IL RECUPERO DEL CREDITO NELLA FASE GIUDIZIALE: Le forme di esecuzione mediante pignoramento

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Indice:

- Il pignoramento mobiliare presso il debitore 1

a) Il Pignoramento di autoveicoli 3

- Il pignoramento presso terzi 3

- Il pignoramento immobiliare 5

Proseguendo con il tema del recupero del credito, affrontato nella prima newsletter dell’anno 2017 nella quale è stata esemplificata la fase extragiudiziale ed accennata quella giudiziale, si vuole con questo aggiornamento specificare le varie possibilità di recupero forzoso del credito dopo l’ottenimento di un titolo giudiziale.

Come si è già detto, infatti, a seguito del mancato pagamento degli importi dovuti dal debitore è possibile ottenere un decreto ingiuntivo che, divenuto esecutivo, è a tutti gli effetti un titolo giudiziario atto a richiedere l’esecuzione forzata.

Il decreto ingiuntivo esecutivo, così come una sentenza di condanna resa a seguito di un giudizio ordinario, permette dunque al creditore, in caso di mancato pagamento, di intraprendere il c.d. pignoramento.

Esistono, sostanzialmente, tre tipi di pignoramento: quello mobiliare presso il debitore, quello presso terzi e quello immobiliare.

Tutte le procedure permettono di aggredire il patrimonio del debitore e, dunque, danno ampi margini di recupero effettivo del credito.

Il pignoramento mobiliare presso il debitore

Il pignoramento mobiliare consente al creditore, mediante l’accesso dell’Ufficiale Giudiziario competente, di pignorare le “cose mobili” di proprietà del debitore.

Si può trattare, in caso di persona privata, di beni di valore all’interno della proprietà (quadri, tappeti, gioielli) o, se si tratta di società, i beni al suo interno (merci, attrezzature, rimanenze di cassa): il solo limite è quello dell’impignorabilità di alcuni beni.

A norma dell’art. 513 c.p.c., infatti, “L'ufficiale giudiziario, munito del titolo esecutivo e del precetto, può ricercare le cose da pignorare nella casa del debitore e negli altri luoghi a lui appartenenti. Può anche ricercarle sulla persona del debitore, osservando le opportune cautele per rispettarne il decoro. Quando è necessario aprire porte, ripostigli o recipienti, vincere la resistenza opposta dal debitore o da terzi, oppure allontanare persone che disturbano l'esecuzione del pignoramento, l'ufficiale giudiziario provvede secondo le circostanze, richiedendo, quando occorre, l'assistenza della forza pubblica”.

Ma, secondo i successivi artt. 514 e 515 c.p.c., “oltre alle cose dichiarate impignorabili da speciali disposizioni di legge, non si possono pignorare:

1) le cose sacre e quelle che servono all'esercizio del culto;

2) l'anello nuziale, i vestiti, la biancheria, i letti, i tavoli per la consumazione dei pasti con le relative sedie, gli armadi guardaroba, i cassettoni, il frigorifero, le stufe ed i fornelli di cucina anche se a gas o elettrici, la lavatrice, gli utensili di casa e di cucina unitamente ad un mobile idoneo a contenerli, in quanto indispensabili al debitore ed alle persone della sua famiglia con lui conviventi; sono tuttavia esclusi i mobili, meno i letti, di rilevante valore economico anche per accertato pregio artistico o di antiquariato;

3) i commestibili e i combustibili necessari per un mese al mantenimento del debitore e delle altre persone indicate nel numero precedente;

4) gli strumenti, gli oggetti e i libri indispensabili per l'esercizio della professione, dell'arte o del mestiere del debitore;

5) le armi e gli oggetti che il debitore ha l'obbligo di conservare per l'adempimento di un pubblico servizio;

6) le decorazioni al valore, le lettere, i registri e in generale gli scritti di famiglia, nonché i manoscritti, salvo che formino parte di una collezione;

6-bis) gli animali di affezione o da compagnia tenuti presso la casa del debitore o negli altri luoghi a lui appartenenti, senza fini produttivi, alimentari o commerciali;

6-ter) gli animali impiegati ai fini terapeutici o di assistenza del debitore, del coniuge, del convivente o dei figli.

