Court of Pescara order of December 21, 2006 - Judge Dr. G. Falco COURT ORDER OF PESCARA
RGN 5494/2006 and 5495/2006 (meeting)
Judge,
a dissolution of the proviso in the hearing, 21.12.2006;
examination of the originating application (together for connection del14.12.2006 hearing), the deductions defensive by the respondent and the results obtained in trial proceedings;
Given that the first applicants, with applications art. 700 cpc ante causam (lodged on 24.11.2006) under this procedure:
° have concluded that it had suffered by the Bank, during the month of November 2006 - "a sign of distress" Risks to the Central Bank of Italy with regard to their alleged debit balance resulting from the loan agreements and trust in c / c complaint with an ordinary trial currently pending between them and the said Bank before this Court.
° have denounced the illegality of that report because of debt relating to a position in reality (they say) does not exist, because it arose out of banking relationships, such as those in question-with, as they have already denounced in that ordinary trial, negotiating with multiple disability and consequent improper allocation of costs.
° have then relied on in a matter of urgency (and ante causam) suspension of illegal reporting, foretelling the future establishment of a substantive proceedings against the defendant to establish the illegality of the alert and the resulting responsibility of the reporting, and order of the latter to compensation for damages (see application).
Observed in particular, that in that ordinary trial on the merits (in this case pending before the Dr. Romandini from a date before the filing of precautionary actions in question):
· The plaintiffs (appellants herein) have argued-as interest here-the partial disability of both the contracts of credit in c / cn * e * (for alleged invalidity of the covenants and charges relating all'anatocismo, the overdraft charges, interest ultralegali, currencies, and for its alleged usurarietà "costs") and the financing contracts of 31.3.2006 (for alleged vagueness of ' Item art. cc and 1346 for alleged unlawful rate of capitalization of interest through the provision of mutual negotiation of debenza default interest on the entire repayment, including principal and interest payments) as well as being contrary to good faith for refusal to Bank to accept their proposal for the sale of funds placed as collateral for these loans, the plaintiffs have therefore asked-based on the facts above-the sentence of the Bank on the one hand to pay the debt by requiring that-purification by negative balances of these contracts cost denounced illegal and according to their perspective, would be to their credit, by ' other compensation for damage to another's conduct contrary to good faith (see the quotation, 18.5.2006).
· The defendant (herein resistant) - in an appearance-ha controdedotto, as there are interested, the unfounded allegations of bad accounting and negotiations, the legality of all the agreements as alleged by the relationship bank's counterparty and their conduct negotiation, it then requested a counterclaim for costs and the plaintiffs to pay the amounts due to the customer arising from these banking relationships (see the response, 25.10.2006).
Noting that the plea of \u200b\u200binadmissibility of questions precautionary ante causam ex art. 700 cpc there raised by the respondent (and the latter on the grounds that the slope between the same parties before the Tribunal of that ordinary trial-which is inherent to the same banking relationships which have resulted in the reporting of suffering to the Central Bank's Risk of Italy of which there are urgent calls for the suspension-there should necessarily be "welcome" in the opinion of the respondent- precisely "in the course of proceedings" pursuant to Art. 669 c-CCP also instances of this precautionary procedure) is unfounded.
Considering this issue in law and in summary:
· The emergency measures are characterized, as is well known and generally (unless the measures called. "Totally forerunners" in Art News. 669 g paragraph VI cpc ) - from temporary and instrumental, in that they are aimed at preventing future decision of a judge may be affected in the time required for obtaining it (Cass. Sez. 3, Decision No. 3473 of 09/04/1999; Cass. Sec. L, Decision No. 15986, 20/12/2000; Cass. Sec. 1, Decision No. 6785 of 24.05.2000).
· Thus they are destined to lose all force and effect as a result of the decision rendered in the subsequent proceedings on the merits which are absorbed and inoperative, resulting in depletion of the protective function that characterizes them (Cass. Sez. 2, Judgement No. 4964 of 11/03/2004).
¨ ne follows that one "who has reason to believe that during the time required to enforce its rights in the ordinary way, this is threatened by an imminent and irreparable injury, may apply to court with the urgent measures appearing under the circumstances, more suitable to ensure the temporary effects of the decision on the merits "(see art. 700 CCP).
· It is known that "before the main action, the interlocutory application is proposed to the court hearing the matter" (see art. 669 ter CCP).
· It is also known that "when there is a pending case on the merits, the interlocutory application must be submitted to the court of the same" (see art. 669 c CCP).
