COURT OF LECCE
Commercial Section
No. 2855/2000 Role of general business litigation
THE COURT
taken to a lifting of the reservation? Hearing on 19.8.2003;
read the documents and files of proceedings
gives the following
ORDER IN CIVIL ACTION BROUGHT From
Cosimo Pellegrino and M. PERRONE Rosaria, represented and defended by the lawyers and Mr. Leganza Avv.TANZA RENATO ANTONIO ERNESTO;
against
INTESA SPA CREDIT MANAGEMENT, represented and defended by the lawyers and Mr. Prof. Avv.ALBIONE VITO ANTONIO GEORGE CONSTANTINE;
*** ***
1. OBJECTION TO LACK OF CAPACITY OF PASSIVE INTESA SPA MANAGEMENT CREDITS:
L? Exception seems unfounded.
E? true that? opposition would have to contain the indication of the quality of Intesa Gestione Crediti SpA of Attorney Cariplo (which costs in the application for injunction).
However, that? Opposition was referring to the injunction no. 4838/00 of 08.07.2000 issued by the judge of the Court of Lecce (although the action went, in? header, refer to the separate fields of Salento) can be deduced from the ambiguity in the way of content? summons, which makes specific reference:
- the Decree injunctive nr.
4838/00 - the date of delivery of the same: 07:08:00
- the sum of which was ordered to pay: £ 25,579,128.
The Court states that the special power of attorney to perform an act, empowering the attorney to sue and be sued in? Possible, thus, be reasonable.
the Special Prosecutor for? Administration of a property leased or rented, which reflects the power of attorney "to carry out evictions, and acts executive "shall be construed as covering not only the faculty? to promote the show trial, with the license notice for termination or eviction for arrears?, but also the right to sue and be sued in? any ordinary process of knowledge that will establish itself to effect of? of opposition? notice, and therefore also the power to enter directly, in ordinary litigation, similar initiatives trials, with application to obtain a preliminary assessment of termination of lease or rental, or a preliminary constitutive of termination of the Agreement, for default of the lessee or tenant, ancorche? different from non-payment of fees (Cass., UP, 6918/83). It follows that
? Opposition should have been notified, although increasingly, spa Intesa Gestione Crediti.
L? Failure to mention the quality of the spa Cariplo prosecutor has not prevented the Intesa Gestione Crediti spa ritual to have news of the opposition, being legal principle established that the proceedings should be interpreted, and there can be neither the court nor the party to be limited only nomen juris (Cass. 12413/2000).
2. PRIMA FACIE:
At present, there is the requirement of a prima facie case, since the technical expertise ordered by the court of sub-offices Fields Salento (in? Scope of the opinion nr. 5083/99) has applied for absence credit and bank? hand? for the existence of a claim of today's actors in opposition (credit variable, depending on the options made by the court, from a minimum to a maximum of £ 36,708,273 £ 62,752,704).
The declaration made by Cosimo PELLEGRINO l? September 8, 1998 can not be classified as a confession but as a recognition of debt.
E? sufficient to show that the communication contains only the willingness to provide full payment of amounts owed to the institute within 18 months by monthly installments.
There is no admission of unfavorable facts, facts? in this case? should be the indication quantum of the amount due.
The Court says it? in absolute harmony with the provisions of? art. 2730 cc - that for? Identification of a statement contained confessors, is it necessary? Indication of adverse events.
The declaration is liable to be acknowledgment of debt within the meaning of? Art. 1988 Civil Code. and confession, which has the objective facts and legal relations, or opinions and evaluations (Cass. 363/75).
The promise of payment, even if it is titled, because it contains l? Debendi indication of the cause, why not take nature confessors, since, in a declaration of intent agreement to commit the promisor to? Performance of the service, object of the promise, it can not be confused with the confession, which is the statement of facts adverse to the registrant, and therefore the contents of a statement of science. Even in that situation, therefore, have the system - established by? Last part of? Art. 1988 Civil Code. - That the promisor may demonstrate? Absence of the case, and therefore the invalidity of the promise, while the specific limitations laid down by the test? Art. 2732 Civil Code. (Impossibility to withdraw the confession given by an error of fact or violence) for confession, could be applied when, in the context of the same ument, next to the intent to promise, the statement coexist historical facts from which arises the fundamental relationship (Cass. 1972/75; Cass. 629/95). It follows that
? Reverse burden of proof (originated from? Art. 1988 cc) appears? state? complied with? outcome of the technical advice prepared in case no. 5083/99, to the extent necessary for the configuration of a prima facie case required for? Upheld the appeal pending trial.
