The Supreme Court of Cassation reiterated the principle[1] (already repeatedly affirmed by Cass. 2017/n. 31118; Cass. 2019/n. 15884; Cass. 2020/n. 20495; Cass. 2021/n. 10200) whereby the party acting claims to be the successor in a particular capacity of the creditor original, by virtue of ablock transfer operation according to the regulations referred to in the art. 58 TUB, has the burden of demonstrating the inclusion of the credit itself in said operation, thus providing documentary proof of its substantial legitimacy. This proof, since the assignment is not subject to particular formal requirements under penalty of invalidity, does not necessarily have to be provided through the production of the assignment contract; in fact «the production of the publication notice in the Official Journal which bears the indication by category of the relationships transferred en bloc is sufficient to demonstrate the ownership of the credit by the transferee, without the need for a specific enumeration of each of the relationships subject to the transfer, when the elements that unite the individual categories allow them to be identified without uncertainty, the assessment of the sworn suitability of the aforementioned notice remaining up to the judge of merit»; «…so, where the assigned credits are identified, as well as by title (principal, interest, expenses, damages, etc.), on the basis of their origin within a certain date and the possibility of qualifying the related relationships as bad loans in accordance with the instructions supervisory authority of the Bank of Italy, the judge of merit has the duty to verify whether, having regard to the nature of the credit, the date of origin of the same and the other characteristics of the relationship, as emerge from the evidence collected in court, the claim asserted is included among those transferred to the assignee or is, on the contrary, included among the credits excluded from the assignment»[2].
In this case, where the opponent has never contested the existence of the block transfer contract (existence which is indisputable, given the registration made in the business register, correct chamber of commerce certificate of deeds), but only the inclusion of the credit about which within the scope of the aforementioned transfer, there is suitable demonstration in the documents of the current ownership of the credit by the transferee having produced the opposite not only the notice of transfer published in the Official Gazette (containing specific indications of the objective and temporal identification criteria, which the activated credit certainly meets, arising from a mortgage loan stipulated by a private entity which, at the cut-off date of 06/01/2020, was already classified at least as unlikely to pay, correct letter of formal notice and withdrawal sent by on 05/22/2020), but also the transfer declaration issued by the transferring bankwhich, as specified by the jurisprudence of legitimacy[3]«(…) like the availability of the enforcement order, it constitutes a relevant documentary element, potentially decisive and as such also admissible at appeal level, in order to demonstrate the assignment of the credit en masse» (even in the jurisprudence of the merits it has in fact been observed that this declaration represents liquid evidence which confirms the ownership of the subjective position activated by the transferee, as the transferor has no interest in making a declaration contrary to itself). This declaration accurately confirms the transfer of the debt position with an identification number which finds precise and timely numerical correspondence in the mortgage relationship indicated with the same number in the letter of formal notice.
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The Foggia Court does not align with the well-known ruling of the Third Civil Section of the Supreme Court of Cassation n. 12007/2024, in which the principle was stated according to which «the contractual agreement by which a bank grants a loan sum by actually disbursing it to the borrower, but at the same time agreeing that this sum is immediately and fully returned to the lender, with the understanding that it will be released in favor of the borrower only upon the occurrence of certain conditions, even if suitable for finalizing a real loan contract, do not allow us to believe that the transaction stipulated between the parties results in a current obligation on the part of the borrower to repay the aforementioned sum (immediately returned to the assets of the lender), as this obligation arises, by explicit will of the parties themselves, only when the amount disbursed is subsequently released and entered into the assets of the financed party; consequently, it must be excluded that such a contract constitutes, in itself alone, an enforceable title against the borrower, as a further act is necessary for this purpose, necessarily consecrated in the forms required by the art. 474 cpc (public deed or authenticated private deed), certifying the effective release of the sum already borrowed (and re-transferred to the lender) in favor of the borrowing party, with the latter having the obligation to repay it only from that moment of that amount».
Without a solution of continuity with some previous pronouncements, expressed in other similar cases, the Apulian judge considers the principle reported to be unconvincing, nor even shareable, to the extent that it fails to consider, in relation to the affirmed “conditional” nature of the mortgage, that the repayment of the borrowed sums is in no way subordinate to the release of the security deposit, deriving the restitution obligation placed on the borrower from the sole release of the release receipt, in this case contained in the public mortgage deed itself.
In other words, the provision of temporary unavailability of the borrowed sum does not condition or defer the actual disbursement and repayment of the disbursed amount, given that the pledging and/or interest-free security deposit does not exclude, but, indeed, necessarily presupposes that said amount is already entered into the legal availability of the financed entity which, with its own dispositive deed, creates an autonomous title of availability in favor of the lender. In light of this, the full validity of the mortgage activated as an enforceable title pursuant to art. must therefore be affirmed. 474 cpc
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[1] Cfr. Cass. n. 4277/2023.
[2] Cfr. Cass. n. 21821/2023.
[3] Cfr. Cass. n. 10200/2021.