• In any case, that he should speak of a pending case on the merits, and therefore the responsibility of the court in which the interim measure or protective measures pursuant to Art. CPC 700 was proposed, it is that there is a relationship between such an inherent current demand and the dispute ongoing in the sense that this dispute must include in its object detection includes the right to protection in tents, on a provisional measure the art. 700 cpc (Cass. Sez. 3, Decision No. 9740 of 1994, Cass. No 2339/1987).
Noting that in this case the mere comparison (the obvious difference) of the object in the two proceedings to reveal the unfounded except in the rite in question and summary
° the request for interim suspension of the unlawful message is urgent, in this case, objectively (as well as by the applicants, specifically) instrumental to the future establishment of an ordinary trial concerning the investigation (to full knowledge) of the illegality of the alert and the resulting responsibility for damages of the reporting.
· The acceptance as a precautionary measure advocated the suspension of the alert instance is therefore instrumental to the protection of the appellants to prevent the continuation of the unlawful warning to any substantive decision-predicted the outcome of future proceedings on the merits- ensure that they are unlawful in the future.
· This interlocutory application has not, however, no relationship of instrumentality with those (and counterclaims) on the subject of the process is already pending, which (by reason of the causes and petita petendi paid therein) sfocierà in (different) final decision of the wrongfulness or otherwise of the contracts and the consequent determination of the property relationships of give and take between the parties, then without any warning regarding the ruling at issue there (and also, as said, occurred in that trial) with respect to which the interim measure only there could have requested the instrumental nature and anticipatory.
therefore, may not in any way identify with the ordinary proceedings still pending before this Court in that regard there's been revealed by the applicants and which (only) the protective order relied on art. CCP 700 would actually be anticipatory.
· The fact that in both cases, debating the legality or otherwise of the bank contracts between the parties, but in order to establish claims court is completely different from each other - makes the same (simply) captivated by a simple connection, what could in case of future contemporary slope, a legitimate meeting.
Passing this examination to the point "on supervision", it is considered that there was, for the reasons you say, the conditions of a prima facie case and the danger in delay for the acceptance of the interlocutory application explained only reporting suffering on the credit lines in current accounts nn.316 and 314 best shown in actions.
must recognize the hand-unfounded for the reasons you say, the alleged pre-trial report to the reporting of pain on two loans No.107-603-6085526 and No. 107.601.6085527
Given first-in relation to the matter in question-that:
the ART. 53, paragraph I, Lett. b) of Legislative Decree no. No 385/1993 (Banking Act) provides that the Bank of Italy, in accordance with the resolutions of the ICRC, giving off the general provisions relating to the limitation of risk in its various forms. Articles. 67, paragraph I, Lett. b) and 107, paragraph II, Lett. b) to reproduce the same rule respectively TUB context of consolidated supervision, each, and with reference to intermediaries entered in the special, the other.
• The credit risk is the risk of changes in value (unexpected) financial assets due to insolvency of the debtor, is reliable component of the "systemic risk" (market risk, credit risk, operational risk, other risks ) in which intermediaries operate by definition. As such it is certainly falls into the "risk" mentioned in Articles. 53, 67 and 107, TUB, and therefore subject to possible intervention by the Bank of Italy.
• The ICRC, with a resolution dated March 29, 1994, taken pursuant to those Articles. 53, 67 and 107, TUB, governs the service of centralization of credit risks managed by the Bank of Italy, by laying down the general principles of matter. The above rules shall apply to licensed banks in Italy to credit, financial intermediaries in art. TUB 106, which are part of a group chartered bank, or are enrolled in the special Article. 107, TUB.
the ART. TUB of 51 places on the banks' obligation to submit periodic reports to the Supervisory Body and any other information or document requested.
• A later decision Bank of Italy of 10 August 1995 has identified the financial companies with mandatory participation in the service of centralization of risk in those financial intermediaries art. 106, TUB, enrolled in and / or special list of Articles. 64 and 107, TUB, engaged exclusively or primarily in the business of financing in any form, as defined in article. 2 of Decree of Minister of Treasury on 6 July 1994.
o At the end of increasing the stability of credit and financial system as a whole, the ICRC, with resolution of 3 May 1999, found the opportunity to get to know the information on contracts awarded in amounts below the detection threshold of the central risks.
