Our law firm
Studio Corno Avvocati was established in 1994 in order to provide its clients (companies, individuals and professionals) with a vast range of in and out of court legal services at local, national and transnational levels.
Debt collection services are provided at a judicial and extra-judicial level, on behalf of Italian and foreign entities.
Debt Collection in Italy
Italy does not have self-employed judicial officers but only Court Bailiffs (public officers employed by the Ministry of Justice, working for the various law courts and allowed to act in the course of forced execution). Debt collection services are provided in the following steps and with the following characteristics.
First step – out of court debt collection
Upon request of the client, our law firm forwards to the debtor a payment notice, either by registered letter or certified mail. Such notice usually grants the debtor with a certain delay to provide with the spontaneous payment of the debt. When appropriate, following the first notice, our law firm also contacts the debtor by phone or e-mail in order to try to reach an agreement and obtain a voluntary payment.
Second step – solvency researches
In case of negative outcome, our firm advices its clients to carry out inquiries and solvency researches utilizing reliable agencies.
Third step – court debt collection
If recovery is convenient for the client, our law firm advices to start a legal proceeding. The usual way to obtain an enforceable order is through a “ricorso per decreto ingiuntivo”, i.e. and application which allows the creditor to obtain a payment order, issued by Italian Courts on specific grounds. If the conditions set by the law to apply for a “ricorso per decreto ingiuntivo” do not exist, other proceedings are used.
Fourth step – enforcement
Following issuance of a payment order by the Court, should the debtor not raise any opposition by the deadline provided by Italian Civil Procedure Code, the creditor may start the following enforcement proceedings:
- third party attachment: it is normally the speediest (3/4 months) and allow the creditor to seize the debtor’s bank accounts or other debtor’s credits;
- enforcement on movable goods: it allows to seize movable goods owned by the debtor. The goods are subsequently sold in public auctions;
- enforcement on real assets of debtors (immovable): it allows to seize immovable goods owned by the debtor. The goods are subsequently in public auctions.
The said enforcement proceedings may, also, be started based on a payment order (“decreto ingiuntivo”) declared by the court immediately enforceable. Therefore, enforcement proceedings may be commenced, in this case, notwithstanding the opposition to the decreto ingiuntivo filed by the debtor.
Fifth step – filing of bankruptcy of the debtor
If the enforcement is unsuccessful and the debtor is subject to bankruptcy according to the Italian Insolvency Law rules, the creditor may file to the competent court an application for the opening of a compulsory winding up proceeding (“fallimento”).
If such proceeding is opened or has already been opened, the creditor may lodge its claim within the said proceedings.
Cross border Debt Collection
Debt collection activities against debtors domiciled within the European Union are usually carried on either through local correspondents - unless the jurisdiction of Italian courts exists - or using the most relevant European Regulations in civil and commercial issues (nn. 805/2004; 1896/2006; 861/2007; 1215/2012).
Debt collection activities against debtors domiciled outside the European Union are usually carried on either through local correspondents, unless the jurisdiction of Italian courts exists.
BAYH & FINGERLE Rechtsanwälte in Partnerschaft
(lawyers in civil partnership according to German law)
BAYH CM (= collection management) is the debt collection branch of BAYH & FINGERLE, a lawyer’s chambers being specialised and active in the field of debt collection since 1983.
Covering debt collection on a national level
BAYH CM is one of the nationwide leading firms in this business with commercial clients all over Germany. For years BAYH CM has served international clients, too, in recovering open claims in Germany.
The debt collection departments are situated in Stuttgart and Hamburg. There are 4 lawyers exclusively working in debt collection as well as 16 other staff members.
Debt Collection in Germany
Why do you find among all the judicial officers being members of CONNEXX law firm? In Germany there are no self employed judicial officers but only court bailiffs who are government employees. They are commissioned by the law courts and are just allowed to act in the course of forced execution according to the orders of the court. Hence debt collection is an area of activity of law firms.
Amicable Debt Collection
Usually we introduce debt collection by one up to three extra judicial reminders and – if requested – by a telephone call to the debtor. The reminders are automatically carried out in between intervals of 10 days or as accorded with the client.
In accordance with its CONNEXX partner, BAYH CM offers to their clients in case of unsuccessful amicable debt collection, costs that are limited to a lump sum of 50,00 EURO (without vat). If the client wishes supplementary inquiries the costs for these are added.
Inquiries and Solvency Researches
We recommend to our clients to have a solvency research commissioned particularly within higher claims. Different possibilities can be offered within a price range up to 8,00 EURO up to 230 EURO to obtain solid data about the debtor.
Legal Dunning Proceedings
According to the general experience in debt collection more than 90 % of all claims rest undisputed. But in case the amicable reminders remain without success we usually recommend to our clients the introduction of legal proceedings. In European-wide cross boarder collection we’d mostly refer to the European Enforcement Order where we cooperate with our CONNEX-partners. Depending on the lieu of jurisdiction, and depending on the national law to be applied to in the individual case, we intent to provide the best solution to the client.
It could also be considered to revert on the special German dunning proceeding (gerichtliches Mahnverfahren) especially when the debtor is a consumer or / and there is need of hurry and the proceedings refer to German lieu of jurisdiction. Compared to the European Payment Order-procedure it might be possible to obtain a provisionally enforceable title in Germany in a shorter lap of time.
In opposition to the European Enforcement Order dunning proceedings in Germany take place in two stages; the first step is entered with a so called court order (Mahnbescheid). This, the debtor can appeal against (Widerspruch) in between a deadline of 14 days after service. If he doesn’t do so we demand for the creditor the provisionally enforceable payment order (Vollstreckungsbescheid). The debtor still has the possibility for an opposition against the payment order in a deadline of 14 days, yet execution can be introduced. The steps we have to take for our clients are automatically processed.
