Have you sold a good or provided a service and your client hasn’t paid?
Attempts to amicably resolve the dispute have failed? In such cases, it’s essential to know how to act in order to protect your interests and recover the amounts owed as quickly as possible.
Notice of Default
The first step to recover your credit is to place the debtor in default.
This is done by sending the debtor a notice via certified email (PEC) or registered mail with return receipt, demanding payment of the amounts due within a specific period, typically not exceeding 15 days.
If the deadline expires without payment, you may initiate legal proceedings to recover the debt.
Application for an Injunction Order
If the notice of default is unsuccessful, you can proceed with forced debt recovery.
To do so, you need an enforceable title, such as a court ruling or an injunction order (“decreto ingiuntivo”).
The most common and fastest method of debt recovery is to file an application for an injunction order.
Once the application is filed, the judge may:
- grant the request and order the debtor to pay,
- reject the application, or
- request additional documentation.
If the injunction order is issued, it must be served to the debtor within 60 days, otherwise it will become ineffective.
The debtor may contest the injunction by filing an objection within 40 days of receiving the notice.
This objection must be filed through a writ of summons before the same court that issued the injunction, which will lead to a standard court proceeding.
Writ of Payment (Precetto)
If the debtor does not object to the injunction order within 40 days of service, the creditor may request the court to make the injunction order enforceable.
Based on the now enforceable decree, the creditor may then draft a writ of payment (“atto di precetto”).
This document warns the debtor to pay within at least 10 days, failing which enforcement proceedings will begin.
Provisionally Enforceable Injunction Order
When the credit is based on promissory notes, bank checks, cashier’s checks, stock exchange settlement certificates, or notarial/public documents, the judge may declare the injunction order provisionally enforceable immediately upon issuance.
This means the creditor may immediately proceed to serve the writ of payment and the injunction order, without waiting for the 40-day term.
The judge may also grant provisional enforceability if a delay would cause serious harm (e.g., risk of debtor bankruptcy or asset concealment), or if the creditor submits signed documentation proving the claim (such as a written acknowledgment of debt).
Enforcement (Pignoramento)
After at least 10 days from service of the writ of payment, you can proceed with forced enforcement against the debtor.
The writ becomes ineffective if enforcement is not initiated within 90 days of service.
The enforcement can be carried out using three types of seizure:
- Movable property seizure (pignoramento mobiliare),
- Real estate foreclosure (pignoramento immobiliare),
- Third-party garnishment (pignoramento presso terzi).
Beware of Statutes of Limitations
If a right is not exercised for an extended period, it may become time-barred, meaning it is extinguished by statute.
In that case, the debtor is no longer legally obliged to pay, and the creditor can no longer claim the debt.
Rights are subject to specific limitation periods defined by law. The general limitation period is 10 years, but there are many exceptions (for example, claims arising from shipping and transport contracts expire in one year).
It is therefore crucial to act promptly to recover your receivables, with the support of experienced professionals like those at Rup Legal and Consulting.