? Following complete the regulatory framework governing the operation of the Central Risk contribute instructions for intermediaries credit taken by the Bank of Italy 14 November 2001, constituting the 8th update of Circular 139, 11 February 1991. In addition, from January 2005, entered into force on 9 update, adopted June 22, 2004, subject to certain provisions relating to the recognition of the status of the customer and information service that periodically came into force in January 2006.
· For now, therefore, this system is governed by laws and regulations issued by the Interministerial Committee for Credit and Savings and the Bank of Italy (see most recently Cass. Sec. 1, Decision No. 19894 of 13/10/2005).
· The Central Credit in question, so disciplined, is, in short, "an information system on debt of customers of banks and financial intermediaries supervised by the Bank of Italy" (see quote Article 2. [ Objectives of the Central Credit] of the Circular No. 139/91 of the Bank of Italy and subsequent updates).
· This is particularly an information system that centralizes information on credit lines granted by each party to individual clients (natural persons and legal entities) for the subsequent return to intermediaries same overall indebtedness of their customers to the system (so-called "global risk position"). The Bank of Italy, through the Central Credit, gives brokers a reporting information useful, though not exhaustive, the assessment of the creditworthiness of customers and, in general, for the management of credit risk. The aim is to help improve the quality of assets of the intermediaries involved and, ultimately, to increase the stability of credit and financial system "(see Article 2. [The purpose of the centralized risk] of the Circular Bank of Italy n. 238/2001 and subsequent amendments).
· The brokers report monthly to the Bank of Italy's credit facilities granted to each customer individually and Joint account with others. In addition to the disputes, the Central Credit Register records the relationships between multiple liability of the companies surveyed and the shareholders have unlimited joint and several obligations assumed by the companies themselves to the party.
· The report to the Central Credit is due where, to date, the customer enjoys credits for cash or signing a total of greater than or equal to 75,000.00 euros, has issued guarantees to third parties or real for the same amount, has an exposure in derivatives equal to or greater than Euro 75,000.00, or has outstanding, always in an amount equal to or greater than € 75,000.00, some of the transactions recorded in a special information section of the prospectus issued by the Bank of Italy. The position of the client suffering a loss and the steps on bad debts should be reported to the Central Credit, regardless of amount. The signal is no longer payable from the month during which the claim fell below those limits census or the relationship was terminated. In any case, the disappearance of the reporting obligation does not entail the cancellation of reports on previous surveys (see art. 6.1 [Conditions to signal a person to the Central Credit] of the Bank of Italy Circular No 238/2001 and subsequent amendments).
· The reporting of a client is due to the Central Risk-then-when the first credit report is within the limits defined by the census instructions of the Bank of Italy. Among the reports due, most do not have discretion to intermediaries, as it is the same rule as-seen-that determines the amount above which the registration must still be made, the recording of bad debts, however, implies a complex assessment and to some extent discretionary brokers.
· Although the rule on the limits of census provides generally that the report is still due when the customer's position is in pain, art. 1.5, Section 2, Chapter II of the Instructions of the Bank of Italy, entitled "suffering", states: "In the census category of suffering can be traced back to the whole body exposure to persons in a state of insolvency, even if not judicially determined , or in situations substantially similar, regardless of any estimated losses made by the company. Apart, therefore, the existence of any guarantees (real or personal) in defense of claims. Excluded positions for which the situation of anomaly is due to country risk profiles related. The recording of a suffering implies an assessment by the intermediary of the overall financial situation of the client and can not automatically lead to a mere delay in the payment of that debt. "
· The Central Credit, also, "points out qualitative information on the debt situation of a client when there is a change of state (status). In particular, it detects the passage of non-performing loans, restructuring of credit, as well as the adjustment of positions previously reported as doubtful or subject to restructuring " (See art. 5 [Recognition of the status score] Circular No 139/91 of the Bank of Italy and subsequent updates).
· The subject holders of risk positions, following signals are counted by the Central Risk in a registry file and uniquely identified by assigning a CR code used for the exchange of information related to them.
• The Central Credit Information System therefore allows lenders to know to be indicative of the insolvency of the borrowers, such as revocation of credit and issuance of injunctions (as recently Cass. Sec. 1, Judgement No. 19894 of 13/10/2005).
· The direct consequence of reporting to the Central Risk is the withdrawal of credit lines from other banks and lack of access to the credit system in general.
