I crediti in sospeso: vi sono effettive possibilità di recupero?Il recupero dei crediti dalla fase extragiudiziale a quella giudiziale

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da blog.avvocatomalvone.it, di Avvocato Malvone

www.avvocatomalvone.it

Ho deciso di iniziare gli aggiornamenti giuridici in tema di recupero del credito spiegando, innanzitutto, quali sono i metodi principali per ottenere, dai debitori, il pagamento degli importi da questi dovuti.

Molti dei miei clienti, infatti, si rivolgono a me proprio per risolvere tale problema; molte altre persone tuttavia decidono purtroppo di desistere, non rivolgendosi ad un legale, immaginandosi di dover spendere ulteriori danari per compensi all’avvocato senza poi ottenere alcunchè: in realtà, come avrò modo di esemplificare, molto spesso si può, con relativa facilità, in tempi relativamente brevi e con esborsi relativamente bassi (e che verranno all’esito della procedura restituiti dal debitore), recuperare effettivamente il credito vantato.

Vi sono, nei casi concreti, due situazioni assolutamente da evitare, situazioni che, nella maggior parte dei casi, rendono all’avvocato, in sede di incarico, molto difficoltoso il recupero effettivo.

La prima è quella di procrastinare le azioni di recupero del credito: tale atteggiamento, infatti, porta due conseguenze negative ed irrimediabili; la “convinzione” da parte del debitore di poter omettere i pagamenti senza conseguenze e l’aumento del credito vantato, che rende difficoltoso il recupero. Più è diventato, nel corso dei mesi, alto l’importo da ottenere più sarà difficoltoso, anche in caso di azioni esecutive, recuperare l’intero credito.

La seconda, invece, come già accennato, è quella di pensare che il recupero sia comunque impossibile e, dunque, non compiere alcuna azione: si ribadisce infatti che molto spesso, in caso di azioni giudiziare, il credito viene effettivamente recuperato, con rimborso di tutte le spese legali sostenute.

******

Vi è da dire che, molte volte, è sufficiente un sollecito di pagamento in forma scritta da parte del creditore, che potrà farsi aiutare dal proprio avvocato, mediante un modello di diffida, alla redazione per l’invio: si potrà concedere al debitore un termine (diciamo di 15 giorni) per il pagamento e, in assenza, proseguire con le azioni mediante il conferimento formale dell’incarico al proprio avvocato.

L’avvocato redigerà una nuova lettera di diffida e, in questo caso, se riceverà riscontro dalla controparte potrà intraprendere una trattativa per un recupero extragiudiziale del credito mentre, in caso di mancato riscontro o mancato pagamento, potrà intraprendere le azioni giudiziarie necessarie.

In caso di mancati pagamenti, con un esborso economico relativamente basso (si veda il mio listino), è infatti possibile richiedere al Giudice ed ottenere, entro 30 giorni, un decreto ingiuntivo, titolo giudiziario che, in caso di mancato pagamento, permette di procedere ad esecuzione forzata mediante pignoramento.

Il decreto potrà essere, in alcuni casi (come nel caso di crediti vantati dal Condominio per spese condominiali o in caso di riconoscimento di debito) immediatamente esecutivo, permettendo così l’immediata notifica al debitore unitamente all’atto di precetto e, dopo ulteriori 10 giorni, di intraprendere già l’esecuzione forzata.

Negli altri casi, dopo la notifica al debitore bisognerà attendere 40 giorni, nel corso dei quali il debitore potrà “opporsi” (se ritiene di non dover pagare: normalmente avviene solo nei casi “controversi”) instaurando un giudizio ordinario o rimanere inerme.

Decorso inutilmente tale periodo, anche in questo caso si potrà notificare l’atto di precetto e, dopo ulteriori 10 giorni, intraprendere l’esecuzione forzata.

Sulla base della mia esperienza, molte volte, già la notifica del decreto ingiuntivo o dell’atto di precetto porta il debitore, consultato un avvocato, a formulare una proposta transattiva per evitare ulteriori esborsi e le azioni esecutive.

Se però ciò non accadesse è sempre possibile, mediante un ulteriore esborso economico non ingente, intraprendere l’esecuzione forzata, attraverso un pignoramento che potrà essere mobiliare (es. mobilio in casa, attrezzature o cassa in azienda), presso terzi (es. conto corrente bancario, 1/5 dello stipendio, canoni di locazione, pagamenti per forniture) o, in caso di importi ingenti, immobiliare.

In effetti, le ampie possibilità di azioni esecutive accordate al creditore permettono, molte volte, l’effettivo recupero forzoso: è infatti probabile che il debitore abbia un conto corrente movimentato, o uno stipendio da lavoro subordinato, o denaro contante nella propria cassa o, ancora canoni di locazione o pagamenti da riscuotere. Normalmente, peraltro, è lo stesso creditore ad avere tali informazioni, cosa che evita il ricorso ad una società investigativa e, dunque, accelera di molto i tempi e diminuisce i costi.

Parlerò specificamente dell’esecuzione forzata nei successivi aggiornamenti, in ogni caso basti in questa sede ricordare che il recupero del proprio credito è spesso e volentieri concretamente possibile e con gli accorgimenti di cui sopra le possibilità aumentano considerevolmente: inoltre,tutti gli esborsi effettuati per le azioni giudiziarie vengono sempre liquidati dal Giudice, motivo per cui il debitore dovrà versare, oltre all’importo capitale ed agli interessi dovuti, tutte le spese legali sostenute dal creditore che, dunque, vedrà recuperati tutti gli esborsi effettivamente sostenuti.

Vi invito pertanto a contattarmi per una valutazione della Vostra situazione creditoria!

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