Banking and Financial, Pledge of the Guarantor, Payment, Unrestricted enrichment, Financial Banking Arbitrator, ABF, Milan College, Decision No. 2122 of 23 January 2018
The plaintiff issued to the resistant intermediary, to guarantee debts contracted by his spouse, owner of an individual enterprise, a security worth € …….
The title was enforced by the resistant intermediary, with the consequent crediting of the proceeds to the current account in the name of the applicant’s spouse.
The applicant considers that: i) the revocatory would obtain “the full right of the claimant to repay the amount of € 51,645.70 over interest and revaluations for unjust enrichment” of the agreed intermediary, which – as mentioned – would have been fully satisfied by the principal debtor, as part of the bankruptcy of the latter; the intermediary “has the duty to return the entire value of the pledge to the guarantor, or in the alternative the lower amount of …., over interest and revaluation since 1991, which corresponds to what the intermediary has obtained from the bankruptcy last division occurred as a percentage “. With its counter-claims, the resistant intermediary specified the following:
– any right inherent in the enforcement of the pledge occurred in 1991 is prescribed, having passed more than 10 years;
– the appellant has no active legitimacy of the appellant; the restitution action of overpayment would only be for the principal debtor and not for the guarantor, who would have only the right to have recourse against the principal debtor pursuant to art 1950 cc .;
In summary, the intermediary obtained (i) payment from the Curatel of its credit admitted with the application for admission to ordinary liabilities, but also obtained (ii) payment of the credit referred to in the application for admission to liabilities pursuant to art. 71 LF, for which the Intermediary had made the payment in favor of the Curatela of the corresponding amount (a “mere round game”).
The claimant, having acted as guarantor for the payment of a debt of his wife, asked for reimbursement of the amount paid as a result of the payments received by the resistant intermediary in the context of the insolvency proceedings initiated against the spouse (principal debtor).
As guarantor, the claimant has no action against the creditor for the repayment of sums collected by him in excess of those actually due, and is due only to the principal debtor; against which the appellant maintains, in any case, the legitimacy to the recourse action pursuant to art. 1950 c.c
Source ABF Financial Banking Arbitrator
