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How to put a mortgage without the owner's knowledge

To register a mortgage on a house or other property of the debtor, it is sufficient to have an enforceable title, ie a sentence, an injunction, a loan contract, etc. It is not envisaged to send a mortgage notice as, instead, in the case in which both the tax authorities and, in particular, the Collection Agent (Equitalia or, from 1 July 2017, the Inland Revenue Agency) act, collection). Does this mean that it is possible to place a mortgage without the owner's knowledge? We try to find out below.

First of all we try to understand what a mortgage is and what it is used for. Contrary to what is commonly believed, the mortgage does not signal the start of a foreclosure. A property can well be mortgaged without ever being put up for auction. One thinks of the case of the banks that grant the mortgage by registering a mortgage on the financed house: the mortgage remains registered in the public registers also in the regularity of regular payment of the installments.

So what is the mortgage for? The mortgage is a simple "guarantee" that acquires the creditor and allows him to protect himself from two risks: the sale of the property by the debtor and the presence of other creditors. Regarding the first aspect, the law holder allows the act and seize the house even if sold to third parties, although these are completely unrelated to the debt. This means that those who sell a mortgaged house sell it with the whole mortgage; which is a strong protection for the creditor who, in this way, is sure of never losing the guarantee on the good. As regards the second aspect, in the case in which a person has contracted debts with several persons or companies and all want to seize the only property owned by the debtor, the proceeds of the judicial auction will go first to the creditor equipped with a first degree ", then to the one who registered after the mortgage (so-called" second degree mortgage "), etc .; only the eventual residual will be divided among all the other creditors without mortgage.

From this it is understood that the mortgage is a simple preventive protection of the creditor , but does not imply that the mortgaged house must necessarily be subjected to the attachment. The attachment takes effect only if the debtor no longer pays or if all the agreements with the creditors have failed.

Precisely because of its "preventive protection" nature, the mortgage can be registered even before the default situation occurs. It is sufficient to be creditors of the owner of the property to be mortgaged. Who, therefore, is the holder of a credit right can register a mortgage on the debtor's assets, goods that he identifies and pre-chooses.

The procedure for registering a mortgage does not even provide for the prior notification of the " enforcement order ", that is to say the document which results in the claim as in the case of a sentence of conviction. In short, preventive notices are due. The creditor does not even have a minimum or maximum term within which to register the mortgage from the date of issuance of the enforceable title. You can do it at any time, provided that the title is not prescribed (the prescription of all judicial documents is 10 years). This means therefore – wanting to answer the initial question – that if in the abstract a mortgage never falls "out of the blue", being the debtor already aware of his debt, it is however possible to put a mortgage without the knowledge of the owner as these can not be aware of the "if" and "when" the creditor will register the mortgage.

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