Supreme Civil SS.UU., Case No. 4077 22.02.2010
With No Judgement 4077/2010 here under review, the Supreme Court states that the mortgage property as collateral to satisfy the creditor is likely prodromal to the promotion of running real estate and therefore subject to the same value limits set for the establishment of that procedure, ie € 8.000,00.
This interpretation is at odds with the view that creditors of the institution considered the inclusion legitimate under the literal interpretation of Articles 76 and 77 drp 602/73 foresees a limit on the establishment of real estate and not running for the registration of a mortgage.
The Court rejects this argument by saying that, just as it is allowed to act as a coercive means for the protection of property expropriation claims for amounts lower than € 8,000.00, the same way, it is legitimate to include mortgages on real property where the amount entered in the role of collection is lower than the same amount and this is because the mortgage note is functional and instrumental and credit protection to be realized, in fact, being confiscatory.
The Court shows, so at odds with perspectives of the issue offered by the lower courts (Court of Nola, sec. I, Judgement No 408 of 17.03.2008, Bologna Court Judgement No 1015/07 of 02 May 2007, the Court of Naples, sec. dist. Casoria, Case No 149/2006, the Court of Naples, sect. X, Case No. 12785/2006) that the mortgages would enjoy independence and self-appointed with respect to enforcement proceedings . as well as by the legislature that, in reforming Article 19 of Legislative Decree no. 546/1992, returning to the jurisdiction of the Boards of mortgage tax appeals under Article 77 of Presidential Decree 602/73, in addition to the firm of property mobile register referred to in Article 86, Presidential Decree 602/73, ruled out the executive nature of them.
Unlike the United Sections believe that the mortgage, as the weight imposed on well with the purpose of guaranteeing the lender, serves as his own in court execution, guaranteeing the creditor-called "writing" on a preferential basis to the satisfaction proceeds of the sale.
this functional link between mortgage and expropriation proceedings, therefore, to extend the mortgage authorizes the discipline required to perform, under a logical interpretation of that.
So what of the mortgage may be recorded for amounts less?
The Supreme Court said nothing about it, nor specify who and how much time should proceed with the cancellation, nor who should bear the costs of such operations or, even less, what are the effects of a foreclosure property in relation to an asset on which has been improperly registered mortgage.
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