Insights

With judgment No. 22563/23, the Italian Supreme Court ruled on the revocation of a mortgage in the case of a mortgage loan. As a general rule, mortgages securing loans having the characteristics of a mortgage loan are not subject to revocation pursuant to Article 67 of the Bankruptcy Law and Article 166 of the Code on Bankruptcy and Insolvency, if they are registered within 10 days of the publication of the bankruptcy judgment (Article 39 of the Consolidated Banking Law). In the present case, however, the mortgage guaranteeing the performance of the obligations arising from the mortgage contract was deemed to be legitimately revocable pursuant to Article 67(1)(2) (i.e., extinguishment of pecuniary debts due and payable not effected with money or other normal means of payment), and 67(2) of the Bankruptcy Law, insofar as it was part of an overall transaction that provided for the sums disbursed on the basis of the mortgage loan to be used to settle a debt exposure arising from an overdraft. The Italian Supreme Court, in fact, re-qualifying the transaction as an "anomalous solutary transaction", held that the mortgage registered to guarantee the loan lost its land nature and, consequently, the benefit recognised to the relevant mortgages, i.e. the reduction to 10 days of the time limit for revocation, was also lost.