What is banking law? What does a Cassation lawyer in Italy specialized in banking law and cases against banks deal with?
If you are also looking for answers to these questions, continue reading this article.
Banks are companies that simultaneously carry out the activity of savings collection and credit operations.
Today, many activities that were once reserved for banks are carried out by different entities, such as financial institutions, fifth assignment companies, financial promoters, debt recovery companies, and so on.
Banking law is consequently that branch of law, mainly civil law, which deals with contracts in which a bank (or one of the aforementioned entities) is a party, and the other party is the client.
It’s also banking law when discussing relationships between one bank and another, or relationships between banks and institutions such as the Bank of Italy, Consob, or the ECB, but these relationships might be of less interest to you if you’re reading here.
But what do lawyers specialized in cases against banks deal with?
Lawyers specialized in cases against banks deal with banking law and credit recovery.
Litigation against a bank is – increasingly often – only part of a client’s problems; by this, we mean:
a) that very often, those who have problems with a bank also have issues with the Revenue Collection Agency or with INPS for unpaid taxes and contributions;
b) that more and more frequently, the need for a dispute with a bank falls within complex debt situations to be managed with concordat procedures, debt restructuring agreements, or over-indebtedness procedures.
This leads us to answer the following question.
What is banking law?
Banking law is a part of the legal system that has:
extrajudicial aspects: when going to a bank to sign a contract, negotiating financing, or a complex financial operation, perhaps restructuring debt;
judicial aspects: when a banking contract ends up in a dispute, which could be either an active or passive dispute, as law firms specialized in banking law call them.
Active disputes are those in which the bank attempts to recover its credits, through injunctions, civil lawsuits, seizures, clawback actions, requests for bankruptcy which are now called requests for judicial liquidation;
Passive disputes are those suffered by the bank, receiving requests for compensation or reimbursement of undue payments, such as notifications from customers to recover interest on current accounts, repayments for early settlements, for usurious interest application, data erasure from risk centers, phishing scams, and so on.
A particular branch of passive disputes, which takes place outside the courtroom, is conducted before the Financial Banking Arbitrator, competent to hear disputes worth less than 200,000.00 euros and guaranteeing high expertise, short times, and minimal costs.
The bank’s lawyer
The bank’s lawyer is a very different subject from the one dealing with cases against banks.
Increasingly, banks rely on a few lawyers, called “trustees,” to whom they grant notarial power of attorney to handle a greater or lesser number of disputes between the bank and its clients.
The bank’s lawyer cannot represent clients in cases against other banks due to the difficulty of supporting clients’ claims (e.g., on usury matters) while arguing the opposite before the same judge.
The bank’s lawyer does their duty, even when serving a seizure notice, assuming an unsympathetic role, adhering (and adhering) to the law and the code of conduct in the exercise of their functions.
So, what does a law firm with experience in banking law deal with?
Many law firms, especially in major cities like Rome or Milan, dedicate their activity exclusively or predominantly to banking law.
In fact, what was once a specialization of very few has become a “trendy” activity over time, also considering the emergence of various lines of litigation against banks.
The activity of a lawyer experienced in banking law includes court hearings and document drafting for lawsuits, enforcement and insolvency proceedings, ABF procedures.
Not all law firms specializing in banking law also have expertise in finance and investments, such as losses from trading, forex, CFDs, investment portfolio management.
For all these matters, a lawyer specializing in banking law often writes:
applications for injunctions;
oppositions to injunctions;
payment orders (sometimes based on checks or promissory notes) and oppositions to payment orders and execution;
third-party seizure notices;
property seizures;
ABF appeals or ex art. 700 CPC to obtain the cancellation of illegitimate reports in the bad payer risk centers;
bankruptcy petitions or requests for judicial liquidation, requests for preventive agreements, over-indebtedness crisis settlement procedures;
ordinary revocation summons;
summons for the reimbursement of usurious interest;
Requests for compensation from FIR or FITD, for the compensation of victims of financial scandals, and the assessment of alternatives for those not entitled;
any other act related to a problem arising in a banking contract.
We could say that these are the same acts that any other civil lawyer writes, but the peculiarity of a lawyer dealing with banking law is that almost always the aforementioned acts follow the client’s default (or the client’s compensation claim), linked to the execution of a banking contract.
What are banking contracts?
Banking contracts, and therefore the contracts that form the basis of a lawyer’s activity in banking law, include:
mortgages, which in some cases can be suspended;
mortgage contracts accompanied by IRS;
leasing, movable or immovable;
personal financing contracts, including car financing;
current account contracts, with or without a credit line, which can lead to usury or compound interest issues;
fifth assignment relationships, which often lead to disputes concerning early termination;
credit card contracts, for usury problems or online frauds involving card duplication;
surety contracts, often invalid as also affirmed by the Antitrust;
modifications during the course of any of the aforementioned contracts.
The most frequent practices for banking lawyers in 2023
A banking lawyer in 2023 in Rome has dealt with many of the aforementioned issues, but among the most frequent cases are certainly:
matters related to fifth assignment and commissions paid at the time of termination;
cases related to postal savings certificates;
issues related to payments, wire transfers, and online scams such as phishing;
mortgage matters in Swiss francs, AssiMutuo Abbey Nation Bank practices, now against UniCredit and Aviva;
reports to risk centers, where clients request cancellation;
usury and compound interest disputes on current account contracts;
third-party seizures;
property seizures.
These and many other practices must have been dealt with by a law firm specializing in banking law in 2023.
Banking law and the 110% superbonus
Banking law issues are also relevant in the assignment of credits related to the 110% or 90% superbonus for building renovation interventions.
Many find themselves stuck in credit assignment practices due to the banks’ responsibilities.
If all procedures indicated by the bank have been followed, there is a possibility that the bank may incur liability for delay or loss of benefits.
Sometimes, these practices related to the 110% superbonus and credit assignments cannot be managed through ABF, as stated by the Coordination Board in 2022:
“The Arbitrator remains incompetent ratione materiae if the claim involves or presupposes the interpretation or application of tax rules, such as when disputes arise concerning procedures and/or assumptions related to the recognition of the tax credit itself.”
Clearly, what you found on this page is a very limited overview of the complex world of banking law, but we hope it has been useful to provide you with an overview of banking law and law firms specializing in banking law.
If you are looking for a Cassation lawyer specializing in banking law in Italy or in Rome, contact us for an initial consultation without obligation.
