How to avoid distraint from enforcement procedure
If you are a debtor and you are suffering enforcement proceedings, Italian Law provides for measures to avoid the distraint of your assets. These legal methods allow the debtor to avoid to suffer the consequences of enforcement proceedings even when the order of payment has been issued by the Court.
According to Italian Law, in fact, the debtor has the right to avoid the distraint order. In particular, there are three methods, the first of which is the most basic, allowing the distraint to be avoided completely.
1. Payment to the bailiff
Pursuant to Art. 494 of the Italian Code of Civil Procedure, the debtor may avoid distraint by paying the due amount, plus expenses, directly to the bailiff, who will personally deliver it to the creditor. It is thus a late performance of the obligation, which concludes entirely the enforcement proceedings.
However, the payment to the bailiff is only possible in case of distraint of movable property and only when the notification of distraint has been made by means of bailiff.
2. Distraint conversion
Pursuant to Art. 495, in case of distraint of goods, the distraint may be avoided by payment of the sum equal to the credit plus expenses and interests. In this case, the debt is not officially extinguished, as in the first case, but the assets of the debtor are replaced by a payment. In any case, the exact amount to be paid is determined by the judge, who can also order a repayment plan.
The distraint conversion may be carried out before the sale of the assets and it may be requested only once.
3. Distraint reduction
Even if it is not a method to avoid distraint, the reduction allows the debtor to avoid at least part of the distraint which is considered excessive to the actual debt.
The distraint reduction is proposed by means of appeal to the judge, who will set a hearing in which it must be proved that the assets under distraint are worth more than the claim.