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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La personne doit également avoir des notions de psychologie afin de déterminer la part de sorcellerie et celle de troubles psychologiques fréquents chez les patients. La personne doit posséder une bonne hygiène de vie, notamment spirituelle puisqu’il n’est pas inutile de rappeler que le succès de la « roqya » dépend de Dieu. Ces critères sont difficilement évaluables, surtout par une personne qui est affectée par un mal-être, quelle que soit sa source. C’est pourquoi les proches doivent accompagner la personne dans la recherche d’un soignant qualifié et reconnu comme tel par des référents religieux de la localité (imam, responsables associatifs, etc.). De manière générale, le soignant doit posséder des qualités déterminées que nous pouvons synthétiser de la manière suivante. Il doit : être en capacité de lire le Coran, croire avec certitude au Coran, être empreint de piété, connaître les pièges et les caractéristiques du diable et des djinns, connaître la méthode prophétique de la « roqya », disposer de connaissances de base en psychologie, avoir la conviction que le succès de sa thérapie dépend de Dieu. A l’exception de la première exigence, il semble difficile de vérifier les autres conditions dans le cadre d’un entretien téléphonique avec une personne que nous n’avons jamais rencontrée, même si elle se présente sous le titre de « cheikh » ou d’un imam. Par conséquent, ces conditions soulignent une première limite quant au recours à la « roqya » par téléphone. Par ailleurs, à l’instar de tout médecin, le soignant doit, avant de prodiguer des conseils ou une médication, procéder à une consultation. Ainsi, un environnement adéquat est indispensable pour la réalisation d’une « roqya ». Il est enfin inconcevable qu’un médecin puisse vous affirmer par téléphone connaître votre maladie et attester pouvoir vous guérir. Vous auriez plus que des doutes sur ce prétendu médecin. II- Un environnement propice et la réalisation d’une consultation préalable à la réalisation d’une « roqya » Il est intéressant de noter que, dans son ouvrage « Comment se protéger des djinns & satan », Wahîd ‘Abdussalâm Bâli évoque l’importance du climat pour réaliser une roqya[2]. Ainsi, il expose les points suivants : « 1. Préparer le climat adéquat en faisant par exemple sortir les images et les statues de la pièce où on va soigner le malade, pour permettre aux anges d’y entrer. 2. Débarrasser le sujet de tout ce qu’il peut porter sur lui comme talismans ou amulettes et les brûler. 3. Éteindre tout ce qui peut émettre le son de la musique et des chants. 4. Vider le lieu de tout ce qui comporte une infraction à la shari‘a à savoir, par exemple, la présence d’un homme qui porte de l’or ou une femme qui ne porte pas le voile légal – al-hijab. 5. Donner au malade et à sa famille une leçon de dogme de façon à ce que leurs cœurs ne soient pas attachés à un autre qu’Allah. 6. Leur faire savoir que la façon de soigner est différente de celle des sorciers et des charlatans et que le Coran recèle guérison et miséricorde, comme l’a informé Allah le Puissant et le Majestueux. 7. Diagnostiquer son cas : pour cela poser des questions au malade pour s’assurer de la présence de tous les symptômes (…) ». Or, dans les témoignages communiqués, l’interlocuteur qui se présente comme soignant ne pose aucune question aux personnes. Il débute ainsi la « roqya » directement par une récitation du Coran. En outre, il est intéressant de souligner que dans l’un des témoignages communiqués à l’UFCM, l’interlocuteur demandait à la personne de remplir successivement des verres de lait, d’huile, d’eau etc. et de les poser par la suite sur la table de la salle à manger. Au point que la personne s’est retrouvée avec une multitude de verres posés sur la table. Le comble est que la personne ignorait ce qu’elle devait en faire lorsqu’elle a pris conscience de la tromperie. Nous constatons par conséquent qu’une « roqya » ne peut être réalisée dans un environnement quelconque. En effet, une procédure de diagnostic est essentielle. Nous pouvons à titre d’exemple faire le parallèle avec un rendez-vous chez le médecin ; ce dernier ne peut vous prescrire une ordonnance sans au préalable vous avoir ausculté et interrogé sur les différents symptômes que vous ressentez physiquement. A défaut, au lieu de guérir vous allez aggraver vos maux. Cette attitude vigilante du médecin traitant doit se retrouver lorsque nous envisageons le recours à une « roqya ». Pour illustrer ce propos, nous citerons l’exemple de l’anthropologue, spécialiste