Criminal law, banking, preventive penal seizure and irregular pledge granted as guarantee of a simultaneous bank advance, Court of Cassation, III Criminal Section, Judgment n. 2417 of 22/01/2018

Essential lines of the arguments of the Supreme Court of Cassation

Appeal against the Ordinance of 27.10.2016 of the Court of Vicenza.

BELIEVED IN FACT

1. By decree dated 30 January 2013, the G.I.P. of the Court of Bassano del Grappa, as part of a complex investigation concerning tax offenses, ordered the preventive seizure of the assets of the suspect … up to the amount of € 8,680,051.49; among the assets seized, there were in particular also those that the branch no. … of the then Bank … .. of … .. had received a pledge, through the contracts of 11 and 31 May 2010 from … to guarantee a loan of € 915,000.00 disbursed in June 2010, including the current account balance no. … .., amounting to € 12,098.01. After the conviction of the first degree of …., Which occurred on July 14, 2014, with which the confiscation of the seized assets was ordered, including the balance of the current account mentioned above, the Bank … of …. asked the Court to release the seized current account relationship. Following the rejection of the petition, the bank appealed to the Court of Vicenza Review which, by order dated 21 October 2014, declared the encumbrance inadmissible, recognizing a lack of active legitimacy for the Bank … .. of … .., which proposed an appeal in cassation.

2. By a ruling issued on 10 June 2015, the Court annulled the contested order limited to the sole seizure of the current account no. …., With consequent referral to the Court of Vicenza for a new examination. In particular, the Court observed that, while there was a lack of legitimacy of the applicant bank for credit rights backed by collateral rights, for which the protection was entrusted to the enforcement phase, the situation was different for the credit balance of the current account no. …, the latter falling within the category of irregular pledge, in which, unlike regular pledge, there is a real transfer of ownership of the things assigned as collateral, concerning the restitutor obligation borne by the creditor the tantundem of received as collateral and not, as in the regular pledge, the same res held temporarily in custody; compared to the assets constituted as an irregular pledge, the legitimacy of the applicant was then recognized as the legal entity to which the assets had been seized.

3. The Court of Review of Vicenza, as the referring court, by order of 15 December 2015, while recognizing the legitimacy to act by the Bank … .. of … …., however, in examining the substantial ownership of the disputed right , excluded the irregular pledging nature of the guarantee constituted by the defendant ….. in favor of the applicant bank, pointing out that this guarantee had to be traced back to the regular pledge category, since there was no transfer of ownership of the goods pledged and seized , being these remained in the availability of the debtor.

Against this provision, another appeal was proposed for cassation.

4. With the sentence of 24 May 2016, the Fourth Criminal Section of the Court annulled the contested order, with a new reference to the Court of Vicenza, observing that the precautionary judge should have investigated the actual power that the bank can exercise over money deposited on the current account, in light of the prior qualification of the lien relationship, to be carried out bearing in mind the legal principles established by the judge of legitimacy.

5. By order of October 28, 2016, the Court of Vicenza Review, in the second postponement, once again rejected the appeal of the applicant bank, reiterating that the existing cash on the current account relationship referred to above, linked to the securities account , was bound to guarantee the Bank’s claims by virtue of regular pledge, being qualified in that sense the will of the parties; from the examination of the summary document of the bank current account contract no. … .., the Court drew in fact that the parties had not intended to give the bank the power to directly meet the money on the aforementioned account, having been provided for by art. 5 the right of the bank to avail itself, in the cases referred to in art. 1186 cod. civ. o the occurrence of events that adversely affect the patrimonial, financial and economic situation of the account holder, of voluntary compensation, an institution whose mechanism would be incompatible with the legal nature of the irregular pledge, under which instead the sums of money or securities deposited with the creditor becomes the property of the latter, ie having the creditor the right to satisfy himself directly on the thing and not according to the mechanism of art. 2796-2798 cod. civ., which instead postulates the altruity of things received in pledge.