E ancora, “gli strumenti, gli oggetti e i libri indispensabili per l'esercizio della professione, dell'arte o del mestiere del debitore possono essere pignorati nei limiti di un quinto, quando il presumibile valore di realizzo degli altri beni rinvenuti dall'ufficiale giudiziario o indicati dal debitore non appare sufficiente per la soddisfazione del credito; il predetto limite non si applica per i debitori costituiti in forma societaria e in ogni caso se nelle attività del debitore risulta una prevalenza del capitale investito sul lavoro”.

Il procedimento, come si è accennato, consiste nel richiedere all’Ufficiale Giudiziario l’accesso nel luogo di residenza (o presso la sede): in caso di esito positivo l’Ufficiale Giudiziario redigerà un verbale specificando i beni pignorati e la stima sul valore.

Sarà necessario, appena restituito tale verbale, iscrivere a ruolo in Tribunale la procedura entro 15 giorni, al fine di richiedere al Giudice la vendita forzata (o l’assegnazione nel caso in cui valore risulta dal listino di borsa o di mercato, come disposto dall’art. 529 c.p.c.) dei beni ed ottenere il ricavato.

Tale procedura è, in linea di massima, semplice, snella e poco costosa: sconta però vari problemi.

Il primo è che non sempre il debitore consente l’accesso ai propri locali, rendendo così vano il tentativo dell’Ufficiale Giudiziario.

Altro problema è che non sempre si rinvengono beni di effettivo valore e, comunque, anche se reperiti, non sempre gli stessi vengono effettivamente acquistati nel corso della vendita forzata.

Ritengo pertanto che tale procedura può essere attivata solamente nel caso in cui si sia effettivamente a conoscenza del fatto che, presso residenza o sede del debitore vi siano beni di effettivo valore o, ad esempio nel caso di imprese commerciali, nel tentativo di pignorare le rimanenze di cassa.

a) Il Pignoramento di autoveicoli

Caso particolare, invece, il pignoramento di autoveicoli che si può svolgere sia nelle forme sopra esemplificate, sia nelle nuove forme di cui all’art. 521-bis c.p.c.

Semplificando, il procedimento ordinario consente di “dare vita” al pignoramento solo se l’Ufficiale Giudiziario rinviene effettivamente il veicolo, cosa che permette di trascrivere il pignoramento al P.R.A. e richiedere la vendita forzata.

Tuttavia, spesso l’autovettura è ricoverata in un’autorimessa o, peggio, si trova in altro luogo non conosciuto: in tutti questi casi la procedura aveva esito negativo.

La nuova disposizione di legge, invece, dà l’opportunità di optare per la notifica di un semplice atto di pignoramento nel quale si intima al debitore di consegnare, entro 10 giorni, il veicolo all’Ufficio Vendite Forzate: ciò consente di trascrivere sempre il pignoramento al P.R.A.

A norma del citato art. 521-bis c.p.c., infatti, “Il pignoramento di autoveicoli, motoveicoli e rimorchi si esegue mediante notificazione al debitore e successiva trascrizione di un atto nel quale si indicano esattamente, con gli estremi richiesti dalla legge speciale per la loro iscrizione nei pubblici registri, i beni e i diritti che si intendono sottoporre ad esecuzione, e gli si fa l'ingiunzione prevista nell'articolo 492. Il pignoramento contiene altresì l'intimazione a consegnare entro dieci giorni i beni pignorati, nonché i titoli e i documenti relativi alla proprietà e all'uso dei medesimi, all'istituto vendite giudiziarie autorizzato ad operare nel territorio del circondario nel quale è compreso il luogo in cui il debitore ha la residenza, il domicilio, la dimora o la sede.

Col pignoramento il debitore è costituito custode dei beni pignorati e di tutti gli accessori comprese le pertinenze e i frutti, senza diritto a compenso.

Al momento della consegna l'istituto vendite giudiziarie assume la custodia del bene pignorato e ne dà immediata comunicazione al creditore pignorante, a mezzo posta elettronica certificata ove possibile.

