By Michael Mora, AMTF Lawyers
"The bulk transfer of receivables, as governed by Article 58 of the Consolidated Banking Act, requires that notice of the transfer be given through publication in the Official Gazette. Therefore, the law does not require the transfer agreement to be produced or presented to the assigned debtor."
“[Proof of the transfer of the disputed credit] does not necessarily have to be provided by producing the transfer agreement in court, as the concept of identifiability can also be satisfied by negative and indirect criteria. In the case in question, however, the literal wording of the notice published in the Official Gazette leaves no room for doubt.”
“Therefore, it was not necessary to produce the contract in court, as it was possible to ascertain with certainty that the disputed credits had been transferred by reading the announcement published in the Official Gazette.”
This is the principle expressed by the Court of Forlì, Judge Maria Cecilia Branca, in judgment no. 79 of February 20, 2025.
The case originated from an opposition to an injunction brought by a company and its guarantors against the assignee of the credit, in which, among other things, the lack of proof of ownership of the credit by the assignee was objected to.
The plaintiff had merely objected to the failure to produce the transfer agreement in court, complaining that the notice published in the Official Gazette of the Italian Republic alone was not a suitable source of evidence to prove the alleged transfer of the credit.
The judge of the Court of Forlì, on the other hand, fully agreed with the defense argument of the opposing creditor, who had defended itself by arguing that the notice published in the Official Gazette was sufficient to prove its ownership of the credit if, from a simple reading of the notice, it was possible to unequivocally identify the inclusion of the assigned credit.
In the case in question, the disputed transfer notice clearly stated that all receivables deriving from loans, current accounts, and, in general, credit facilities arising during a specific period (1960-2019) and qualifying as "impaired receivables" had been transferred.
The judge concluded his reasoning by agreeing with the case law on the unsuitability of producing only the notice of assignment "only and exclusively where there is uncertainty about the proof of ownership of the credit by the assignee and a specific objection is raised on this point."
For this reason too, the Court rejected the opposition, confirming the injunction in its entirety.
Source: Ex Parte Creditoris
