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What are the possible solutions to deal with this situation?
- Plan of the consumer: the consumer will establish, together and in agreement with the creditors, of the small installments that will have to pay in order to arrive at the total payment of the debts;
- Asset settlement: the consumer knows that he has no possibility to pay small monthly installments, so he decides to sell his mobile or real estate assets to pay off all the debts he had contracted.
Fate the debtor can be admitted to the procedure that will lead him to get rid of the residual debts he has towards the creditors. However, the debtor consumer must meet certain conditions to have the debit:
- have cooperated in the regular and effective conduct of the procedure;
- having provided all the information and documentation useful for the procedure;
- having worked for the successful performance of operations;
- have not benefited from the benefit of the debt in the 8 years preceding the request;
- not having been definitively convicted, by a final sentence, for the violation of the rules and principles that govern the regulation of the agreement or of the consumer’s plan;
- in the 4 years following the filing of the application for liquidation, have carried out a productive activity of income appropriate to their skills and the market situation;
- have sought and not refused without justified reason, in the 4 years following the filing of the application for liquidation, job offers.
The debtor must also have satisfied, at least in part, the creditors with whom he had contracted debts at a time prior to the decree with which the liquidation proceeding was declared open. Then there are some cases, identified by the law, in which the debt is excluded:
- it was the debtor who contributed to the situation of over-indebtedness, caused by a negligent credit claim, which was proportional to the capacity of his family budget ;
- the debtor, in the five years preceding the liquidation procedure or in the course of the same, has put in place acts in fraud of creditors, payments or other deeds of their assets or simulations of pre-emptive securities, with the aim of favoring some creditors to harm others.
Moreover, the debt can not operate for debts arising from maintenance and food obligations or for debts for non-contractual damage, as well as for penal and administrative fines that are not ancillary to the debts covered by the termination procedure. It is not possible to use this procedure even in the case of tax debts which, despite having a prior cause to the opening degree of the procedure, were subsequently ascertained as a result of the knowledge of new elements. In addition, the debtor must lodge an appeal with the court within the year following the close of the liquidation procedure. At this point, the judge must hear creditors who are not fully satisfied and check the eligibility conditions of the debt. In the presence of the conditions for the granting of the debt, the judge declares the receivables not fully satisfied against the debtor uncollectable, however, without prejudice to the possibility of proposing a claim. Finally, it should be noted that the provision with which the debt was granted may be revoked at the request of the creditors at any time by the judge when it is subsequently established that there are grounds for exclusion of the benefit, or when it turns out that:
- it has been intentionally or with gross negligence increased or decreased the liabilities;
- a substantial part of the assets has been subtracted or hidden;
- non-existent activities have been simulated. Thus the concept of credit liability is introduced.
This procedure provides for criminal consequences. In fact, the new regulation reiterates the provisions of the previous article 19 for the undue use of these instruments, both by the debtor and by the professional member of the crisis composition organization in the context of the certifications he is required to accomplish, thus configuring the crimes of false claims and false declarations.