6. For the annulment of the latter order of the Court of Vicenza, the applicant bank, through its lawyer, again brought an appeal in cassation, raising two grounds of appeal.

6.1. With the first reason, the violation of criminal law is complained, with reference to the art. 125 paragraph 3 of the Italian Civil Code proc. pen. for total lack of motivation of the contested provision, not understanding what should be the accounting transaction that, unlike the offsetting, should allow the bank to make the actual balance of any bank account, so on the point the motivation as well as seeming to be contradictory, insofar as it is first stated that the compensation would deny the irregularity of the pledge, to be then pointed out that the regular pledge would have been irregular if instead of the compensation the Bank had recourse to another accounting transaction, which however could not that being the same compensation, not having on the point the Court provided any clarification about the nature of the alternative accounting transaction.

6.2. With the second reason, the applicant bank regrets the violation of the law in relation to art. 321 paragraph 2, 322 ter paragraph 1 of the Italian Civil Code proc. pen. and 1846 and 1851 cod. civ., pointing out that the pledge granted as guarantee of a simultaneous anticipation (ie the loan of € 915,000.00) is irregular in itself, regardless of the mechanism of ownership of the resend, being able to discuss the regular or irregular nature of the pledge in the case of securities, distinguishing themselves according to whether or not these securities have been identified, or that the bank has been granted or not the right to dispose of them, while the pledge of sums of money granted as security for advances determines the possibility / need, for the lending bank, to return only the sum that exceeds the amount of guaranteed loans, refund to be excluded in the case in question, since the balance of the loan (- € 745.260,54) much higher than the account balance of € 12,098.01; nor, adds the defense, the pledge of a sum of money, in itself irregular, becomes regular as a result of the appeal, agreed between the parties, to the mechanism of compensation as a means of implementing the pledge, since this institution is exactly what allows that protection automatism that replaces the ordinary procedure of realization of the pledge and that constitutes the typical connotation of the irregular pledge. The appellant then, noting the good faith of the bank (the irregular pledge of the credit balance, contextual to the disbursement of the loan, dated back to 2010, or about three years before the implementation of the seizure orders), asked, in addition to ‘cancellation of the order of the Court of Vicenza, partial revocation of the seizure order for equivalent of 30.01.2013 and the restitution of only the current account balance no. … ….

CONSIDERED IN LAW

1. The appeal is well founded.

2.The question referred to in this further appeal, which follows two others of similar content, has already been extensively addressed by this Court with sentence no. 42464 of 10 June 2015, by which (page 8 ss.), In accepting the fifth appeal, the first decision of the Court of Vicenza of 21 October 2014 was contested for not having considered that the current account balance n. …. it belonged to the category of irregular pledge, which gives the bank the right of ownership over this sum; with the ruling of 2015, to be understood here entirely referred to, this Court had already highlighted that the irregular pledge (Article 1851 of the Civil Code) in terms of bank advances responds to a general negotiation scheme and can be shared with the pledge CD. regular (Article 2784 of the Civil Code and subsequent amendments), both for the structural profile of the real nature of the contract, and for the functional profile of the shared cause of collateral, with the peculiarity of being characterized by its specificity of content and effects . The real effect that in the regular pledge is exhausted in the creation of an ius in ali aliena opposibile erga omnes assumes in the irregular pledge the widest value of a real transfer of ownership of the things assigned as collateral, with the further difference that the restitution obligation borne by the creditor concerns the tantundem of the amount received as collateral, while the regular lien relates to the same res held temporarily in custody.