· From the foregoing it is apparent that the system of the Central Risk is based on close collaboration between dealers and the Bank of Italy, for which there are information flows coming from and towards each other, and vice versa. E ', the system must work properly and that the information in the record showing correct and complete, especially in view of the negative consequences that could result in an alert Risks in the Central part of an individual erroneously surveyed. The information recorded in those archives, in fact, may qualify under Article. 17, Leg. 196/2003 (TUP for short) as a data cd. "Semi-sensitive", ie data other than sensitive and judicial treatment of which has specific risks to the rights and fundamental freedoms and the dignity of the person concerned.
· The intermediaries are required to check the reports submitted risk (monthly) to the Bank of Italy, particularly with regard to demographic information, and to correct their own initiative reports incorrect or incomplete. Are obliged to verify that all communications received by the Central Risk. The audit should not be limited to the coding phase, but also applies to other communications and the periodic return flows. In the absence of adjustments by the reporting entities, the data recorded in the archives of the Central Hazards are implicitly confirmed (see art. 5 [Liability of intermediaries] Circular No 139/91 of the Bank of Italy and subsequent updates ). Hence, "the proper functioning of the Central Credit is based on a sense of responsibility and the spirit of cooperation of the intermediaries involved" (see art. 5 last mentioned), to whose "responsibility is a matter for the assessment of the preconditions for access to information (see art. 9 of the Circular in question).
· An erroneous reporting bad debts, for example, severely damaging the reputation and dignity of the person concerned, adversely affects social and professional purposes, undermines the ability of the customer access to bank credit in addition to the revocation of the previously granted, resulting in injury "law firm" (Court of Palermo, November 4, 2002; Trib Brindisi, July 20, 1999).
o At this regard, much has been discussed around the concept of "insolvency" as a prerequisite for the recording of bad debts.
• A case-law makes reporting to the Central Risk of suffering a position on the existence, in the hands of the person indicated, a state of insolvency as provided by art. 5 Insolvency Act (Court of Alexandria, 20 October 2000; Trib Palermo, November 4, 2002, Naples Court order of 22.10.2002).
· Another case, however, mean that the concept of insolvency in art. 5 Insolvency Act can be a useful benchmark which to anchor the proceedings of the institute reporting, given the diversity ratio of the two disciplines. In one case (the Bankruptcy Law), in fact, is to identify the moment when Convenga proceed with the execution rather than individual, collective protection of the creditors of a particular company and the compulsory replacement of an entrepreneur who, on the basis of a ' analysis of global and dynamic perspective, was no longer able to ensure efficient and profitable production of the body, in the case, however, the question is whether a given credit position (headed by a bank or other financial intermediary, in relation to a person not necessarily contractor) should be reported to the Central Risk and possibly in the category suffering: in practice, should be considered whether such a report made in the best interests of the intermediaries involved in the service of centralization of credit risks, to make available to each other an information tool that can improve their ability to assess and monitor the customer .
· The aim is to prevent consumers through multiple credit lines, can receive extensions of credit from the banking system disproportionate to their equity.
• In any case, given the role of advertising in the interests of the credit market, the verdict that justifies the alert can not overrule the chief purpose and can not do without having to investigate a condition of economic and financial difficulties of the customer to whom the "suffering" may be linked (Palermo Court, Judgement of 04.11.2002; Trib Foggia, December 19, 2003).
· The institution must perform the creditor considers when reporting such difficulties, without having to perform a test to verify that the conditions for the declaration of bankruptcy. The above report must therefore be made even if the debtor does not pay in a state of decoction (Court of Rome, March 6, 2001). Otherwise be frustrated with the usefulness of centralization of service risks as other intermediaries, in particular those that have granted credit facilities to whom the report, it would be unable to take action in time for its protective position, now irreversibly affected by the near bankruptcy of the debtor. The minimum requirement of notification must therefore be identified in a state of insolvency of lesser intensity, but that is objectively subsistent, and that a prognosis of the bank, presenting himself as not temporary, the uncertain developments, but not necessarily irreversible as has been said, perhaps a state of insolvency normatively nearest art. 187 l. fall. not art. 5.
· The position reporting bad debts, demands, however, that the subject is in a state of persistent instability and financial position likely to impede the recovery of credit from the intermediary. Must therefore distinguish the situation that the recording of legitimate debts, found in an inability to recover their claims because the subject is given in serious and non-transitory economic difficulties, insolvent or in substantially similar situations, from cd positions. of problem loans, or temporary economic hardships to be overcome in a reasonable period of time without being envisaged as a probable legal action to recover (Court of Catania, 2 April 2003).
