account subject to an executive action is not at least equal to the amount corresponding to the aforementioned sum increased by half, the bank is forced to freeze the current account, making it no longer usable, at least until the declaration from the third party for the amount of the current account balance referred to in Article 547 of the Code of Civil Procedure (not able to ensure coverage of the aforementioned credit increased by half) and the subsequent court order for assignment to the creditor proceeding of the sum withdrawn from current account balance. The transactions not yet accounted for (collection of checks issued, settlement of purchases made with credit or revolving credit cards), after the current account block, will not be successful, with potential negative consequences such as protests, reporting to the central risks and revocation of the possibility of issuing checks. Any accreditation provisions (even for salary or pension) will not be successful and will not be charged to the settlor.
In any case, pursuant to Article 545 of the Code of Civil Procedure, the sums owed as a pension, in the case of credit on a bank or postal account held by the debtor, may be attached, for the amount exceeding three times the social allowance, when the crediting takes place prior to the attachment: in this case, after the assignment to the proceeding creditor, the stocks available in current account must still be left, at the debtor’s availability, at least € 1,359 (three times the measure maximum social allowance).
Foreclosure of the current account and subsequent foreclosure of the pension
Unfortunately, the worst case scenario can not be ruled out, namely the seizure of the debtor’s current account, if the amount sufficient to cover the loan has not been allocated (a crystallized sum in a sentence burdened by the legal interest due for the delayed payment with respect to the enforceability of the sentence and legal fees incurred by the creditor during the attachment procedure).