With the ruling in question, the Court of Spoleto stated that the TFR accrued must be acquired through the controlled liquidation procedure and cannot remain available to the debtor as all of his assets constitute assets of the liquidation until its completion or, at least until the debt is discharged[1].
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1. Conduct of the procedure.
With appeal dated 03.27.2024, the debtor requested the opening of the controlled liquidation procedure of his assets pursuant to art. 268 CCII. The total amount of debts was equal to €913,487.28 arising mainly from sureties given between 2001 and 2007 in favor of companies that subsequently went bankrupt. The assets consisted of income from an employee, equal to €1,600.00 net per month, and income from technical consultancy with VAT number (€9,447.00 turnover in 2022 and €15,166.00 turnover in 2023). The other liquid assets were almost nil: the applicant was in fact the holder of two current accounts, one with a negative balance and the other with a balance equal to €685.62 as of 31.12.23. He was also the owner of a nominal shareholding equal to 11% of a company now declared bankrupt in 2014. The appellant was not the owner of real estate or registered movable property. He was the owner of an insurance policy expiring in the year 2026, which could not be acquired in the procedure as it would have guaranteed reimbursement only in the event of specific situations (death, incapacity, etc. of the policyholder). Finally, the debtor could make the TFR available[2] already accrued and payable after the opening of the controlled liquidation procedure. In particular, in the CUD 2023 for the year 2022, a gross TFR of €2,839.54 (approximately €2,200.00 net) was indicated to be considered acquirable in the procedure as a “future asset”[3] [3], subject to authorization from the Judge and to the extent established by the Judge. Having ascertained the objective and subjective conditions, as well as the consistency of the obligations previously contracted and the evident insufficiency of the debtor’s movable and immovable assets, the Judge, also in light of the detailed report of the OCC, deemed the conditions to be met for the opening of the controlled liquidation procedure[4] acquiring a portion of the monthly salary (taking into account the debtor’s family unit and the expenses necessary for survival) and the severance pay as a “future asset”.
2. Further information.
With reference to the acquisition of TFR upon controlled liquidation, however, it is necessary to focus on a threefold aspect: the duration of the controlled liquidation; the amount of TFR subject to liquidation; the actual collectability of the severance pay. As for the duration, it should depend on the time required for the liquidation of the assets (meaning that it could not be closed as long as there are assets to liquidate). However, the CCII introduced the possibility for the debtor to obtain debt relief after a certain period of time (three years) even if the asset liquidation activity has not ceased: art. 282 CCII provides for the so-called debt discharge by right, i.e. the possibility of closing the still pending liquidation early by obtaining automatic debt discharge with a reasoned decree from the Court after three years from the opening of the procedure[5]. It follows that, once debt relief has been declared, the liquidation cannot continue for the acquisition of future assets not yet accrued at that time. As regards the second aspect, i.e. the amount of severance pay subject to controlled liquidation, art. 268 co. 3 lett. a) CCII makes an explicit reference to the art. 545 cpc In light of this postponement, it can be deduced that the TFR is relatively non-attachable (to the extent of four fifths), while it can be seized for the remaining fifth. Therefore, in the controlled liquidation of the assets of the over-indebted, the TFR can be included in the assets to be liquidated within the limits of one fifth[6]. Finally, with reference to the actual collectability of the TFR, it is specified that it is the liquidator’s responsibility to verify, during the procedure, the conditions for its collectability[7]. It is therefore necessary to place emphasis on the employment relationship, which must not have been established in recent times, on its prospect of resolution in a medium-short period of time[8], on the amount of the amount susceptible to advance, on the actual possibility of obtaining the advance of the sums set aside. Collectibility must also be verified with reference to time: the TFR, or rather 20% of it, can be included, as future utility, in the mass to be liquidated only if it becomes collectible within three years from the opening of the liquidation (deadline for ‘discharge)[9].
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[1] In accordance with: Court of Bologna, 02/22/2023.