· E 'and then some, according to the instructions of the Bank of Italy, signaling that the suffering can not derive automatically from the non-debtor, why can not arise from mere delay reporting (Court Alexandria, ord. 20.10 .2000, in banks, stock exchanges, tit. cred. 2001, II, 571).
· Moreover, the Manual for the compilation of the array of accounts, issued by the Bank of Italy Circular No 49 del8.2.1989 and subsequent updates (the last of the 15 th 31.7.2002) in Sect. III, Item 2367 "doubtful loans" expressly provides: "It must be brought into this item, the entire exposure (cash loans, bonds, certificates of deposit and credit commitments) against persons in a temporary situation of objective difficulty, which is solvable in a reasonable period of time [...] ".
· Thus, as stipulated by law, must be regarded as illegitimate the alert based on a temporary economic hardship of the customer who has offered the institute to promptly settle their accounts through the deferred payment in installments proportionate to the size of the debt (Trib Cagliari, October 25, 2000).
· Similarly, it can not be considered lawful (and clarification assume central importance, as we shall see, in this case) a report of a contested claim (so-called "credit dispute") where the dispute has the character of the not manifestly unfounded (think of common questions often debated between banks and customers about dell'anatocismo legitimacy based on the regulatory uses art. NUB 7 for contracts prior to the reform of Article. TUB 120, or to questions of legality or not art. 1284 cc interests ultralegali "use the streets" etc. and about therefore, correct the error counts), and when such a challenge is the basis for the refusal of the client (due to the so legally. "self-defense" in art. 1460 cc) to fulfill the financial obligation subject of a report (see paragraph on Trib Cagliari, ord. 28.11.1995, in banks, stock exchanges and tit. Cred, 1997, II, 357, which is the case, "a based claims against the client in order to claim the bank, using it as a means of reporting illegal pressure, for example, turned to a more rapidly and at more "like" the dispute ").
· While it is true that under the instructions of the Bank of Italy for financial intermediaries in the implementation of the resolution adopted ICRC, 29.3.1994 and Circular of the Bank of Italy No 139/91 those intermediaries are required to report positions "at risk", the same, but must make an overall assessment on the economic and financial conditions of the customer and can not give prominence to the mere delay in the payment of a debt, a source responsibility of reporting false or made with instrumental aims, that is improperly using the school in order to exert "pressure" on the client that remains of the simple representations as to the existence and amount of credit by refusing to meet. Where the concrete situation of the client-default-albeit not create any alarm as to its overall solvency there is no reason to create a prejudice to its brand image and even a different behavior would be punishable in terms of civil liability (see Court of Naples, the order of 14.10.2004, the Court of Palermo, the order of 11.04.2002, the Court of Milan , order of 31.7.2001).
· The recording of a loan in default and the subsequent reporting to the Central Risk-in the cases just mentioned, and more generally in the absence of the conditions of the law-would be contrary to the principles of good faith and fairness in the functioning of the banking relationship and would justify a charge of violation of the responsibilities of reporting for that duty of mutual loyalty of Conduct which must prevail in the execution of any type of contract and in-concrete-poses as a commitment or obligation of solidarity which requires each party to take those behaviors which, regardless of contractual obligations and the duty of " neminem laedere ", without there being an appreciable sacrifice against him, are capable of safeguarding the interests of the other party (see, for all Cass in this regard recently. Sec. 3, Decision No. 13345 of 07/06/2006).