The costs depend on the value of the claim. The court fees are statutorily regulated as well as those for the lawyers, each based on a sliding scale. We might give you some examples:
|Disputed claim in €||Court fees in €||Lawyer’s fees in €|
The lawyer’s fees don’t include VAT.
In case of an appeal against the court order the case will be disputed and transferred to the responsible law court.
It has to be highlighted that the debtor is obliged to reimburse all the costs from the creditor being based on legal fees that occurred in dunning proceedings if there is no opposition. This also applies for the lawyer’s fees.
If it was evident that the continuation of the case would be without success the client is free to end the activities. In accordance with its CONNEXX partners, BAYH CM will charge for its own service a lump sum of 50,00 EURO (without vat). In addition to this, disbursements for court fees would have to be paid for.
Legal Proceedings in Disputed Claims
As law firm BAYH & FINGERLE is naturally authorized to introduce legal proceedings in disputed cases at all the law courts in Germany, except from the Federal Law Court (Bundesgerichtshof) where only a restricted number of laywer’s are admitted who are exclusively active only there.
The lawyers of BAYH CM are all specialized in and have experience in running court proceedings also in cases with points of contact to the international private law and the international civil procedure law. Although BAYH CM is able to provide a high standard of representation in court proceedings, the main ambition is not a performance of long rows of arguments in a number of never ending court hearings but to obtain for the client a reasonable economic solution.
Here we do have to point out a particular characteristic of German court proceedings: the court is legally obliged to induct a settlement between the parties on every stage of the proceeding (e. g. par. 273 (4) of the German Civil Procedure Code). That specialty is what foreign clients have to get used to especially from Roman countries where the parties “either live or die”. But the parties are not forced to agree in a settlement if they don’t feel to do so. BAYH CM are used to weigh all pros and cons with their clients in order to achieve a economically satisfying solution.
By the way: the non-negligible number of settlements is one of the reasons why court proceedings in Germany don’t take as much time as in other countries.
Concerning the costs of the procedure here can be referred to the explanations above for the dunning proceedings. Basically the legal rules are applied. Because of the higher time and effort the costs are superior compared with those for the dunning proceedings. Her again some figures:
|Disputed claim in €||Court fees in €||Lawyer’s fees in €|
|500,00||105,00||132,50 - 177,50|
|1.000,00||165,00||232,50 - 317,50|
|5.000,00||363,00||772,50 - 975,00|
|10.000,00||588,00||1.235,00 – 1.721,00|
|50.000,00||1.368,00||2.635,00 – 3.681,00|
|100.000,00||2.568,00||3.405,00 – 4.759,00|
All prices mentioned above don’t include vat.
It is important to explain that the legal lawyers fees represent a minimum level. BAYH CM is granting the legal fees in disputed cases in general where the procedure is restricted on application and initiation of procedures and one court hearing. In case of higher efforts BAYH CM will ask their clients for an hourly rated remuneration. The costs depend on the individual case. One can calculate with an average of 220,00 EURO per hour.
Again it has to be underlined that the creditor is entitled to claim from the debtor to restore the legal fees in case he wins the case but not the exceeding costs based upon the remuneration contract.
We already explained above the system of forced execution in Germany. The creditors – mostly represented by their lawyers - in possession of an enforceable title do have to address the local court (Amtsgericht) responsible for the execution, the so-called Vollstreckungsgericht. Quite usually that is the court where the debtor is situated. The creditor has to ask for the kind of execution, in general beginning with the seizure.
The body competent to carry out the execution is the court bailiff.
As law firm specialised in the field of debt collection it is the ambition of BAYH CM to render to its clients a developed service in execution. An analysis of the creditor’s liquidity, earnings and asset situation can be made based on solvency checks before the introduction of the execution. Proposals will be forwarded on which way of execution could be the most effective.
The debtor is obliged to bear all expenses that occur to the creditor in course of forced execution. Although BAYH CM always intents to prevent superfluous activities and costs, the solvency of the debtor is not always guaranteed. Costs and fees in execution are again regulated legally. According to German law the debtor is obliged to compensate all legally regulated costs arising to the creditor in course of the execution.
Here too, BAYH CM offer to their clients in accordance with its CONNEXX partners in case of an unsuccessful execution the limitation of costs restricted to a lump sum of 50,00 EURO (without vat) and disbursement.
In seldom and exceptional collection cases, in case of further and costly in term of time measures (e. g. the seizure of shipping and execution levelled on real property) BAYH CM asks its clients for a reimbursement agreement based on an hourly rated fee of in general 150,00 EURO per hour.
BAYH CM at last offers clients the possibility of title monitoring. A first attempt of execution might not always be successful. The claim out of a legally binding title last 30 years according to German law. If the execution reveals that a debtor – here a natural person - is not able to fulfil his duty, the creditor is entitled to demand from the debtor’s issue of an affidavit. This action has to be recorded in the debtor’s register. The registration accounts for a period of three years that a bailiff will not accomplish further executions in this time (apart that the creditor supplies him with solid information about an improvement of the debtor’s income- and asset situation.
Title monitoring implies that BAYH CM regularly takes care for a scrutiny concerning the debtor’s economic situation after the above mentioned period. Apart from special creditor requests the title monitoring stays free of costs for the creditor. The remuneration is based on a participation of 50 % after deduction of the expenses incurred.
For more information visite our website www.bayh-fingerle.de
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For more information, visit our website www.leximpact.net