The enforcement procedure promoted on a notarial mortgage must be suspended when the same, providing that the sum is immediately returned by the borrower to the lender, is not accompanied by a further document certifying the release of the sum in the solemn form provided for by the art. 474 cpc (former Cass. 12007/2024).
“The request for suspension can be accepted, due to the principle recently affirmed by the Court of Cassation, according to which “in the event that a complex contractual agreement is stipulated in which a Bank grants a sum as a loan and actually disburses it to the borrower (even through simple credit, without material delivery of the money) but, at the same time, it is also agreed that this sum is immediately and fully returned by the borrower to the lender (and this is acknowledged in the contract), with the understanding that it will be released in favor of the borrower only upon the occurrence of certain conditions, although a real loan contract must be recognized as regularly executed , however, must be excluded, pursuant to art. 474 cpc, that from the overall contractual agreement stipulated between the parties there is a current obligation on the part of the borrower to repay the sum itself (which has already returned to the lender’s assets), as this obligation arises – by will of the parties themselves – only when the sum in question is subsequently released in his favor and enters his assets again; consequently, it must also be excluded that such a contract constitutes, in itself, an enforceable title, as a further act is necessary, necessarily consecrated in the forms required by the art. 474 cpc (public deed or authenticated private deed) which certifies the effective release of the sum already borrowed (and re-transferred to the lender) in favor of the borrower, only following the latter’s resurgence of the obligation to refund of that sum” (see Cass. Civ., section III, 03 May 2024, n. 12007); this principle which appears applicable to the case in question, taking into account that in relation to the restriction placed – in favor of the lending credit institution – on the borrowed sums (see art. 2 of the contract) no subsequent document – drawn up in the form of the public deed or authenticated private deed – which certifies the release of the aforementioned sums in favor of the borrower”.
