Beware the risk of credit duplication: when the SME Guarantee Fund indemnifies the bank and the asset is subsequently sold, the surety may end up paying twice.
"The proceeds from the sale of the asset subject to a resolved financial leasing contract must be imputed to reduce the total original debt."
Att. Carlo Carta
Expert in Civil, Banking and Real Estate Law
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In the field of financial leasing and public guarantees (such as the SME Guarantee Fund), the intertwining of recovery actions and asset repositioning on the market can create true "short circuits" of protection for guarantors.
What happens if the real estate asset subject to a resolved leasing contract is sold to third parties by the leasing company after the public Fund has already indemnified the bank and initiated enforced collection proceedings against the surety?
This situation, seemingly complex, hides a concrete risk of credit duplication that can severely affect co-obligors and sureties. Understanding the underlying legal mechanisms is essential to protect one's rights.
According to consolidated jurisprudence and the cardinal principles of our legal system (including Art. 1526 of the Italian Civil Code), the repositioning on the market of the asset subject to a resolved financial leasing contract must produce positive effects also for the user and their guarantors.
Art. 1526 Italian Civil Code and General Principles
Simply put: the proceeds from the sale of the asset must be imputed to reduce the total original debt.
When the leasing contract is resolved, the asset returns to the leasing company's availability, which may then sell it.
The price obtained from the sale must reduce the overall debt exposure of the user and guarantors.
Art. 1526 of the Italian Civil Code governs the resolution of sale contracts with retention of title, but the principles of correlation between performance and counter-performance and prohibition of unjust enrichment (Art. 2041 Italian Civil Code) mandate the imputation of proceeds.
The problem arises when the timing of justice and collection proceedings do not align with those of the asset sale. Here is how the critical situation develops:
The public Guarantee Fund indemnifies the leasing institution and subrogates in the credit, initiating enforced collection proceedings (through tax collection notices and subsequent attachments) against the surety for the full amount paid out.
The Fund becomes the creditor in place of the bank
Subsequently to the issuance of the tax collection notice and the initiation of enforcement actions, the leasing company sells the real estate to third parties, cashing in the proceeds.
This sale may occur months or years later
If the proceeds from this sale are not promptly remitted to the public Fund and, consequently, the latter does not recalculate the enforcement claim against the guarantor, an evident profile of unjust enrichment and an illegitimate duplication of the enforcement title is established.
Concrete risk: the surety pays twice!
Leasing Resolved
Fund Indemnifies Bank
Tax Collection Notice
Attachments
Asset Sale to Third Parties (proceeds ≠ recalculation)
In the presence of a subsequent event such as the asset sale, it is essential to act promptly through extrajudicial (and, if necessary, judicial) channels:
Request the accounting report of the sale pursuant to Art. 119 of the Italian Banking Act from the leasing company. This document is essential to verify the actual amount received from the asset sale.
Art. 119 Italian Banking Act (T.U.B.) - Consumer's right to contractual transparency and reporting of operations
Send formal notice to involved parties (leasing company, Guarantee Fund, Revenue Collection Agency) to immediately recalculate the remaining debt, taking into account the sale proceeds.
The notice must be formalized via certified email (PEC) or registered mail with acknowledgment of receipt
Obtain the formal declaration of (partial or total) tax roll relief and the resulting reduction or waiver of ongoing enforcement proceedings (such as third-party attachments).
Result: Extinction or reduction of ongoing enforcement proceedings
Accounting transparency and coordination between financial intermediaries and public fund managers are not options, but precise legal obligations protecting co-obligors.
Attorney at Law | Civil, Banking and Real Estate Law
Over 25 years of experience. Assistance in leasing operations, disputes with public guarantee funds and surety protection. Offices in Milan and Cagliari, Italy.
If the Guarantee Fund has indemnified the bank and the asset has been sold, you may be entitled to a reduction or cancellation of the credit. Contact us for a free assessment.
BankingLaw FinancialLeasing SMEGuaranteeFund Surety TaxCollection CreditProtection BankingDispute
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