· Moreover, failure to comply with the duties of accounting and reporting of news is true and accurate in accordance with the provisions of the Banking Act and the directives issued by the Bank of Italy in the exercise of the powers entrusted to it by that law, is punishable, for members of the board of directors of credit institutions, with no representational functions, pursuant to art. 144 Leg. September 1, 1993, No 385, where due to actions or omissions by them. Therefore, the penalty rules do not contain any assumption of liability, assumption, however, the "eligibility" of the infringement to its author and thus the fault or negligent, otherwise than as provided by the general rules of the offense administrative deduced Law No 689 of 1981 (Cass. Sez. 1, Decision No. 6302 of 18/04/2003; Cass. Sec. 1, Decision No. 23012 of 09/12/2004)
· Moreover, as recently stated by the United Sections of the Supreme Court (see Cass. Sec. U, Order No. 7037 of 28.03.2006), "the dispute concerning the claim for damages brought by a customer against a bank, because of the erroneous report of his name to the Central Bank of Italy to the risks of a credit "in pain", is referred to the ordinary courts, are beyond dispute in connection with public services assigned to the exclusive jurisdiction of the administrative judge art. 33 of Legislative Decree no. March 31, 1998, No 80, introduced by the text. 7 of the Law of 21 July 2000, no 205 - which in keeping with the Constitutional Court No 204, 2004 - as such exclusive jurisdiction is assumed that the PA act exercising its authoritative, or exercise of the power to adopt negotiating tools in place of that power. By contrast, the interest of the client not being harmed by the conduct of the bank, in violation of the provisions established by the supervisory authority, constitutes an individual right, it being immaterial non-compliance by the bank on the instructions of the Bank of 'Italy, since the interest of the client is completely independent of the exercise of supervisory powers of the Central Banking. "
· Results therefore eligible applications under Art. 700 cpc withdrawal reporting of a non-performing loan made by a bank to the Central Bank of Italy risks, demand-in defect detection of a condition of economic and financial difficulties of the score-reporting is also based. There is a serious danger in delay justifying the granting of the injunction in the case of request for revocation of a pain signal to the Central risks, since the recurrence of the monthly reporting undermines the possibility for the customer to borrow from a bank, causing impairment of the "right company". The incorrect reporting of risks to the Central Bank of Italy of its liability in "bad debts" to the customer it is appropriate not only to produce harmful effects of enduring relevance, but also lead to a progressive accentuation of the same, so it may be the danger in delay that warrants the granting of an injunction, namely in the order given to the bank eliminate the reporting of the claim in question than those suffering (Naples Court, Order of 22.10.2002).
However, passing this examination of "merit caution" and applying the above principles to this case, it is considered that the conditions of a prima facie case and the danger in delay for the acceptance of limited interlocutory application explained reporting of suffering on contracts awarded in current account nos. 316 and 314 best shown in actions.
: It
• The balance of the c / c No 314 is from the perspective of the Bank-to-debt of the account to the tune of €. 95,878.67 (see the notice for payment of 17.7.2006).
• The balance of the c / c No 316-is always from the perspective of bank-debt to the depositor for the sum of €. 31,424.11 (see further formal notice of payment of 17.7.2006).
· In the debit balances in question formed part of the costs charged by the Bank from time to time to the account as interest ultralegali of maximum overdraft fee, for compounding, expenses (these are peaceful circumstances: cf. The defense of the Bank in the main case on the legality of negotiating such objections, cf. the report of Dr. Iacovone CTP in the interest of applicants and the references therein to such charges resulting from such statements, there is not products).
· The applicants as-there-in that main proceedings have specifically denounced both the opposition to the law of certain of such costs (compounding and CMS) on the other, the impossibility for them to verify the validity of contractual provisions relating to other costs (ultralegali interests), and this because of the continuing refusal to allow the Bank their vision of contract documents.
? Following the face of such complaints (from which the "cause of action" of legal action, and supervision of substance, of the account) was obviously burden Bank (alleged creditor) to provide rigorous proof of the existence of documents and both the legality (under Law and under a contract) from the same allegedly negotiating the stipulations laid the foundation of all the objections raised by the other party.
· The Bank in this regard has resulted in court, in its second pre-trial hearing, at the request of the Judge, a copy of the current account of the two contracts in question do not originally annexed into action. And there is just
necessary to point out that: there
· The contracts at issue were signed on 10.6.2003 and as such-to-subject temporal arrangements in cd. "Banking Act (Legislative Decree no. 385/1993).
· under art. TUB 117, the bank contracts should indicate the interest rate and any other price and terms, including, for the credit agreements, any additional costs incurred in the event of default.
· under the same standard, the ability to vary in a manner unfavorable to the customer the interest rate and any other price and condition must be clearly stated in the contract clause specifically approved by the customer.
· In addition, under the general rules in art. 1284 cc, "the best interests of the legal measures should be determined in writing, are due to the extent otherwise legal."
's again, the representative of overdraft as an element known to pay for the bank, additional interest charged, which has no legal source and thus requires the need for specific agreement (Cass. Sez. 3, Judgement No 11772, 06/08/2002), as the costs of the bill.
