Is it possible to write off and close a debt even if there is a mortgage?

This is one of the most frequent questions we hear from our clients and to which we can answer in the affirmative. Yes, even in the case of a mortgage, Rexpira debt advisors will help you write off and pay off your debt.


But do you know what the mortgage is?

But do you know what the mortgage is?

The mortgage is a real guarantee right which gives the creditor the power to expropriate the assets covered by the guarantee, whether they are from the debtor or a third party, and to be “preferred” to the other creditors on the amount obtained from the expropriation .

The mortgage is an effective form of guarantee, which confers a pre-emption right on the mortgaged property and which serves to protect the creditor from the danger of insolvency. It must be registered only on exactly identified goods (specialties) and covers all the goods covered by the guarantee.

The mortgage is indivisible, it does not split up and bears on the entire asset, including every part of it.


What assets can be mortgaged?

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Pursuant to art. 2810 of the Italian Civil Code. Mortgage assets can be:

  • real estate and its appurtenances (for example, the dwelling house and the attached garage), improvements and accessions;
  • the real rights of enjoyment (usufruct, surface rights, emphyteusis, etc.);
  • registered movable property (ships, aircraft, motor vehicles, state pensions, etc.).


How many and what types of mortgage are there?

How many and what types of mortgage are there?

The mortgage can be:

  1. a) Legal when it arises strictly and finds its source in the law.

The legal mortgage is foreseen as part of the stipulation of the contracts for the sale of real estate and relates, for example, to cases in which the seller has not received the full amount of the property sold or in the event that the co-heirs , following the deed of division, they leave pending equalization payments.

  1. b) Judicial when the judge imposes the registration of the mortgage as a guarantee of payment of the debt contracted to the detriment of another person (creditor).

It does not necessarily have to be a credit from a bank, but it can also be a normal credit from a company, a professional or a private individual. The judicial mortgage derives from the sentence sentencing the payment of a sum of money or for the fulfillment of another obligation or for compensation for the damage to be settled later.

  1. c) Volunteer when it finds its source in the will of one or both parties.

The voluntary mortgage is certainly the most common. It occurs frequently when a loan contract is entered into and a mortgage is “turned on” in favor of the bank on the property purchased.

The mortgage has a duration of twenty years and consists of a private agreement or a public deed which, in order to be valid, must be registered in the public real estate registers. In fact, for real estate there is a special form of advertising at the conservatories, where all the documents through which the mortgages are disposed of or registered must be noted.

Therefore, to check if a property is mortgaged, it will be enough to make a mortgage inspection at the public registers.

The mortgage creditor (ie the one who proceeds to recover the debt) has an advantage over other creditors for the preferential position granted to him in case of performance of the guaranteed asset.

In fact, the lender who registered the mortgage first will be guaranteed and preferred over the creditors who register the mortgage later. The first creditor will have the right to have fully satisfied his credit on the mortgaged property, but in the event of a residual of the sum obtained following the expropriation, this will go to the second creditor and only after the satisfaction of the latter will he receive a sum of money. to the third and so on for the creditors to follow.

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