Banks and admission to liabilities in judicial liquidation: late applications for admission to liabilities in the Crisis Code

By Leonardo Di Brina* and Domenico Bonaccorsi di Patti**

ABSTRACT: The essay aims to analyze, also from the perspective of the banking class, the discipline of late applications for filing of liabilities, following the entry into force of the Crisis Code, also with regard to the amendments introduced by the so-called “Tax Code”. Corrective Decree N. 136/2024.

SUMMARY: 1. Premise – The reasons of an investigation – 2. The definition – The general lines of the procedure and its characteristics – 3. The late application – the deadline referred to in art. 208 CCII – 4. The late application – the content of the same – 5. The procedure for ascertaining the liabilities of late applications – reference to the rules on timely applications – 6. The grounds of appeal – the opposition pursuant to art. 206 – 207 CCII – the appeal to the Court of Cassation (referral) – 7. Ultralate applications – the deadline referred to in art. 208, paragraph 3, CCII – 8. The decree of inadmissibility inaudita altera parte pursuant to art. 208, paragraph 3, last part, CCII – prerequisites – the means of encumbrance – 9. Conclusions.

1. The relationship between the banking world and the insolvent company sees one of its most important moments in the assessment of liabilities[1], prompting contrasts – sometimes even bitter – between the creditor and the bodies of the procedures (by way of example, among the issues[2] that have often attracted the attention of case law, we note the written form in banking contracts,  the certain date in the contracts themselves[3], the burden of proof about the credit claimed, even to its extent, through documentation formed by the creditor [i.e. bank statements and so on][4]).

As is well known, the Crisis Code (CCII) has further accelerated the sub-procedure for the assessment of insolvency credits, through, in particular, a reduction in the deadlines for the submission of late applications for admission. This makes the position of those creditors – such as banks – more delicate, which traditionally have not always fast reaction times (especially where the credit has seen subjective changes on the asset side [e.g. in the case where the credit has been the subject of an assignment (one or, sometimes, more than one), or has been part of a package of credits subject to a securitization transaction],  with consequent complexities in the preparation of the evidentiary documentation aimed at admission).

The consequences of a reduction in terms are not insignificant, especially for some specific transactions (if we take into account, for example, the fact that the creditor bank pursuant to Article 38 of the TUB is required to insinuate itself into the liabilities, in order to be able to make “stable” any distribution obtained in the singular session, pursuant to Article 41 of the TUB[5]). The question of late admission also arises with regard to the bank creditor who has suffered the effects of a clawback action and has returned “what he had received” (who, pursuant to Article 171, CCII, “is admitted to the liabilities of the judicial liquidation for his possible credit”).[6] On the other hand, to some extent, the question of the formalization – with respect to the insolvency procedure, for the purposes of participation in the allocation – of the change in the active subjective position, during the procedure (which in the past, before the organic reform of the years 2006 – 2007, required the promotion of late application), remains to some extent, since today it is provided – under art. 230 CCII – that “if before the distribution the admitted credits have been assigned,  The trustee shall allocate the shares of the allocation to the transferees, if the assignment has been promptly communicated, together with the documentation certifying, with a deed bearing the authenticated signatures of  the transferor and the transferee, the assignment has taken place. In this case, the trustee shall formally rectify the liabilities. The same provisions apply in the event of subrogation of the creditor”.[7] In this case, therefore, there are no deadlines (except indirectly, given that the communication that took place after the allocation cannot be taken into consideration by the trustee).

In this perspective, the entry into force of the Crisis Code (CCII) (and the latest amendments introduced by the so-called corrective decree ter), therefore, constitutes an opportunity to formulate some considerations – albeit synthetic and provisional – on the new structure of the discipline, with particular regard to the regulation of late applications.

2. The Crisis Code (CCII) regulates late applications for filing of liabilities by importing a large (or perhaps, it would be more correct to say, very large) part of the provisions contained in the Bankruptcy Law (especially in Article 101), in the reading following the organic reform of the years 2006 – 2007, introducing – by legislative means – some small corrections which, to a large extent, are the result of the jurisprudential evolution formed on the previous law.

Article 208[8] of the Italian Crisis Code regulates applications for admission to the liabilities, on a late basis, identifying, first of all, the definition, through the provision of paragraph 1, which provides that “applications for admission to the liabilities of a credit, restitution or claim of movable and immovable property, transmitted to the trustee beyond the deadline of thirty days before the hearing set for the verification of the liabilities and no later than six months from the filing of the decree of enforceability of the liabilities are considered late”.[9] This deadline – continues the legislative provision – can be extended up to twelve months “in the event of particular complexity of the procedure”, by the court, “with the sentence declaring the judicial liquidation open”.

The same provision also provides the definition of the so-called applications ultra-late, e.g. those applications submitted after the deadline referred to in paragraph 1 (e.g. six months after the decree of enforceability of the state of liabilities of the timely applications) “until all the divisions of the assets have been exhausted”.

There are also fewer changes regarding the forms of late applications: they – as was the case in the previous Article 101 of the Italian Bankruptcy Law – are regulated by reference to the provisions relating to timely applications. And, in fact, art. 208, paragraph 2, CCII, provides that (establishes the last part of paragraph 2) “the provisions of articles 201[10] to 207 shall apply[11]“. The assessment procedure is also designed on that relating to timely applications, given that – according to the same paragraph 2 – “the procedure for the assessment of late applications shall be carried out in the same forms as referred to in Article 203”.[12] Since, moreover, the date of examination is not predetermined, the rule also provides that “when late applications are submitted, the delegated judge shall set a hearing for the examination of the same within the following four months, unless there are reasons of urgency. The trustee shall give notice of the date of the hearing to those who have submitted the application and to creditors already admitted to the liabilities”.

