The Firm has been instructed to safeguard the interests of a client who realized that a credit institution had applied usury rates to the property lease agreement reached between the parties. In similar circumstances, the usual procedure provides for a preliminary and mandatory attempt at conciliation; if that fails, it is then possible to initiate proceedings on the merits of the case. The investigation phase has a decisive relevance within said proceedings and consists of a technical assessment aimed at the ascertainment by the Court appointed expert -in joint consultation with the experts appointed by the parties – of the actual existence of usurious interest rates. Usually, the time required to get to the decisive stage of the Court appointed expert’s technical assessment is at least one year after the start of the dispute.
In this particular case, in order to avoid this problem and immediately begin the technical confrontation with the credit institution on the incorrect quantification of the interests, it was decided to start a preliminary technical assessment ex art. 696 bis of the Italian Civil Procedure Code before the Court of Sassari, instead of the ordinary proceedings.
This defensive strategy was particularly effective, as it allowed to start the technical assessment phase in a very short time (about 10 days from the filing date of the application). In an ordinary proceedings on the merits, this phase, as already mentioned, would not have started earlier than a year from the filing of the case.
The decision of the Court of Sassari, which, unlike other Courts, granted the preliminary technical assessment in this matter, appears to be correct as it is in line with the guiding principles of the provision. It is, indeed, possible to use the PTA in disputes concerning the assessment or the determination of claims arising from failed or incorrect performance of contractual obligations or from unlawful actions. The only prerequisite for using the PTA is the existence between the parties of a point of disagreement and the likelihood that after having overcome it the parties will reconcile, since no other reasons for a dispute presumably remain. In this case, the disagreement between the parties concerns only the validity of the criteria used by the bank for the quantification of interest applied to the lease: therefore, the use of this instrument seems correct also in presence of unlawful conduct by banks.
In the case recently initiated before the Court of Sassari, over a period of four / five months since the start of the procedure, it will be possible to know the outcome of investigations conducted by the technical expert and have documentary evidence, which will be fully enforceable against the opposing party, attesting the existence of irregularities by the banking institution against which plaintiff has filed his claim.
At that point, it will be possible to start an out-of-court negotiation with the bank, from a considerably stronger position than the one held prior to the beginning of the procedure. In the event of a negative outcome of the negotiation, the ordinary proceedings on the merits will begin; however, it will be much shorter than it usually is, because the investigation phase has already been completed.
(Bologna Office– Elisabetta Sgattoni – 051/2750020)
