Extended confiscation and mortgage: commentary on ruling no. 37108 of 2024
The recent ruling no. 37108 of 2024, issued by the Court of Ancona, sheds new light on the topic of extended confiscation and the opposability of mortgages registered on confiscated assets. This issue is of great relevance in the Italian legal landscape, especially in a context characterized by increasingly incisive asset measures against economic crime.
The context of the ruling
The court's decision focused on a case in which a mortgage had been registered on a real estate asset as collateral for a credit. This credit had subsequently been transferred to a third party, who turned out to be involved in a fraudulent agreement with the recipient of the confiscatory measure. The central question was whether such a mortgage could be opposed to the State, which was proceeding with the extended confiscation.
Extended confiscation - Mortgage registered on the confiscated asset as collateral for a credit - Third-party assignee of the credit involved in a fraudulent agreement with the recipient of the confiscatory measure - Opposability of the mortgage to the State - Exclusion - Relevance of the good faith of the assignors - Exclusion. In the case of extended confiscation, the mortgage registered on the real estate asset as collateral for a credit subsequently transferred to a third party, who, regardless of the good faith of his predecessors, is deemed to be involved in a fraudulent agreement with the recipient of the confiscatory measure, cannot be opposed to the State.
Analysis of the ruling and legal implications
The ruling's principle clarifies that, in the presence of extended confiscation, the mortgage cannot be opposed to the State if the third-party assignee is considered to be involved in a fraudulent agreement. This principle is fundamentally important as it highlights how the good faith of the assignors cannot justify the maintainability of the mortgage. The ruling aligns with Article 240 bis of the Penal Code, which regulates confiscation in cases of illicit proceeds, and with other civil norms governing asset guarantees.
In summary, ruling no. 37108 of 2024 reaffirms the principle of non-opposability of the mortgage in situations where fraudulent connivance is present, thus protecting public interest and the fight against asset fraud. This jurisprudential orientation fits into a broader context of protection of confiscated assets and combating organized crime.
Conclusions
The ruling under examination represents an important step forward in the jurisprudence on extended confiscation, clarifying the limits of opposability of asset guarantees in the presence of fraudulent conduct. It is essential for legal professionals to take these indications into account to properly guide their clients' strategic choices, especially in complex contexts where asset interests and security measures intertwine.