Decorso il termine di cui al primo comma, gli organi di polizia che accertano la circolazione dei beni pignorati procedono al ritiro della carta di circolazione nonché, ove possibile, dei titoli e dei documenti relativi alla proprietà e all'uso dei beni pignorati e consegnano il bene pignorato all'istituto vendite giudiziarie autorizzato ad operare nel territorio del circondario nel quale è compreso il luogo in cui il bene pignorato è stato rinvenuto.

Pur se dal punto di vista procedurale non cambia molto (nel senso che, se il debitore non consegna spontaneamente il veicolo la procedura avrà esito negativo), ritengo invece che tale nuova forma cambi di molto le cose sul piano pratico.

Poter trascrivere il pignoramento, infatti, permette – nel caso di un semplice controllo da parte dell’autorità giudiziaria – il sequestro del veicolo e rende impossibile la vendita, sino alla cancellazione del pignoramento, al debitore: ciò può portare, a volte, al raggiungimento di un accordo per il pagamento, al fine di evitare e rimuovere i concreti ostacoli che un pignoramento trascritto al P.R.A. causa.

Il pignoramento presso terzi

E’ il mezzo di esecuzione più utilizzato in quanto, effettivamente, il più efficace a disposizione del creditore: con tale tipo di pignoramento, infatti, è possibile pignorare qualsiasi credito vantato dal debitore nei confronti di terzi.

Si tratta, per intenderci, del c.d. pignoramento di 1/5 dello stipendio (o della pensione) presso il datore di lavoro.

Con questo mezzo di esecuzione è possibile, ad esempio, pignorare ad un’eventuale conduttore i canoni di locazione dovuti al proprietario/debitore, o in caso di impresa al cliente gli importi dovuti per forniture. Ancora, è possibile pignorare il saldo attivo del conto corrente bancario o, come si è detto, 1/5 di stipendio e pensione (dedotto, per il solo caso della pensione, il c.d. “minimo vitale”)

A norma dell’art. 543 c.p.c., infatti, “il pignoramento di crediti del debitore verso terzi o di cose del debitore che sono in possesso di terzi, si esegue mediante atto notificato [personalmente] al terzo e al debitore a norma degli articoli 137 e seguenti.

L'atto deve contenere, oltre all'ingiunzione al debitore di cui all'articolo 492: [...]

4) la citazione del debitore a comparire davanti al giudice competente, con l'invito al terzo a comunicare la dichiarazione di cui all'articolo 547 al creditore procedente entro dieci giorni a mezzo raccomandata ovvero a mezzo di posta elettronica certificata; con l'avvertimento al terzo che in caso di mancata comunicazione della dichiarazione, la stessa dovrà essere resa dal terzo comparendo in un'apposita udienza e che quando il terzo non compare o, sebbene comparso, non rende la dichiarazione, il credito pignorato o il possesso di cose di appartenenza del debitore, nell'ammontare o nei termini indicati dal creditore, si considereranno non contestati ai fini del procedimento in corso e dell'esecuzione fondata sul provvedimento di assegnazione […].

Nella sostanza, tale pignoramento consiste nella notifica, sempre mediante Ufficiale Giudiziario, di un atto di citazione a data fissa al debitore e al terzo (normalmente, prima al terzo e, solo in un momento successivo, al debitore per evitare che possa distrarre i beni e rendere infruttuosa la procedura) con il quale si invita il terzo a dichiarare i beni del debitore da Lui posseduti.

Questi dovrà dunque inviare, al legale del creditore, una comunicazione con la quale specifica gli importi in Suo possesso e con la quale dichiara di vincolare, ossia bloccare, l’importo richiesto aumentato del 50 % a copertura delle spese di procedura.

Sarà a questo punto onere del legale del creditore, entro 30 giorni dalla restituzione degli atti notificati, iscrivere a ruolo in Tribunale la procedura e, all’udienza fissata, richiedere l’assegnazione delle somme pignorate.

Come si è detto, questa è la procedura esecutiva normalmente più fruttuosa, per vari ordini di ragioni.