• Finally, the compound interest in bank contracts (in general terms different from those in art. 1283 cc) is now allowed for contracts Article bank. 120, paragraph II, TUB (added by paragraph. 25, paragraph II, of Legislative Decree no. 342/1999 cited above, instead of regulating the compounding pro future transfer), which provides that "the ICRC down mode and criteria for the production of interest on interest accrued on the transactions made in the performance of the banking system, in each case in the current account transactions is assured to customers in the same frequency count in the interests of both debtors and creditors
Examination of the two texts contractual noted the merits of the claims of the applicants and as a glance at them:
• Do not there is no trace of any stipulation on debenza ultralegali and extent of the interest charged to the account holder (interest, however - as stated in concrete-applied)
· There is no record of any stipulation on debenza and the extent of the Commission to Massimo been found to the current (as-told-Commission, however, applied in practice)
· There is no record of any stipulation on debenza and the extent of the costs of keeping and account management (costs, however - as stated in concrete-applied )
· There is no record of any stipulation on the frequency (monthly, quarterly, semi-etc.) of (generically) provided (see art. 7 of the general conditions of contract) agreed there capitalization equal frequency (periodic cap, however, as-told-applied in practice).
· It refers "to all other economic conditions applied to the relationship" (see art. 7 above) to an unidentified "attached form" to the contract, but neither there nor given product.
Moreover, it is significant that the Bank itself, both in the present case is that of on-while protesting against the assumption of absence and / or vagueness of negotiating agreements in question, it has categorically claimed responsibility for the existence and validity, but without attaching the measure of interest rate agreed upon, the frequency of capitalization agreed, the agreed percentage of the CMS etc. (See the "vacuum" in existing deductions defensive about the Bank).
It follows conclusively on that point:
· The current account contracts do not contain any valid agreement to the cost of credit in practice applied by the Bank during intercourse and incorporated them into debit balances end of which is an alert process . • Do not
was produced by the Bank negotiating other documentation relating to those accounts.
• The balance of the accounts adjusted by the cost above (left to the state title without negotiation) would be in surplus on current account (see CTP acts alleged by the Bank).
· The "denunciation" of the applicants not to debenza (for non-existent and / or disability on the basis of negotiation) costs (peacefully) was charged to the accounts state procedurally based.
• The applicants' refusal to settle the debt made (and therefore) is therefore subject to reporting to the state-in exequatur summary challenged in this proceeding and in light of the findings obtained in procedural acts non-pretextual.
¨ ne follows that can not locate the "slope fine "challenged a state of" suffering "legitimizing the reporting of risks to the Central Bank of Italy.
· It fact, since they cover a previous debt position of reporting to court today not because of an insolvency or a chronic difficulty in fulfilling the latter but the persistence of a dispute between the parties (and extra-judicial) about the actual debenza and extent of the debt, in which the reasons given by the client (there passing resolutions) do not appear specious-is without that feature advertising for the protection of the credit market that could recognize species-in-only to a reporting of actual pecuniary distress of the debtor in the broad sense indicated.
· May as a precautionary measure, therefore, ordered the suspension of the urgent message to the Central Risk of suffering on account of two contracts in question (respectively €. 95,878.67 and €. 31424.11), to meet the need precautionary measure to avoid in-waiting of the forthcoming definition of the substance of the dispute-the danger of further injury personal image and business arising no doubt (in re ipsa) to applicants from the "advertising" under consideration
On the other hand does not deserve the status accepted (for lack of prima facie case), the competitor claim of the applicants for suspension of the distress signals for the two loan agreements and in the summary
· Both contracts contain the index of "costs" of financing (see the related thesis negotiation).
· The cost does not exceed the agreed threshold rates under usury laws (see CTP attached to the application).
· The coupling negotiation of agreed measures the variability of the rate change in a parameter (Euribor) outside (the lender), fixed, official and as such satisfies the need to objectively knowable predeterminabilità generally to its former art. 1284 cc Conventional rate ultralegale (Cass cfr.ex multis. Sec. 3, Decision No. 14684 of 02/10/2003, Cass. No 2103/1996).
· The prediction of debenza agreed, in case of delay in repayment of the loan, interest on the entire payment (including principal and interest payments) is not contrary to law, since issue of contract (signed in 2006 and then) under the temporal framework of Resolution ICRC 9.2.2000 for which (see art. 3: "Loans with repayment installments") "operations for which financing is expected that the repayment of loan is made by paying the default rate with time frames, in case of default by the debtor, the total amount due at the end of each installment may, if contractually agreed, bear interest from the due date and until the time of payment. "
· The further assumption of the plaintiff's alleged unlawful rising "anatocistica" the debt of the loan for the alleged transit of it on (an unidentified) current account (see page. 17 of the response of the main proceedings) procedurally irrelevant because it is assumed quite general as well as unproven.
