Law 176/2020, which entered into force on 25 December 2020, transforming Legislative Decree 137/2020, introduced important changes in the discipline of procedures for resolving the over-indebtedness crisis contained in Law 3/2012.
In particular, Article 4b introduced important changes to the content of the report of the crisis composition body which must be attached to the proposed consumer plan ex Article 9, section 3 bis, Law 3/2012.
Prior to the intervention of Law 176/2020, it was anticipated that a detailed report with the indication:
- the causes of indebtedness and the diligence employed by the consumer to voluntarily assume the obligations;
- the explanation of the reasons for the debtor’s inability to comply with the obligations assumed;
- consumer solvency over the past five years;
- the possible existence of debtor’s deeds challenged by creditors;
- of the opinion on the completeness and reliability of the documentation submitted by the consumer accompanying the proposal, as well as on the probable suitability of the plan with respect to the settlement alternative.
The new paragraph 3 bis of article 9 L. 3/2012 provides instead that the crisis resolution body reportwhich will be attached to the consumer’s plan, in addition to investigating the causes of indebtedness, the diligence of the debtor, the causes of incapacity of the same to fulfill its obligations, the alleged indication of the costs of the procedure, is also expressed in the solvency assessment by the lender.
This is an important novelty: the OCC is asked to verify that, for the purpose of granting the loan, the lender has taken into account or not the solvency of the assessed debtor, also providing the criteria for the realization. of the check.
In other words, the body that drafted it must ensure that the lenderin the granting of the credit the possibility of the financier to meet the commitments related to the granting of the loantherefore considering their income and the sums necessary to maintain a decent standard of living.
To assess this last aspect, the legislator proposes a quantification not lower than the amount of thesocial subsidies multiplied by a parameter corresponding to the number of relatives on the ISEE equivalence scale to which it refers Decree of the Generalitat 05.12.2013 n. 159.
He consequences of this verification are highlighted by 3-ter paragraph of Article 12 L. 3/2012: “The creditor who has culpably caused the debt situation or his aggravation or, in the case of an agreement proposed by the consumer, which violates the principles referred to in Article 124-bis of the revised text referred to in Legislative Decree no. 385, it cannot present opposition or claim during the homologationeven if they are dissidents, nor to allege causes of inadmissibility that do not derive from bad behaviors of the debtor.“.
In fact, the creditor who has culpably caused the debt situation or its aggravation it cannot present opposition or claim during the homologationeven if it is discretionary, nor to allege causes of inadmissibility that do not derive from a bad behavior of the debtor.
From this consequence we understand the importance given to it assessment of the crisis resolution body that he must pay special attention to the figure of the creditor he has guiltily determining or aggravating the over-indebtedness situation of its counterpart, if any omittedas a lender, of vproperly verify the creditworthiness of the borrower.
With regard to the other aspects on which the OCC report should focus, it may be appropriate for the OCC to acquire them. over-indebtedness a descriptive report of the causes that led him to the difficult situation where it is located: there may be reasons related to the loss of value, health reasons, family reasons, need to face an unexpected expense.
The composition body will have to illustrate them and, therefore, also express itself on the diligence used by the consumer in the voluntary assumption of obligations and on the completeness and reliability of the documentation provided by the debtor in support of his application.