La composizione della Crisi da Sovraindebitamento

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La crisi economica globale ha avuto conseguenze drammatiche anche nel nostro paese, dove si sono verificati anche suicidi conseguenti a situazioni di eccessivo indebitamento.

Una volta perso il proprio lavoro, potrebbe non essere più possibile pagare il mutuo alla propria banca, la quale provvederà a richiedere la restituzione immediata dell’intero importo concesso col mutuo e a pignorare limmobile.

In definitiva, talvolta può essere tristemente facile trovarsi in una spirale di debiti da cui può sembrare davvero impossibile uscirne se non con soluzioni estreme quali il suicidio o l’accesso a prestiti usurari.

LA LEGGE N. 3/2012

Per far fronte a situazioni di vita reale come quelle sopra illustrate, è stata varata la Legge 27 gennaio 2012, n. 3 (c.d. Legge sul “sovra-indebitamento” o “salva suicidi”), nonché la successiva Legge 17 dicembre 2012, n. 221 di conversione del Decreto legge 18 ottobre 2012, n. 179.

L’intento della nuova legge è quello di consentire a taluni soggetti non fallibili in grave crisi e difficoltà economiche (come professionisti, pensionati, piccoli imprenditori o piccole società artigiane) di avviare una procedura presso il Tribunale di residenza del debitore volta a conseguire la liberazione integrale dai propri debiti, mediante un pagamento rateale concordato nonché con un forte stralcio dell’esposizione debitoria complessiva.

* * *

Analizzando nel dettaglio le possibilità introdotte dalla legge n. 3/2012, si possono distinguere tre diverse procedure: il piano del consumatore, l’accordo di ristrutturazione dei debiti e la procedura di liquidazione del patrimonio.

1) IL PIANO DEL CONSUMATORE

Il piano del consumatore, in primo luogo, può essere presentato soltanto dai privati consumatori e a tal riguardo l’art. 6 comma 2 lett. b) della L. n. 3/2012 precisa che per "consumatore" deve intendersi il debitore persona fisica che ha assunto obbligazioni esclusivamente per scopi estranei all'attività imprenditoriale o professionale eventualmente svolta.

In buona sostanza, il predetto piano consiste in una proposta fatta dal debitore di pagamento rateizzato dei propri debiti e può anche prevedere la cessione di una parte del patrimonio e uno stralcio della complessiva esposizione debitoria.

E’ approvato e reso esecutivo mediante omologa dal Giudice con propria autonoma decisione e ciò anche a prescindere dal consenso dei creditori del sovraindebitato.

Il Giudice, infatti, quando esclude che il consumatore abbia assunto obbligazioni senza la ragionevole prospettiva di poterle adempiere, ovvero che abbia colposamente determinato il sovraindebitamento omologa il piano disponendo per il relativo provvedimento una forma idonea di pubblicità.

2) L’ACCORDO DI RISTRUTTURAZIONE DEI DEBITI

L’accordo di ristrutturazione dei debiti, invece, può essere presentato da enti e imprese non fallibili ed ha caratteristiche per certi versi molto simili a quelle del piano del consumatore.

L’unica, grande differenza è costituita dal fatto che l’accordo deve essere accettato da tanti creditori i quali rappresentino almeno il 60% di tutti i debiti del soggetto.

Quindi, in questo caso non deciderà soltanto il Giudice ma avranno diritto di voto tutti i creditori.

3) PROCEDURA DI LIQUIDAZIONE DEI BENI

Con la liquidazione del patrimonio, infine, il debitore (privato o soggetto non fallibile) mette a disposizione tutto il suo patrimonio per far fronte al pagamento dei suoi debiti.

Dopodiché un liquidatore nominato dal Tribunale provvederà a vendere tutti i suoi beni ed a pagare, pro-quota, tutti i suoi debiti.

Ebbene, il debitore perde tutti i suoi beni potendo mantenere soltanto:

  1. i beni che, per legge, non possono essere pignorati;
  2. i crediti di carattere alimentare e di mantenimento;
  3. i crediti che non sono pignorabili ai sensi dell’art. 545 del Codice di Procedura Civile;
  4. i frutti derivanti dall’usufrutto dei beni dei figli e i beni costituiti in fondo patrimoniale e i loro frutti;
  5. gli stipendi, i salari e le pensioni che il debitore guadagna con la propria attività, nei limiti di quanto occorre mantenimento della famiglia, così come stabilito dal Giudice.

LA PROCEDURA

Per quanto riguarda poi la procedura da seguire, essa si compone di due fasi:

1) nella prima fase, innanzitutto, l’interessato deve depositare presso la cancelleria della volontaria giurisdizione del Tribunale del luogo ove risiede la richiesta di nomina dell'organismo di composizione della crisi (OCC).

Il soggetto si rivolgerà così all'OCC per illustrare la propria situazione debitoria ed ottenerne da questo la validazione, ovvero una relazione illustrativa che servirà per il prosieguo.

L’assistenza di un professionista (avvocato o commercialista o entrambi) non è obbligatoria ma è auspicabile perlomeno per redigere il piano di ristrutturazione dei debiti da sottoporre all’OCC.

2) Successivamente il soggetto sovraindebitato si recherà alla cancelleria fallimentare del Tribunale del luogo ove risiede allo scopo di presentare la propria proposta validata dall'OCC attraverso la predetta relazione corredata da tutti i documenti necessari all'ottenimento del provvedimento del Giudice

Ricevuta la documentazione, con decreto d’urgenza il Giudice delegato fisserà un'udienza (comunicata all'interessato ed all'OCC) alla quale questi ultimi potranno partecipare.

Tra l’altro, per evitare il rischio di pregiudicare la fattibilità del piano, nel medesimo decreto d'urgenza il Giudice disporrà che non potranno essere avviate nuove azioni esecutive a carico del sovraindebitato ed imporrà la sospensione di tutti i procedimenti esecutivi pendenti (pignoramenti etc.) sino al momento in cui il provvedimento di omologazione diverrà definitivo.

All'esito dell'udienza e dell'esame della documentazione, il Giudice deciderà nel merito e a questo punto il soggetto dovrà mettere in esecuzione il programma presentato (ovviamente solo in caso di omologazione dello stesso).

TEMPI E COSTI

In relazione ai costi della procedura, essi sono piuttosto contenuti in quanto limitati al pagamento di un contributo unificato da € 98,00 e da una marca da bollo di € 27,00 per ciascuna delle due fasi, nonché al pagamento del compenso spettante all’OCC nominato dal Tribunale (anche se esso sarà direttamente inserito nel piano di pagamento rateale dei debiti).

L’assistenza di un professionista nelle varie fasi della procedura non è invece obbligatoria, essendo rimessa alla discrezionalità dell’istante.

Anche i tempi della procedura risultano assai contenuti, rilevato che una volta depositato il piano il Giudice fisserà immediatamente l'udienza (da tenersi comunque entro 60 giorni dal deposito del piano medesimo) e che, ad ogni buon conto, la procedura dovrà definirsi entro sei mesi dal deposito del piano da parte del sovraindebitato.

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