I applied for a mortgage and during the preliminary investigation a suffering was found due to a guarantee given to the company of which I was an administrator, which failed on 15-12-1999. Can you cancel? If yes, how?

In light of the question asked, it is opportune to briefly explain the following:

Central risks: when the report is triggered

The risk center , managed by the Bank of Italy , collects the negative reports sent by financial intermediaries and banks, in relation to the state of insolvency, even potential, of the client (it is therefore not necessary that there has been, for example, a sentence of a judge who has ascertained the aforementioned debt situation).

In particular, according to the relevant provisions [1] , the report is triggered when:

– the total of cash and signature credits (granted or used) is equal to or higher than € 30,000;

– the value of collateral received by the intermediary is equal to or higher than € 30,000;

– the intrinsic value of transactions in financial derivatives is equal to or higher than € 30,000;

– the position of the customer is non-performing for a nominal value, net of losses, equal to or higher than € 250;

– the amount of transactions carried out on behalf of third parties is equal to or higher than € 30,000;

– the nominal value of receivables acquired for factoring transactions, non-recourse portfolio discount and credit assignment is equal to or higher than € 30,000;

– the non-performing position is fully transferred to a loss (in this case the value of the losses must be equal to or higher than € 250);

– the intermediary sold non-non-performing loans to third parties for a nominal value of € 30,000 or more;

– the intermediary sold non-performing loans to third parties for a nominal value, net of losses, equal to or greater than € 250.

Having said this, however, those reports are classified as non-performing where the intermediary, examining the client’s financial situation as a whole, considers as suffering the entire debt exposure of the same, independently, also in this case, by a judicial investigation on the same and from the forecasts, more less probable of loss, relative to the aforesaid debts [2] .

Central risks: when cancellation occurs

The reporting of a risk position is no longer due and therefore has the right to cancellation [3] , when:

– the credit is repaid by the debtor or third parties, also as a result of the liberating settlement agreement, of a credit composition agreement or of a remissory bankruptcy agreement. If there has been a partial repayment of the credit, a corresponding reduction of the amount reported is due;

– the credit is transferred to third parties;

– the competent corporate bodies, with specific resolution, have definitively acknowledged the irrecoverability of the entire credit or have renounced to start or continue the recovery proceedings;

– the credit has been fully prescribed [4] . The prescribed credits must no longer be reported starting from the recognition referred to the month in which the prescription is accrued, but the simple out-of-court notification of the prescription, does not entail the obligation for the intermediary to take it into consideration;

– the credit has been debited for individuals.

CONCRETE CASE

The report referred to by the reader could be deleted only if it was part of one of the hypotheses just listed (for example, since the reader speaks of 1999, it could be a debt that is prescribed).

Well, if you think you are in the aforementioned cases, you can ask for the cancellation:

– by extrajudicial request to the bank or to the financial intermediary responsible for the said undue report (but as you can imagine, often you get a negative or missing answer);

– by appeal to the Financial Banking Arbitrator. This is an out-of-court body, sponsored by the Bank of Italy, which could be used to decide on the matter. It does not require the assistance of a lawyer (even if it is advisable not to do without it, given the technical nature of the matter), it can be deposited online and is decided on the basis of the information and documentation attached to the appeal. It therefore presents very low costs (€ 20.00) and the advantage of solving the problem in a short time. However, it must be preceded by a complaint to be sent to the bank and the decision, even if positive, may not be respected by the sentenced intermediary (in the latter case, the news that the bank has not respected the referee’s decision would be made public);

– by resorting to the ordinary judiciary, through an ordinary or urgent legal action [5] . It would, of course, be the most expensive solution, even and not only for the necessary assistance of a lawyer, but it could be the inevitable one.

Having said this, it would be advisable for the reader to contact an attorney in any case to examine his situation in detail, thus highlighting, also by examining the documentation in his possession on the event if:

– there are the conditions to request and obtain cancellation;

– if and how, if positive, proceed accordingly, first of all with a due complaint to the bank, and then take, in the name and on its behalf, all the most appropriate initiatives to obtain the due cancellation as soon as possible.