3. Danger in delay: 3.1
jurisprudence: The law allows
no doubt that an unlawful reporting to the Central Risk assuming a protective order to obtain the cancellation action, recognizing the periculum in the impairment of integrity, and then the image of the account holder and / or difficulty access to bank credit, or even the risk of a withdrawal of other credit facilities (with the resulting crisis of? company).
E? suffices to consider the following decisions, even to realize the relevance of the issue in question:
In the service of so-called "middle risk" the Bank? Italy plays a role of mere perpetrator of reports received by banks and finance companies, which can not review the merits. L? Any correction submitted by a financial intermediary in order to comply with a judicial ruling would uncritically recorded and made immediately available to users of the service. In the course of the proceedings, can be check irreparable and serious impairment of the applicant's right to free enterprise, consisting of the greater difficulty in obtaining credit in the market (Court of Salerno, 22:04:02, in Jur. Comm, 2003, II, p. 210) The CD
pactum not in perpetuum de petendo concluded between the creditor and l? obliged, although not involving debt forgiveness and thus giving rise to? compulsory termination of the relationship, determines? current and perennial written off the debt on the debtor. The risks of reporting to the Central Bank? Of Italy? Existence of a claim to suffering can only come from? Inability of the obligor to meet its obligations in the ordinary way toward? Intermediary bank or financial reporting and can not be made according to a state of insolvency can be deduced from other factors. The incorrect reporting of risks to the Central Bank? Of Italy? Existence of a claim "bad debts" to the customer? suitable 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, justifying the granting of a measure d? urgency, consisting in? order given to the bank to eliminate reporting of the claim at issue in those suffering (22:10:02 Trib Naples, in Jur. Wed, 2003, I, p. 207).
should be ordered, with a measure d? Urgency, the withdrawal of report of a non-performing loan made by a credit institution, the Central Bank of the risks? Italy, in the absence of a finding of difficult conditions? financial condition of the customer to whom the "suffering" may be linked. There is danger in delay justifying the grant of the d? Urgency in the case of request for revocation of a pain signal to the Central risks, because? recurrence of the monthly reporting undermines the chances? for the customer to borrow from a bank, causing that? impairment of the "right to?" undertaking "(Trib 4:11:02 Palermo, in Jur. Wed, 2003, I, p. 207)
to determining whether the requirement for reporting a claim to suffering, the debtor must be in a situation d? insolvency, understood as a failure? regularly to meet its obligations, the meaning of the concept developed in relation to? art. 5 fallim law. Or even in a situation that, in view of liquidity? of the subject, its overall financial condition, its capacity? production and / or earnings, the present situation of the market in which it operates,? amount of credit granted, of? total amount of credit obtained by the credit system and / or financial, or other indicative data, suggests the recovery of the debt "at risk", ie the odds? of success is not high. Therefore, if e? true that banks 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 may not give prominence to the mere delay in the payment of a debt "(Trib 22:04:02 Salerno, Fall in Dir., 2002, II, p. 407)
The report credits "in distress", performed in the absence of the conditions of justification, legitimate use of the precautionary protection atypical failing which the bank would be free from any trade union on in? discharge of duties imposed by? authorities? supervision. Not being able to the right of economic initiative and business reputation to be compensated fully equivalent, the danger presents the requirements of both? imminence of that? IRREPARABLE?. To reach a credit reporting "bad debts", the bank can not? never dispense with proper and thoughtful appreciation of the state of difficulty? economic and financial reviews. The challenge to the extent of the unilateral changes and the quarterly capitalization of interest payments, even when they adhere to all? of the amounts owed by the bank and even in the absence of a preliminary proceedings, it is not?, per se? alone, a circumstance sufficient to warrant an alert. An erroneous report to the Central Credit can? determine the interference with the right business, can I? affect the regime of free competition and on the same credit system. The damage to injury law and business? in re ipsa, as plausibly hindered the conduct of future? activities? business (Court power, 4:05:01, in Jur. Comm, 2003, II, p. 210)