It follows then that:
· The applicants have legitimately concluded with the Bank the two loans at issue.
· This calculator is not affected by the invalidity negotiating and accounting denounced by the borrowers.
· Through these loans, the applicants received loans in the sum of € respectively. And € 600,000.00. 160,000.00.
As regards the first of these loans is noted that as of 7/17/2006:
• Result of the first four installments of unpaid it expired (peaceful circumstances: cf. The notice of 17.07.2006).
· The total amount of the installments due was €. 34,483.25, resulting in default interest for €. 390.93 (peaceful circumstances: cf. The notice of 17.07.2006).
· The Bank, therefore, is legitimately exercised (see the formal notice of 17.07.2006) the deprivation of the benefit of the term art. 1186, provided by contract (ex art. 6 contracts) even in the presence of non-payment of one installment.
· It has - as a result-and legitimately claimed by a refund of the borrower defaulting on a loan (outstanding principal at the end: €. 573,802.13; installments due: €. 34,483.25; arrears on unpaid installments: €. 390.93; accrued interest from 06.30.2006 to 17.07.2006: € 1,612.23), and then a total of €. 610,288.54.
As regards the second of these loans is noted that as of 7/17/2006:
• Result unpaid installments of it expired (peaceful circumstances: cf. The notice of 07.17.2006).
· The total amount of the installments due was €. 6152.15, resulting in default interest for €. 47.41 (peaceful circumstances: cf. The notice of 17.07.2006).
· The Bank, therefore, is legitimately exercised (see the formal notice of 07.17.2006) the deprivation of the benefit of the term art. 1186, provided by contract (ex art. 6 contracts) even in the presence of non-payment of one installment.
· It has - as a result-and legitimately claimed by a refund of the borrower defaulting on a loan (outstanding principal expire: €. 153,013.90; installments due: €. 6152.15; arrears on unpaid installments: €. 47.41; accrued interest from 06.30.2006 to 07.17.2006: € 429.93), and then a total of €. 159,643.39.
It follows that in the end:
· The borrowers have become seriously breaches its obligations of repayment of loans from the Bank.
· The debts accumulated as the concrete situation of "suffering" that the law-given their high-entity must be reported to the Bank of Italy.
· The allegations of invalidity of state loans are unfounded.
· The more generic and assumptions in order to Bank borrowing against alleged acts in good faith have been deprived of any element of support orders.
However it seems appropriate to say "incidentally that:
· Even if there was found to outcome-based summary of the enforcement procedure, the experiment in these proceedings" exception of nullity of mortgage alleged by the claimants, said nothing would be achieved statutory obligation for the same returned to the bank as of this (peacefully) bestowed on them "untitled" (ie without a valid contract) for capital (ie a total of €. 760,000.00) .
• It is clear, therefore, unfounded, even from this perspective, the deductions of the borrower in relation to an alleged non-existence of the debt (loan from default) an alert in question.
Indeed, the plurality of current reports of "trespassing" was published at the Central Bank of Italy Hazard from other intermediaries (see the documentation with the resistance issue), reveals, in the light of what has been observed about the severity and attribution of the failure of borrowers to finance the bonds in the test, the existence of a general and severe economic difficulties of the applicants in respect of the banking system in general (so-called "global position of risk).
therefore considered that the application of inhibitory processes which can only take in order to alert the suffering in the current account contract mentioned above and not to the mortgage in question.
finally noted that the term should be fixed the same for the start of proceedings, foretold by the applicants, which must necessarily be also entrusted with the settlement of the costs of litigation of this proceeding
PQM
partially upheld the complaints under Article . 700 cpc meeting
ORDER
the resistance, in its legal representative pro tempore, to immediately suspend, as of the date of notification of this order, the regular reporting of risks to the Central Bank of Italy of the position of suffering the applicants limited to outstanding positions of the same on the two contracts account nos. * And * best shown in actions (debit positions quantified in the formal notice of the acts on 17/07/2006, respectively, in €. 95,878.67 and €. 31424.11).
REJECTS
Why unfounded further urgent application for suspension of the regular reporting of risks to the Central Bank of Italy's position on the suffering of the applicants of the same debt positions arising best described by the loan agreements into action.
FIXED
In 60 days of notification of this order, the deadline for the establishment between the parties to proceedings, while reserving the outcome of this decision on the costs of these proceedings.
The Registry of the scope of its competence.
Pescara, 21.12.2006
Judge
Gianluca Falco
