Beware the Risk of Credit "Duplication"
A Guide to Understanding the "Short Circuits" in Protection Mechanisms for Guarantors
In the realm of financial leasing and public guarantees (such as the SME Guarantee Fund – Fondo di Garanzia PMI), the intersection between recovery actions and asset relocation in the market can give rise to genuine "short circuits" in protection mechanisms for guarantors.
The Critical Question: What happens if the immovable property subject to a resolved leasing agreement is sold to third parties by the leasing company after the public Fund has already compensated the bank and initiated compulsory collection proceedings against the surety?
According to established jurisprudence and the fundamental principles of our legal system (including Article 1526 of the Italian Civil Code), the relocation on the market of the asset subject to a resolved financial leasing agreement must produce positive effects also for the user and their guarantors.
"The proceeds from the sale of the asset must be attributed to the reduction of the original overall debt."
This principle establishes a fundamental duty of attribution that protects co-obligors from unfair financial burdens.
The problem arises when the timelines of justice and collection do not align with those of asset sales:
The public Guarantee Fund compensates the leasing institution and subrogates into the credit, initiating compulsory collection proceedings (through tax collection notices and consequent attachments) against the surety for the full liquidated amount.
Following the issuance of the tax collection notice and the commencement of enforcement remedies, the leasing company sells the immovable property to third parties, cashing the proceeds.
If the proceeds from this sale are not promptly remitted to the public Fund and, consequently, the latter fails to recalculate the enforcement claim against the guarantor...
An Evident Profile is Configured:
In the presence of a subsequent event such as the sale of the asset, it is essential to act promptly through extra-judicial means (and, if necessary, judicial means):
Pursuant to Article 119 of the Consolidated Banking Act (T.U.B.) from the leasing company.
This document details the sale proceeds and ensures transparency.
Notify the parties involved to proceed with the immediate recalculation of the residual debt.
Request partial or total discharge of the tax collection role.
Obtain the consequent reduction or waiver of ongoing enforcement proceedings (such as third-party attachments).
Accounting transparency and coordination between financial intermediaries and managers of public funds are not options, but precise legal obligations aimed at protecting co-obligors.
Failure to comply with these obligations exposes all parties to significant legal and financial risks, including claims for unjust enrichment and illegitimate duplication of enforcement titles.
Navigate complex financial leasing disputes with professional guidance. Avvocato Carlo Carta provides expert analysis on public guarantees, enforcement proceedings, and creditor protection in Italy.