de l’islam européen, Farid El Asri, chercheur associé au Centre Jacques Berque, qui nous rapporte une situation alarmante suite à une « roqya » : « Une jeune femme en Belgique (…) est morte suite à une tentative d’exorcisme. Pendant les séances, les fkihs (imams) utilisent normalement de l’eau « coranisée ». Pour cette jeune femme, prétendument stérile, les exorcistes ont carrément plongé son visage dans l’eau et quand elle tentait d’en sortir pour respirer, les guérisseurs estimaient qu’il s’agissait du jinn qui l’habitait et ils replongeaient son visage dans l’eau. Pendant le procès, la famille de la défunte s’est présentée comme musulmane et a accusé ces pratiques d’être extérieures à l’islam quand les guérisseurs estimaient qu’ils avaient simplement fait ce qu’ils pouvaient. Le fait de recourir trop systématiquement au fkih risque également de faire passer une crise d’épilepsie, par exemple, pour une crise de possession. »[3] Nous allons aborder enfin la dernière problématique, celle relative aux honoraires du soignant. III- Les honoraires du soignant Le Prophète, bénédictions et salut sur lui, « a agréé les Compagnons qui ont été payés pour la roqya ». Il est dès lors autorisé de rémunérer un soignant en contrepartie d’une prestation. Toutefois, cette rémunération doit être raisonnable et surtout clairement définie avant le traitement. En outre, nous ne pouvons que souligner et rappeler que, si la roqya est réalisée dans un cadre sérieux, il convient de procéder à toutes les déclarations administratives. Comme pour tout contrat, vous devez exiger un document écrit et le praticien doit préciser quels sont ses engagements exacts afin d’éviter tout litige postérieur. Malheureusement, tous les témoignages transmis à l’UFCM soulignent que l’interlocuteur insiste à plusieurs reprises sur la gratuité de la prestation. Or, dans les faits, cette dernière est payante puisque le coût de la communication est surtaxé. Ainsi, l’une des victimes qui nous a contacté, s’est retrouvée avec une facture téléphonique (hors forfait) de 1800 euros. Par conséquent, nous constatons que ces « roqyas » gratuites sont fondées sur la technique dite du « call-back » qui consiste à amener une personne à rappeler un numéro surtaxé, information qui lui est bien évidemment dissimulée. Une « roqya » peut être payante à condition de respecter un cadre prédéterminé, fondé sur l’information et la transparence des honoraires. En conclusion A la lumière des développements susvisés, l’UFCM appelle d’une part à une régulation du métier de la pratique de la « roqya », d’autre part, à la vigilance de chacun à ne pas céder à la tentation d’une « roqya » qui ne serait pas réalisée dans les conditions requises et qui pourrait produire des effets inverses. Au-delà du cadre spirituel ou juridique, les divers témoignages reçus et étudiés par l’UFCM ne peuvent pas nous laisser indifférents à la question suivante : pourquoi des personnes sont-elles amenées à accepter aussi facilement une « roqya » par téléphone ? Est-ce la gratuité qui a déterminé leur choix ? Certes le mal-être produit par cette société est de plus en plus grand. Nous vivons une époque où les êtres sont de plus en plus coupés des signes de Dieu et vivent un rythme de vie effréné. Ces affaires sont révélatrices des maux les plus profonds qui touchent la communauté musulmane. Par ailleurs, comme l’ensemble des rites islamiques (hajj, halal, pompes funèbres) censés nous rappeler les limites qui déterminent la voie vers Dieu, nous constatons que leur marchandisation trahit de plus en plus leur vocation première. Suffit-il qu’un interlocuteur se présente à nous comme un « cheikh » ou un imam et qu’il nous propose une « roqya » gratuite pour l’accepter aussitôt Ne devrions-nous pas tous nous interroger sur le fait qu’il y ait des musulmanes et des musulmans aussi isolés et aussi ignorants de leur propre religion pour être trompés aussi facilement ? Sommes-nous devenus si dépendants des Hommes que nous en oublions de nous adresser directement à Dieu pour solutionner nos malaises ? Autant de questions que chacun d’entre nous a la responsabilité de se poser. En effet, aucun de nous ou de nos proches ne sont à l’abri d’une telle tromperie. Il convient enfin de rappeler que la « roqya » est un remède précis et qu’elle ne peut se faire que sous certaines conditions et surtout qu’elle demeure l’exception à la règle, qui est de toujours s’adresser directement à Dieu. Avant de recourir à une « roqya », il convient de faire une introspection sur ses propres pratiques cultuelles et de revenir.

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