Secured loans, contracts void in Lecce if appraisal is superficial

In each decree, the Court declared absolute nullity (Article 1418 of the Civil Code). It rejected the banks' opposition, but also declared the trustee's counterclaim inadmissible, because Article 206(4) of the Crisis Code does not allow for 'traditional' condemnation claims in proceedings opposing the state of liabilities.

The common thread of the pronouncements is that the granting of credit to the company that later fell into judicial liquidation is qualified as 'grave professional negligence' and 'abuse' when based on investigations that are 'uncritical, passive, inadequate and contrary to the principles of diligence imposed on the qualified banking operator'.

The College contested both the phase prior to disbursement (characterised by the failure to verify the requirements and economic-financial consistency) and the absence of subsequent monitoring on the use of the sums, in violation of Article 9 of Decree-Law 20/2023, which imposes permanent monitoring on financing assisted by public funds.

1) The most articulated case concerns a loan dated 18 January 2022 of EUR 150,000, 80% guaranteed by the SME Guarantee Fund. The decree explains at length why Article 5 of the Tub, on the sound and prudent management of banks, is not an abstract principle, but a mandatory rule whose violation can lead to nullity. The Court noted how it emerged from the anti-fraud report filed by the bank itself that the balance sheet analysis had not been conducted because it was deemed 'too synthetic'.

2) Another decree adds a decisive piece: it recalls the soluti retentio (Article 2035 of the Civil Code), citing the Supreme Court's ruling No. 16706/2020 on disbursement to a company in decay as conduct contrary to morality. This opens the door to the second orientation, that of the non-repetition of the capital as well, and mentions the possible criminal relevance of the conduct (Article 316-ter of the Criminal Code).

3) A third decree specifies that EU Regulation No. 1407/2013 also entails the obligation of a creditworthiness check.

4) The decree on a local bank is distinguished by the nullity declared 'in bundle' on the whole range of relationships (unsecured loan, commercial portfolio, current accounts), rejecting also the subordinate claim for the recovery of undue payments (Article 2033).

5) In the case of a nationwide bank, on the other hand, the trustee valorised that the bank itself maintained the company's current account, the balance of which had been almost constantly negative for years: a fact that made the defence of innocent reliance on the balance sheet impracticable.

6) A sixth decree values the negative average daily balances of the company current account held at another bank as an element that should have alerted the lending institution.

Attorney Rossi, what is at stake in this new line of litigation on state-guaranteed loans?

It is not only a matter between bank and liquidated company. Here the creditors' private interest intersects with the public interest, because the guarantees were issued by Mediocredito Centrale (Mcc) and Sace with state funds. If the contract is declared null and void by the courts, the bank loses its credit; but Mcc or Sace could also refuse to pay the guarantee or demand back what has already been paid to the banks. This is a cascading effect, involving the Treasury.

Who decides whether to admit the bank's claim or not?

The first filter is the receiver, a professional appointed by the court (usually a lawyer or an accountant), whose task is to administer the assets of the company in liquidation in the interest of all creditors. If the receiver proposes to exclude a claim, the bank can 'oppose' it before the delegated judge and then (as happened in Lecce, see article above, ed.) before the collegial court. But the receiver is not a judge: he is an auxiliary of the court, pursuing the interest of the mass of creditors.

The numbers of the Guarantee Fund are impressive. Is there a risk of a new wave of mass litigation, like the derivatives litigation of past years?

Let's look at the data: in 2025 the Mcc Fund accepted almost 249,000 applications for 45.7 billion in loans and 31.7 billion in guaranteed amounts in favour of 168,612 companies. Even assuming that only 1% of these transactions end up in litigation, we are talking about almost 2,500 potential cases and over EUR 300 million in dispute. We are not at the levels of derivative litigation, but the critical mass is there.

The courts are moving in short order: nullity, non-repetition, simple compensation.

The judgments on the merits oscillate between three very different orientations in their consequences: nullity blocks admission to the liabilities; non-recoverability (Article 2035 of the Civil Code) prevents even the recovery of the capital; compensatory liability, on the other hand, leaves the contract intact.

Is it necessary, as is often the case, for the Supreme Court to intervene?

It is urgent. Even if the Supreme Court jurisprudence cited in some decrees concerns more serious cases, such as conspiracy to commit bankruptcy. A ruling is needed to clarify the boundaries, not least because the public interest is at stake. In the meantime, the warning to banks is clear: strengthen investigations when there are state guarantees, documenting every check carried out.

SME Guarantee Fund. Established in 1996 and operational since 2000, the SME Guarantee Fund - managed by Mediocredito centrale (Mcc) - facilitates access to bank credit through partial public guarantees. With the pandemic, the role of Mcc and Sace was enhanced.

Creditworthiness. Some pronouncements have criticised banks for granting credit to undeserving individuals, relying on public cover. In these cases, the incorrect assessment of creditworthiness is considered potentially unlawful conduct.

Nullity of the contract. Part of the jurisprudence considers that banks granted credit in the absence of a proper creditworthiness assessment, relying on state cover. There are allegations of violation of criminal law or complicity in simple bankruptcy, resulting in the nullity of the contract and ineligibility for interest, fees and commissions.

Violation of decency. A more radical orientation holds that credit granted to unmeritorious enterprises covered by a public guarantee would violate public economic order and decency. This would result not only in the loss of interest, but also of the entire capital.

Responsibility for compensation. According to a third thesis, the violation of the rules on creditworthiness does not lead to nullity, but may only give rise to liability for compensation, leaving intact the bank's right to admission of the claim.