La prima in quanto, sicuramente, non si è “in balia” del debitore, ma è il terzo che, confermato il possesso di beni del debitore, dovrà evitare di effettuare i pagamenti e vincolare le somme: poiché peraltro, in caso di mancata dichiarazione, a norma del già citato art. 543 c.p.c., le somme si intendono non contestate, è sempre interesse del terzo dichiarare il vero e bloccare le somme in suo possesso.

In secondo luogo poiché normalmente si effettua un pignoramento presso terzi quando si è già a conoscenza di redditi certi del debitore: nel caso di locazioni, per esempio, o in quello del pignoramento di 1/5 dello stipendio o della pensione (pur se con i limiti di cui sopra).

Anche nel caso di pignoramento di conto corrente è assai facile reperire saldi attivi (sempre con le cautele già specificate nella prima newsletter, ossia cautelarsi al fine di non far aumentare il proprio credito ed agire velocemente).

Tale procedura, si ribadisce, è quella che prediligo, dati i costi non elevati, la snellezza e rapidità della procedura oltre, cosa più importante, le più facili possibilità di recupero del credito.

Il pignoramento immobiliare

In realtà si tratta della procedura, oltre che più invasiva nei confronti del debitore, anche più costosa, lunga e macchinosa.

A norma dell’art. 555 c.p.c. “Il pignoramento immobiliare si esegue mediante notificazione al debitore e successiva trascrizione di un atto nel quale gli si indicano esattamente, con gli estremi richiesti dal codice civile per l'individuazione dell'immobile ipotecato, i beni e i diritti immobiliari che si intendono sottoporre a esecuzione, e gli si fa l'ingiunzione prevista nell'articolo 492.

Immediatamente dopo la notificazione l'ufficiale giudiziario consegna copia autentica dell'atto con le note di trascrizione al competente conservatore dei registri immobiliari che trascrive l'atto e gli restituisce una delle note.

Le attività previste nel comma precedente possono essere compiute anche dal creditore pignorante, al quale l'ufficiale giudiziario, se richiesto, deve consegnare gli atti di cui sopra”.

Nella sostanza, accertato tramite visura catastale che il creditore sia proprietario di un immobile e, soprattutto, che lo stesso sia libero da pesi o vincoli (es. ipoteca della banca), si può agire notificando un apposito atto con cui l’Ufficiale Giudiziario pignora l’immobile del debitore.

Il pignoramento, una volta restituito l’atto, dovrà essere trascritto presso la conservatoria e la relativa nota di trascrizione dovrà essere depositata in sede di iscrizione a ruolo della procedura in Tribunale entro 15 giorni dalla restituzione dell’atto notificato.

Sarà poi possibile richiedere al Giudice la vendita dell’immobile: dovrà, entro 60 giorni dalla richiesta, essere depositata la relazione ventennale sull’immobile redatta da Notaio ed il Giudice nominerà, prima, un perito per la valutazione dell’immobile e, successivamente, un incaricato per la vendita all’asta dello stesso.

Alla vendita dell’immobile verranno assegnati al creditore gli importi dovuti aumentati di tutte le spese sostenute per la procedura.

Come si può comprendere, la procedura è costosa in quanto è necessario l’intervento di vari professionisti (avvocato, Notaio, Perito, Custode) e macchinosa: sconta peraltro il rischio che l’immobile pignorato non venga compravenduto perché, ad esempio, non interessante.

E’ chiaro che, in caso di vendita, il creditore recupererà, oltre al proprio credito, tutte le spese sostenute ed anticipate, ma l’incertezza della vendita dell’immobile e le lungaggini della procedura non sono sufficienti a decidere di intraprendere un pignoramento immobiliare.

Per tali ragioni, ritengo opportuna tale procedura solo in caso di crediti molto elevati e, comunque, solo una volta accertato – anche mediante indagini investigative – l’impossibilità di aggredire in altro modo il debitore.

******

Questi i mezzi forzosi a disposizione del creditore che, ottenuto un titolo giudiziario, non ottiene il pagamento di quanto a Lui spettante.

La rassegna in tema di recupero del credito proseguirà, con le prossime newsletters, affrontando casi specifici e risolvendo le questioni più comuni.

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

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