Banking law

The Cetraro Law Firm deals with litigation against banks concerning the repetition of sums illegitimately and unduly requested from current account holders as “anatocystic interest” and “overdraft fees.”

Anyone who has had a current account relationship with a bank, taking advantage of opening credit with debit balances, from 1950 until 2000, has surely suffered illicit interest rate debits.

In these cases, the Firm offers advice and assistance in order to obtain reimbursement from the banks of the sums illegally retained by the latter.

The procedure that is followed in these cases, provides for a first examination of the bank statements by means of an econometric – technical accounting expert by a consultant, who will be able to evaluate the cost effectiveness and the usefulness for the customer to proceed in the dispute .

The warning to the bank follows and, afterwards, 30 days have elapsed. without the bank having given any answer or providing an unsatisfactory answer, we will proceed with the mandatory mediation pursuant to Legislative Decree n.28 / 2010.

In case of non-agreement, the credit institution will be sued.

It is possible to request a refund from the credit institution for what has been illegitimately withheld by the bank, in the event that the current account has not yet been closed or has been closed within the last ten years; obviously, the account holder must have kept the quarterly account statements.

“By illegitimate application of anatocistic bank interest, we mean the practice of charging interest expense, relating to sums given to the account holder, with a quarterly expiry. These interests, reported quarterly on the customer’s account statement, take on the form of capital in order to in turn produce interest expense. “

The jurisprudence of legitimacy for many years has endorsed the practice of banks to apply anatocistic interests, until, by changing orientation, it sanctioned the illegality of the system.

Cass., Sent. n. 2374/99; Cass., Sent. n. 3096/99; Cass., Sent. n. 12507/1999: “the uses underlying the capitalization of interest clauses are negotiation uses, as the psychological element of the regulatory use, consisting of the spontaneous adherence to a legal precept, is missing. (…) It is observed, in fact, that customers they sign the clauses of bank current accounts not because they are considered compliant with the rules of the law, but as imposed by the credit institutions within the general contract conditions prepared by the same institutions, in accordance with the ABI directives, the adhesion to the which actually constitutes the condition for access to banking services.”

Therefore, the legal approach supported by the banks according to which, in the presence of regulatory use, in force for years, institutions could derogate from the provisions of art. 1283 of the Italian Civil Code: “In the absence of contrary uses, the expired interests can produce interest only from the day of the judicial request or as a result of an agreement subsequent to their expiry, and provided that it concerns interest expired for at least six months”.

Following the jurisprudential change, the legislator intervened to regulate the case of anatocism with Legislative Decree no. 342/1999, on the basis of which (art. 25) a task of establishing the methods and criteria for the production of anatocystic interests was entrusted to a resolution of the ICRC.

Under this resolution, which came into force on April 22, 2000, the capitalization of interest was allowed, under certain conditions, only for contracts entered into since May 2000; for those already in place, the conditions were to be adjusted.

At the end of the long-standing judicial dispute, the Supreme Court ruled on United Sections which definitively rejected the banks’ assumptions.

Cass., Sent. n. 21095/2004: “The assumption that, for the entire period prior to 1999, there was a widespread opinio iuris, and therefore a real regulatory use, which legitimized the application of anatocistic interests, was rejected. (…) Uses to the contrary, likely to derogate from the precept of 1283 of the Italian Civil Code, are not the mere “negotiating uses” referred to in art. 1340 C.C. , but only the real “regulatory uses”, referred to in art.1 and 8 disp. prel. Cc, consisting in the general, uniform, constant and public repetition of a certain behavior (usus), accompanied by the belief that it is a legally mandatory behavior, as it complies with a rule that already exists or that is believed to be part of the legal order (opinio juris ac necessitatis).“

Given, therefore, the changed jurisprudential direction, it is clear that all sums illegitimately received by credit institutions in the years before 2000 must be returned to current account holders.

It should be noted that the banks have recently put pressure to obtain a law which, by limiting the limitation periods, made de facto current account recovery action impossible.

A special rule was thus issued, defined as “SAVE BANKS” (Article 2, paragraph 61 of Legislative Decree 225/2010, the so-called Milleproroghe, converted into Law No. 10/2011), which provided that the limitation period for the recovery action against the banks from the day of the debit and not, as the Court of Cassation had established from the day of closing the account.

However, the Constitutional Court, with sentence no. 78 of 5 April 2012, has repealed the aforementioned regulation as it was issued in violation of art. 3 and 117 of the Constitution

This important ruling paved the way for bank customers to request the return of all anatocystic interests, also going back in time up to the ordinary ten-year limitation period, making it possible, in the cases in question, to act to safeguard of their rights.

The Cetraro Law Firm also deals with the management and recovery of outstanding debts. In these cases, the Firm follows a very rigorous procedure, aimed at the rapid realization of the credit claims; in fact, depending on the type of credit claimed, the most appropriate legal action is taken:

Ordinary share
Appeal for injunction
Deed of precept

In case of non-payment, the customer will also be assisted in any executive phases:

  • Foreclosure
  • Securities and real estate execution
  • Appeal for bankruptcy
  • Application for admission to passive status

Cass. Civ., Section I, sentence no. 24051 of 09.26.2019: “Prescription of the action of undue repetition of the client of a bank for nullity of the clause of quarterly capitalization of the interest of interest (..) The action of repetition of undue, proposed by the client of a bank, who complaints the nullity of the quarterly capitalization clause of the interest accrued with regard to a bank credit opening contract settled in the current account, is subject to the ordinary ten-year prescription, which begins, in the event that the payments have only had function restoration of funding, not from the date of annotation on account of every single item of interest illegitimately debited, but from the date of extinction of the closing balance of the account, in which the undue interest was recorded; in the aforementioned hypothesis, in fact, each payment does not configure a payment from which to make the limitation period of the right to repetition run, if deemed undue, since the payment that can give rise to a refund claim is exclusively that which has been translated into the execution of a service by the “solvens” with consequent transfer of assets in favor of the “accipiens.”

Court App. Ancona, sentence no. 1853 of 29.08.2018: “Anatocystic interests are subtracted from any type of capitalized calculation. (..) Banking uses in the area of ​​anatocism are not of a legal source; consequently, the applicable discipline can only be the legal one, i.e. the art. 1283 c.c. with the consequence which is confirmed by the principle according to which, in the matter of disputes relating to the relations between the bank and the current account customer, who complains about the nullity of the quarterly capitalization clause of the interest accrued with regard to a bank credit opening contract regulated in a current account and negotiated by the parties before 22 April 2000, the judge declared the nullity of the aforementioned clause for contrast with the prohibition of anatocism established by art. 1283 of the Italian Civil Code, must calculate the debit interest of the account holder without making any capitalization because the same art. 1283 c.c. it would also preclude a possible annual capitalization negotiation forecast. This is because these interests are removed from any type of capitalized calculation.”

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