Written by Alberto Angeloni & Emiliano Berti
A credit vis-à-vis an Italian bankrupt company shall be formally lodged against the bankruptcy estate in order to be paid (in bankruptcy money) following the liquidation of the bankruptcy estate assets.
Such proceeding is not complicated, but it can be very tricky. In fact, it provides for several deadlines, formal steps and exclusions, and in case of mistakes it may jeopardize the credit, which could be definitively lost/written-off or degraded from privileged/secured to unsecured. For such a reason, for instance, before lodging a claim against the bankruptcy estate, it is crucial to run a proper due-diligence on the nature of the credit, in order to determine if it bears priority/security rights pursuant to the contract or by law (Italian law provides more than 100 different types of priority rights).
Following the above, all and any evidence of the credit shall be collected and analyzed. Evidence of the credit may be, for example: contracts, emails, accounting records, orders, affidavits, and so forth.
Once the nature of the claim has been determined and the evidence collected, a proof of claim petition (insinuazione al passivo) shall be drafted. Such a petition shall deeply describe in fact and in law what are the groundings for the credit and shall request that the credit is formally lodged within the liabilities-book of the bankruptcy estate (stato passivo). The Italian bankruptcy trustee (differently from many other jurisdictions), indeed, shall be considered a third party who shall be persuaded on the existence and substance of the claim.
The formal proof of claim petition shall be filed with the court through a certified email (PEC) to be sent to the trustee, together with its supporting documents.
Then, the bankruptcy trustee reverts to the creditor expressing their opinion on the relevant petition, stating whether or not they deem the credit to be grounded.
Fifteen days later, a formal hearing before the bankruptcy court takes place, during which the parties (i.e. the creditors and the bankruptcy trustee) are allowed to discuss their positions.
A the end of the hearing, the bankruptcy judge will elect whether or not lodging the credit with the liabilities of the bankruptcy estate. Such a decision is appealable.
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