Reporting a customer to the Central Risk is due when the credit report within limits defined by the census instructions of the Bank of Italy. Among the recommendations due, most do not have discretion to intermediaries, as it is the same rule that determines the amount above which the registration must still be made, the recording of bad debts, however, involves 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 category of suffering can be traced back the entire census exposure to persons in case of insolvency, even if not judicially determined, or substantially similar circumstances, regardless of any estimated losses made by the company. Apart, therefore, the existence of any guarantees (real or personal) in defense of claims. Excludes positions for which the situation of fault is attributable to the relevant country risk profiles. 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. "
In the case of insolvency not established judicially or non-overt the bank has an area of \u200b\u200bdiscretion on the technical qualifications of the position "in distress" and the subsequent decision to make a communication to the Central Risk. Therefore, any statement of the responsibilities of reporting, for violation of the interests at stake in that there is an irregular signal, it needs to anchor itself to the establishment of a negligent and reckless conduct, in this case the infringement of the discretion conferred Instructions from the Institute of the Bank of Italy, which are to constitute, therefore, the professional rules of conduct intermediary.
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 part of the subject indicated, a state of insolvency as provided by art. 5 Insolvency Act.
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 (that of 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 an analysis global and dynamic perspective, was no longer able to ensure efficient and profitable organization productive in the other case, however, the question is whether a given credit position (headed by a bank or other intermediary Financial, against a person not necessarily contractor) should be reported to the Central Risk and eventually into the category of 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 control the clientele.
Because the function of advertising in the interests of the credit market justifies the opinion that the report can not fail to take account of this chief purpose and must be oriented so as to determine in the light of the overall financial situation of the client, the danger (for the reporting and other possible future creditors) of obligor default, and the difficulties collection of the credit.
The institute creditor must run when the alert considers this difficulty, without having to make 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. Otherwise be frustrated with the usefulness of centralization of service risks as other intermediaries, especially those that have granted credit facilities to whom the report, it would be unable to take action in time for its protective position, so now affected Stop by the next failure 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.
E 'certain, however, according to the instructions of the Bank of Italy, signaling that the suffering can not derive automatically from the non-debtor, for the mere delay may not lead to the alert.
Reporting the position as doubtful, moreover, requires 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 likely prosecution of recupero22. Therefore, as specified 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.
dell'appostazione purposes of a claim as suffering, it is necessary to take account of the balance sheet total of the debtor, or at least the whole of the relationship between the debtor and the banking system. However, the doctrine precludes the bank should carry out further investigations to supplement the information available.
Finally, is not considered and conducted in accordance with the canons of professional care, as codified in the rules of the sectors, the reporting of suffering as a given, before the formal withdrawal of concessions.
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