Orsingher Ortu – Avvocati Associati
Most Read: Contributor Italy, November 2023
Italy:
The Italian Supreme Court On Mortgage Claw-Back
14 November 2023
Orsingher Ortu – Avvocati Associati
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On 26 July 2023, the Italian Supreme Court issued its judgment
in case No. 22563/2023 upholding the principle pursuant to which a
mortgage can be clawed back even if granted to secure a mortgage
loan (mutuo fondiario), when the proceeds of the mortgage
loan are used to repay the exposure of the borrower's bank
account towards the bank as part of a transaction meant to reduce
such exposure. The Italian Supreme Court further clarified that,
since this transaction involves a non-ordinary satisfaction of the
payment obligation, the loan loses its qualification as a mortgage
loan (mutuo fondiario) and consequently the mortgage
cannot benefit from the exemption against claw-back actions
provided by Article 39.4 of the Italian Consolidated Banking
Act.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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