Among the mass of news appeared in these
days in the newspapers – mostly aimed at discouraging the
account-holder from filing a lawsuit against the bank (long,
tough, expensive, with an uncertain outcome, etc....) – this
Firm intends to provide some technical clarifications
based exclusively on law precedents prior to the well-known
sentence and all of them favourable to the account-holder.
As an example we will take a lawsuit
filed by a Credit Institution (Credito Emiliano), against
one of its account-holders, (Beta Video S.r.l.) and the
relevant guarantors, (among which Esperia S.r.l.), pleaded,
on the occasion, by this Law Firm.
Brief Chronicle:
-
April 12th,
1996: Credito Emiliano asks, by registered letter, the
company and the guarantors the immediate recovery of
about Liras 52,500,000, as debit balance of current
account.
-
July 12th,
1996: Not having received payments by this date, Credito
Emiliano obtains from the President of the Court of
Reggio Emilia injunction for Liras 56,616,511,
besides conventional interests from June 13th
1996 for settlement.
-
October 10th,
1996: the guarantor Esperia S.r.l., by means of this Law
Firm, formulates formal opposition, appealing:
-
invalidity
of the interest rate applied
-
invalidity
of the debits carried out by the bank for CMS
(Maximum overdraft bank charges)
-
reaccrediting of the sum paid by the
account-holder as advance tax deduction paid out
but not due, in consideration of the actual
amount of the credit
The concept is
simple: the guarantor/debtor
filed a lawsuit only in order to know how much he was
actually in debt, since every such attempt with the bank
had been vain.
May 23rd,
2000: after a serious and in-depth consultancy, the expert
appointed by the Court concluded that the sum due to Credito
Emiliano was not 56,616,511 Liras but
17,375,465 Liras.
The Sentence, which was final and not
appealed by Credito Emiliano, has only re-established,
at a time prior to the sentence with Joined Sections of the
Courts of Cassation, the exact situation, i.e. the bank
required 39,241,046 Liras more than it was due to them, (therefore
225% more).
This sentence was
followed by others and nearly all of them condemned the bank
and not the account-holder.
Today, at last,
Sentence n. 21095/2004, has definitively sanctioned the
illegitimacy of the so-called banking anatocism practised by
Credit Institutions; such sentence, therefore, identifies
presumptively those who have taken away illegitimately and
must give back to those who have the right to be given
back.
This – and only this – is the truth which
by itself demonstrates that there is not only ANATOCISM,
but there are several situations connected to one another,
therefore it is only necessary to examine them carefully
case by case.
In the F.A.Q.
section we have introduced a few clauses which can impose
the invalidity of the banking contracts.
For further
information write to: anatocismo
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