By | אוגוסט 11, 2018

The injurious acts are events that may derive from a state of insolvency or default. These are the judicial mortgage and in this article we will focus in particular on how to proceed with its cancellation.

Judicial Mortgage Cancellation

The documents certifying the injurious acts are registered in the Public Offices and attest to the state of insolvency of the subject or limit the availability in relation to an asset owned by him. Among the types of injurious act there are two different types of mortgage.

Download the detailed information on injurious acts, click here .

The mortgage is a real right of guarantee  that allows to protect the creditor, giving him the power to expropriate specific assets present in the debtor's assets and subject to the guarantee. Depending on its source, the mortgage can be alternatively distinguished in:

  • voluntary , or desired by the will of one or both parties. It is usually established through a contract drawn up by public deed, but it is possible that it also arises by unilateral act (excluding the will);
  • legal , finds its source in the law. The only cases in which it is foreseen are listed by the art. 2817 of the Civil Code :

1. the assignor in the case of sale of a property has a mortgage on the asset alienated for the fulfillment of the obligations deriving from the deed of sale; 
2. co-heirs, shareholders and other shareholders have a mortgage to guarantee the payment of real estate adjustments assigned to other shareholders; 
3. the State over the assets of the accused or of the civilly responsible for the payment of court costs.

  • judicial , is established as a result of a judicial order that condemns the debtor to pay a sum of money or the fulfillment of another obligation or compensation for damage to be liquidated later (generic conviction).

In order to be able to set up a mortgage on a property, it is always necessary to register it in the real estate registers of the Conservatory. It is not automatically established even in cases of legal mortgage. It is possible to request the registration of an online mortgage .

What is a judicial mortgage and what does it involve?

Compared to other types, the judicial mortgage is established by the Judge to protect a dissatisfied creditor who has obtained a judicial order, such as an injunction or a sentence.

It is placed as collateral for a loan, therefore the extinction of the mortgage also derives from the extinction of the latter. However,  extinction and cancellation are not always coincident and it is good not to use them as synonyms. In fact, it may happen that the debtor has paid the bond but the mortgage has not been canceled from the real estate records of the Conservatory. These records are public and available to anyone who wants to check if a property is burdened with a mortgage of this type.

It will be substantially extinct but formally still registered and therefore the extinction of the debt will make it unusable. However, the non-cancellation of a judicial mortgage could continue to generate a state of alarmism among the banks with which they maintain relationships, as these will regularly verify those registered against their clients through a prejudicial mortgage review . Furthermore, the sale of the property will continue to be difficult. This is because a possible purchaser of the property can rightly claim that it is freed from the mortgage, even if it is devoid of content.

To avoid these situations, mortgages must always be deleted without waiting too long.

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