The irregular pledge was therefore defined as the contract with which the guarantor delivers and attributes to the creditor money or assets having a current market price, and therefore deemed to be fungible with the money, of which the accipiens must return the tantundem only if and when the fulfillment of the guaranteed obligation occurs, otherwise the restitution obligation relates to any excess of the value of the assets transferred into property with respect to the value of the guaranteed provision that has not been fulfilled, with the consequence that the irregular pledge contract does not eliminate the right to demand the fulfillment, but rather exhausts in limine the interest of the creditor to walk the path of forced execution, being anticipated with the negotiating instrument the final effect of the procedural protection; from this premise the Court, with the aforementioned sentence no. 42464 of 10 June 2015, has therefore drawn the conclusion that the attachment to the creditor of assets constituted by the suspect-debtor in irregular pledges binds as security for the interests pursued with the precautionary measure real assets no longer owned by the constituent, not being on the other hand, the seizure of third parties has the object of purely potential credits.

In conclusion of this reasoning, compared to the current account balance n. …, the legitimacy of the claimant bank’s claim as a legal entity to which things had been seized was deemed to exist.

3.0rbene, despite the explicit hermeneutical indications provided by the Court, the two subsequent orders of the Court of Vicenza continued to support, in an unacceptable way, the thesis of the regular nature of the pledge. In particular, the order of 15 December 2015, already annulled by this Court with sentence no. 34542 of 24 May 2016, did not consider that the legitimacy of the bank to the challenge of the seizure arose precisely from the assertion of the irregular nature of the pledge in relation to which the bank could claim ownership of the sum of money; vice versa, in a contradictory manner, the court order of Vicenza, while acknowledging the legitimacy of the bank affirmed by the Court, reiterated the regular nature of the pledge, thereby disregarding the factual and legal assumption that had led the Court to consider the legitimacy of the applicant bank.

The arguments used by the Court to overcome the assertion of the irregular nature of the pledge proved to be irrelevant not only in the first ordinance at the time of postponement of 15 December 2015, but also, to the extent noted here, in the order of 27 October 2016 appeal object.

And indeed with this last provision the Court of Review has ruled out the configurability of the irregular pledge in light of the reference of the art. 5 of the current account contract to the institution of voluntary compensation, an institution deemed by the precautionary judges to be incompatible with the irregular pledge on the basis of the assumption that in the irregular pledge the sums of money become the property of the creditor, who therefore has the right to satisfy directly on the thing, as a result of an accounting transaction that is not offset. This statement, however, is not correct, having the jurisprudence of this Court specified on the point (Section 1 of the Civil Code, No. 18597 of 2 February 2011) that, on the contrary, the compensation operates in the irregular pledge as a typical way of exercising the pre-emption, for which it has been argued that it is precisely the possibility of resorting to such an institution that differentiates the regular pledge from the irregular one, as a consequence of the fact that, with the stipulation of the irregular pledge, the power to dispose of the sum is attributed to the bank. conferred.

In this sense, for the purpose of a more correct legal framework of the banking relationship, it would have been useful, as opportunely observed by the Attorney General, the reference not so much to Annex 9 of the defensive production, relating to the current account contract, but rather to the Annex 7, that is, at the time of establishment of the pledge, the art. 3 provides that, in the event of redemption of the total or partial securities, the pledge is transferred to the amounts collected and necessarily merged into the current account no. … .. connected to the securities deposit.

4. Ultimately, the defensive claims must be considered founded, the reasons for which the Court of Vicenza, in the three decisions relating to this specific question (and in particular in the last object of the present appeal) in order to overcome the qualification, are contradictory and lacking. as irregular pledge on the current account no. … .., made by the first sentence of this Court of 10 June 2015, whose arguments must still be considered valid, having been made to infer the legitimacy of the bank to the seizure right by the preliminary recognition of the irregular nature of the pledge, so not having been adequately overcome in the two subsequent decisions of merit, this legal qualification can now be considered peacefully acquired. In light of these considerations, the contested order must also be annulled, with further reference to the Court of Vicenza for re-examination, for the purpose of adopting the restitution measures requested by the applicant bank.

Cancel the contested order with reference for a new examination to the Court of Vicenza.

Source Supreme Court of Cassation