signaling to the exchange risk of the names of the actors and the negative balances of their accounts by the bank before the formal withdrawal of credit is not? conducted for the fees of professional care as codified in the rules issued by the Bank's own sector d? Italy. Such conduct may well? then integrate the specific title of responsibility? the bank to depositors, since non-compliance with the rules identified by caution? professional order is a specific index is the existence of fault relevant art. 2043. Civ. is the violation of the canons of fairness and good faith required in the performance of all reports required under the general rules under Articles. 1715, 1374, 1375 Ref. civ .. By comparison with the image of the damage to personnel, l? Finding of a breach of good character? the person (ie a subjective position by itself? protected from? order as related to the identity of each individual) results in re ipsa also? finding of a compensable injury, to be paid equitably, irrespective of the evidence of a actual harm to the business interests and property of the injured party (Court of Milan 19:02:01, in Jur. lt, 2002, p. 334) Leaving aside the
? Case of loss, in principle, it is considered that? Bank, for an ambush of a proper grounding is not subject to reporting and suffering that goes hand forwarded must, in practice, to determine whether the counterparty pays "insolvent, even if not judicially determined, or substantially similar circumstances, regardless of? existence of guarantees or estimates of loss" (Trib Cagliari 10/25/2000 in BBTC, 2002, II, p. 442)
L ? recording of a claim of bad debts and the resulting signal at the Central Credit can only occur in case of insolvency, even if not judicially determined, or in comparable situations: for the first hypothesis, and? clear that the concept of default required by bankruptcy law, so the alert in question must be in cases of chronic inability of the account to meet regularly to their obligations, for what concerns the "comparable situations" must be considered that these exists in the case of objective economic and financial difficulties of the account. Nell? Context of a current account and a credit, the bank, having the? Obligation to act in good faith, shall not make reports at the Central Credit in the absence of the conditions, it?, Much less, with reports terms, that is intentionally designed to communicate data not truthful about their customers: that in view of your interest to be free of the account records that, objectively, could affect his future access to credit seriously and measures its business reputation, which would harm not only to? entrepreneurial image, but also closely sheet, in terms of reduction of investment opportunities (09/26/2000 Trib Brindisi, in BBTC, 2002, II, p. 219)
3.2 Decision:
As for the instrumentality of the application of precaution, it is sufficient to show that the conclusions taken with? act in opposition to injunction, the opponents have sought to order the bank to recover damages suffered by opponents as a result of illegitimate signaling wing at the Central Bank of the risks? Italy, because of the risk to suffering falsely quantified.
In this case, the adverse consequences caused by signaling to the exchange risks are ument from the BNL letter of 05/09/2003, which promises the withdrawal of? Expectations, making explicit reference to the reporting category? Doubtful? Risks of the Central Bank of Italy, the month in February 2003, for? 19564.00.
The court therefore believes that precautionary action should be upheld.
However, given that? Outcome of the two cases is not predictable with sufficient certainty, it is appropriate? in order to reconcile your interest actors with that of the generality of the banks can rely on complete information (and function of the Central Risk)? not order the removal of their names, but the? inclusion in the report to appropriate clarification.
4. Continent:
The court believes that one of the two cases there is a relationship of continence, since it is established in law that judging opposition substantial result of the failure of an injunction covers not only the? Existence of the debt driven, the report referred to it and ? object and the facts on which the claim and the report itself is based, but also the? lack of preventative facts, extinguished and amending of the report and credit prior to the application for an order and not submitted with? opposition (Cass. 15178/00).
should therefore have the file was forwarded to the President of the Tribunal, to assess whether the conditions for the meeting of this case to that number. 5083/99 pending before the court of sub-offices Fields Salentina
PQM
a) having regard to Articles. 669quater and 669octies cpc;
order to Intesa Gestione Crediti spa spa to communicate to the Central Risk, in relation to credit reporting in suffering? 19,564.00 owed by Cosimo Pellegrino (born in the Trepuzzi 18:11:45, cf: PLL CSM 45S18 L383T) that the claim is in dispute and that at present seems non-existent, consider The findings of the technical accounting advice prepared by the court of sub-offices Fields Salento (case no. 5083/99);
b) having regard? art. Cpc 274;
has the file was forwarded to the President of the Tribunal, to assess whether the conditions for the meeting of this case to that number. 5083/99 pending before the court of sub-offices Fields
Salento Lecce, there
THE COURT 08/25/2003
Dr. Massimo Orlando
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