[2] As is known, severance pay is governed by art. 2120 cc and constitutes a credit of the employee towards his employer. It accrues during the employment relationship through the setting aside of a portion of the salary and is payable, not only upon termination or termination of the employment relationship, but also when the worker requests an advance. The TFR, falling into the category of “indemnities relating to the employment relationship” referred to in art. 545 co. 3 cpc, can be subject to foreclosure. Therefore, subject to authorization from the GD and to the extent established by him, the severance pay is to be considered acquirable in the procedure as a “future asset”.
[3] The “future good” is everything that does not currently exist, but which may come into existence and therefore which may enter the debtor’s assets. It can be either things that do not exist in nature (e.g. property to be built, inherited, donated); and of goods that come from another good (such as fruit former art. 820 cc and which in turn are natural (agricultural/animal/mining/etc. products) or civil (interest/royalties/income/etc.); both of things already existing in nature but which do not belong to anyone (a good that has never been the property of anyone, res nulliusor an abandoned good, res derelicta) and whose property can be acquired through occupation. Even a right that will exist only when a certain condition occurs can be considered a future good. Well, by borrowing the principle of financial responsibility into over-indebtedness procedures former art. 2740 cc, which provides that “the debtor is responsible for the fulfillment of the obligation with all its present and future assets“, the controlled liquidation can (and must) confiscate the entire assets that the debtor possesses at the time of the opening of the procedure, and any subsequent assets that will come into existence in the three years following the opening (time limit of the procedure) or until that debt relief does not occur.
[4] On this point, the Court of Macerata, with the provision of 10.19.22 approving an agreement for the settlement of the crisis former L. 3/12 (now a minor agreement), considered the proposed agreement more convenient, with which the debtor made available almost entirely the credit from severance pay already accrued, compared to the liquidation alternative which would have seen this credit for the part (i.e. four fifths) excluded.
[5] See: Trib. Bologna n. 25/24; Court of Bologna n. 32/23; Court of Padua 20.10.22. And this by virtue of EU Directive no. 1012/19 and the recent decision of the Constitutional Court n. 6/24 subject of in-depth analysis by A. ZURLO, in Savings Law, “On the duration of the liquidation: the protection with variable geometries in the ruling of the Constitutional Court (n. 6/2024)”, https://www.dirittodelrisparmio.it/2024/01/23/sulla-durata-della-liquidazione- judicial-protection-of-variable-geometries-in-the-pronouncement-of-the-constitutional-court-n-6-2024/. It should be noted that the debt relief effect ex law referred to in the art. 282 CCII knows some mitigations. First of all, the same rule in question provides for a preclusion from debt discharge for the over-indebted person who has contributed to determining or worsening his/her state of crisis or insolvency, through grossly negligent conduct or conduct aimed at defrauding the creditor class. Secondly, the regulatory provision makes an explicit reference to the impeding causes referred to in the art. 280 CCII. Finally, the provision with which the Court declares the debtor’s discharge is always subject, within thirty days, to a complaint by the creditors.
[6] For the sake of completeness, it is specified that, with reference to the regulation of the discharge of the insolvent debtor, the art. 283, co. 2, CCII does not make any express reference to art. 545 cpc, with the consequence that in these cases the liability limit of only one fifth of the severance pay could not be invoked, since the entire sum accrued had to be calculated. This entails, in the opinion of the writer, an unjustified violation of the constitutional principle of equality, referred to in art. 3. The incompetent over-indebted debtor would, in fact, be unjustifiably disadvantaged compared to all other over-indebted debtors, as well as compared to the enforced debtor.
[7] See Trib. Bologna, n. 25/24; Court of Bologna, n. 163/23.
[8] See Rimini Trib., 23 January 2024.
[9] It will possibly be possible to verify the moment of termination of the employment relationship and the collectibility of the severance pay by comparing the contribution statement issued by the pension institution.
