proof of the eventus damni to the curator

The bankruptcy trustee, who intends to promote or object to the ordinary revocation of a dispositive act, carried out by the debtor who then went bankrupt, to demonstrate the existence of the eventus damni has the burden of proving the pre-existence of credit reasons which remained unsatisfied with respect to the completion of the prejudicial act, but also the consequent qualitative or quantitative change in the assets debtor.

Therefore, the general rule envisaged for the Paulian action does not apply, according to which, in the face of the creditor allegation of the circumstances integrating the eventus damni, the burden of demonstrating the insufficiency of the debt assets falls on whoever pleads its lack.

In fact, the trustee represents, at the same time, the mass of creditors and the bankrupt debtor; furthermore, in compliance with the principle of proximity of proof, such a burden cannot be placed on the defendant, beneficiary of the contested act, who is certainly not required to know the actual financial situation of his predecessor.

These, in summary, are the principles expressed by the First Civil Section of the Court of Cassation with theordinance no. 20801/2024 (text at the bottom).

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Brief commentary on the laws on business crises and insolvency by Maffei Alberti Alberto

The case

Ubi Banca Spa, the incorporating company of Banca Popolare di Ancona Spa, entered the liabilities of the Bankruptcy V Srl, in mortgage privilege plus interest, by virtue of a land loan granted to the subsequently bankrupt company, through the opening of credit in current account.

The delegated judge partially accepted the request and admitted the Bank into an unsecured position for a smaller capital amount; all subject to revocation of the mortgage guarantee, on the basis that the mortgage had been fully used to pay off the pre-existing unsecured debt of the bankrupt company towards the lending bank.

However, it excluded the amount relating to interest as it was indeterminable, as the loan contract did not include the basis (360 or 365) of the expected Euribor rate.

Ubi Banca proposed opposition to the passive state but without success.

The judgment of opposition to the passive state

According to the Court, the overall economic operation carried out through the stipulation of the land loan constituted a indirect shopwith the effect of arming the pre-existing unsecured credit of the bank, due to an overdraft of the current account, of a mortgage guarantee of which he was originally deprived.

The credit had therefore risen to the rank of privileged credit, jeopardizing the par condicio creditorum. Since the details of the “guarantee for pre-existing debt” were integrated, the operation was subject to ordinary revocation.

The conditions for the revocation action

As for the conditions of the revocation action, the Court recognized the eventus damni in the establishment of a posthumous guarantee in favor of a pre-existing credit, of an unsecured nature, and in the consequent acquisition by the Bank of a preferential position with respect to any further creditors.

In terms of scientia damni, he believed that the Bank could not ignore the advantages that it would acquire over other creditors by changing its credit and therefore decreasing the generic capital guarantee, the unawareness of the possible state of insolvency or lack of liquidity in where the debtor was located at the time the loan was stipulated.

The mortgage was therefore revoked, as it was a “guarantee established for a pre-existing unsecured debt”, and the Bank was admitted to the liabilities side only for the capital amount.

The credit institution appealed to the Supreme Court.

The grounds of appeal

The Bank essentially contested the existence of the conditions necessary to bring the ordinary revocation action.

In particular, it criticized the contested decree, objecting that the considered prejudicial capacity of the dispositive act with respect to the par condicio creditorum was not in itself sufficient to affirm the existence of the eventus damni.

But neither would there have been evidence of scientia damni, since, for this purpose, it was not sufficient to have been aware of acquiring an improved position compared to the other creditors of the then bankrupt company, as a consequence of the operation carried out.

Finally, the failure to ascertain the existence of a state of insolvency of V Srl at the time of the act and its own knowledge of this is also censured.

Bankruptcy revocation and civil regulations

According to the Supreme Court, the reason is well founded.

The Court starts from the dictates of art. 66 L.Fall.which as is known provides that the trustee can request or object, in accordance with theart. 95, first paragraph, L. Fall.the ineffectiveness of the debtor’s actions, subsequently declared bankrupt, to the detriment of the creditors, according to the provisions of the civil code.

The reference to civil law attests, according to the judges, the derivative nature of the action proposed by the trustee which, although carried out in the context of an insolvency procedure, remains subject to the substantial requirements established by theart. 2901 c.c.

The exercise of the pauliana action by the curator therefore involves a deviation from the common scheme but only in terms of effects, legitimation and competence, due to the competition context from which it originates: however, the assumptions to which the action is related remain unchanged. acceptance of the action and its nature as a means of preserving the patrimonial guarantee.

Ordinary revocation and prejudice to creditor reasons

As for the case in question, the Ermellini observe that, even in the case of a gratuitous act – such as the granting of a mortgage for pre-existing debt (as the operation was configured by the Court in the case in question) – the objective presupposition of the In the ordinary revocation action, however, the prejudice that the dispositive act causes to the “reasons”, i.e. to the claims, of one or more creditors towards the debtor who carried out the act remains.

A prejudice which translates into a quantitative or qualitative modification of the debt assets, such as to make the complete satisfaction of the credit rights claimed against it impossible, more uncertain or difficult and provided that, before the dispositive act, such satisfaction was concretely possible, at least in part.

The trustee’s burden

Starting from these premises, it is clear that the bankruptcy trustee, who intends to promote or object to the ordinary revocation of a dispositive act, carried out by the debtor who then went bankrupt, will have to demonstrate the existence of the eventus damni by proving both the pre-existence of creditor reasons which remained unsatisfied with respect to upon completion of the prejudicial act, and the consequent qualitative or quantitative change in the debt assets.

In fact, the trustee represents, at the same time, the mass of creditors and the bankrupt debtor; furthermore, in compliance with the principle of proximity of proof, such a burden certainly cannot be placed on the defendant, beneficiary of the contested act, who is not required to know the actual financial situation of his predecessor in title (in this sense Cass. n. 8931 del 2013; Cass. n. 1902 del 2015; Cass. n. 16221 del 2019).

Therefore, the general rule foreseen for the Paulian action according to which, in the face of the creditor allegation of the circumstances that integrate the eventus damni, the burden of demonstrating that the residual assets is sufficient to satisfy the plaintiff’s reasons.