No technical defence is required, given that pursuant to the second paragraph of art. 201, CCII, “the appeal may also be signed personally by the party and shall be formed pursuant to art. 20, paragraph one-bis, or 22, paragraph three, of Legislative Decree no. 82 of 7 March 2005, as amended”.

With an opportune provision (considering the non-uniformity of positions on the subject) it is also provided that “the procedure introduced by the application referred to in the first paragraph is subject to the holiday suspension of the terms referred to in art. 1 of Law no. 742 of 7 October 1969”. The rule, however, does not appear to be entirely clarifying, if one has in mind that orientation that considers the holiday suspension applicable (or not) based on the subject of the claim (e.g., it has been held by the jurisprudence of legitimacy that applications concerning claims from subordinate employment are not subject to the suspension of deadlines[13]).

Even in the context of late assessment, creditors are required to provide themselves with a certified e-mail address, given that – as established by art. 201, paragraph 5, CCII (as reformulated following the entry into force of Legislative Decree no. 136 of 2024) – art. 10, third paragraph, CCII applies, according to which “in the event of failure to provide the certified e-mail address or its variations,  or failure to deliver the electronic message for reasons attributable to the recipient, all communications to the subjects referred to in paragraphs 1, 2 and 2-bis shall be made by filing in the electronic file^[14]“.

Still with regard to the general nature of the late assessment, the provision of art. 202, CCII, according to which “the application referred to in art. 201 produces the effects of the judicial application for the entire course of the judicial liquidation and until the exhaustion of the judgments and transactions that continue after the closure decree pursuant to article 235”.

The innovations introduced by the CCII with respect to the structure of late applications are, therefore, relatively limited, concerning, first of all, the reduction of the deadline for the submission of late applications, from twelve to six months, starting from the filing of the decree of enforceability of the state of liabilities[15].

The most important change is, however, the one relating to the management of so-called ultra-late applications. For them, it is provided that the without fault creditor who submits his claim after the term referred to in paragraph 1, is required to comply with the term of sixty days “from the moment the cause that prevented its timely filing ceased”. In the case of an ultra-late application, then, when the application is manifestly inadmissible “because the applicant has not indicated the circumstances on which the delay depended or has not offered documentary evidence or has not indicated the means of proof he intends to use to demonstrate its non-imputability, the delegated judge declares the inadmissibility of the application by decree. The decree can be appealed pursuant to Article 124”. Except for these interventions mentioned above (the second of which, above all, is of no small importance), as will be noted below, the overall structure does not record any particular innovations with respect to the l.f. and, therefore, most of the solutions adopted under the force of art. 101, l.f.^[16], would also seem to be validly applicable in relation to judicial liquidation. Therefore, we will also proceed to verify the validity of the solutions that have emerged in the case law, in the light of the legislative changes that have taken place.

3. Art. 208 CCI begins – as mentioned – by offering the definition of late application: a late application is one (for admission to the liabilities of a credit, for restitution or claim of movable and immovable property), transmitted to the trustee after the deadline of thirty days before the hearing set for the verification of the liabilities and no later than six months from the filing of the decree of enforceability of the state of liabilities.

This deadline “in the event of particular complexity of the procedure, the court, with the sentence declaring the judicial liquidation open, may extend the latter term up to twelve months”. In this way, therefore, “those predominant requirements of efficiency and speed of the procedure and simplification of the operations of ascertaining liabilities, which had characterized the amendments made to the latter article by the reform of 2006 and 2007, are accentuated”.[17]

The power to extend the term set by the rule is attributed to the court and must be exercised within the sentence opening the judicial liquidation, since it does not seem possible to adopt a specific measure “in the course of the procedure”.[18]

The term in question also appears to be subject to holiday suspension, considering that the institution of the aforementioned suspension is expressly referred to with regard to the procedure of applications for filing of liabilities, without any further clarification.

4. As already stated, with regard to the content of the late application, the provision of art. 208 CCII does not contain any further specification. More precisely, the content of the late application can be deduced from the express reference to art. 201 CCII,^[19] according to which even the (late) application must contain “a) the indication of the procedure in which you intend to participate and the creditor’s personal details and his tax code number[20]; b) the determination of the amount to be lodged in the liabilities, or the description of the property whose restitution or claim is sought, or the amount of the claim for which it is intended to participate in the apportionment if the debtor against whom the judicial liquidation is opened is a third party mortgagee or pledger[21]; c) a brief statement of the facts and elements of law that constitute the reason for the claim; d) any indication of a pre-emption title, as well as a description of the property on which the pre-emption is exercised, if this is of a special nature; e) the indication of the certified e-mail address, to which all communications relating to the procedure must be received, the changes to which must be communicated to the liquidator”.[22] This compendium has been partially reformulated, by Legislative Decree no. 136 of 2024, and, in particular, with regard to letter a), the reference to bank details, the subject of a newly introduced letter, namely letter e-bis), according to which the application must contain “the indication of the bank details”, has been deleted. The choice appears to be shared, given that the original wording affected the omission of this indication with the sanction of inadmissibility (a sanction, evidently, of particular rigor, compared to a fact that is all in all objectively not necessary for the scrutiny of the credit claim).

Therefore, even in late proceedings, the observations made about the written form in the banking contracts, the certain date in the contracts themselves[23], the burden of proof about the credit claimed, even to its extent, through documentation formed by the creditor are valid.

The remaining part of the same second paragraph of art. 201, CCII (which establishes that the application “within the term established by the first paragraph, is sent to the certified e-mail address of the trustee indicated in the notice referred to in art. 200, together with the documents referred to in paragraph six. The original of the debt instrument attached to the application is filed with the court registry”), is applicable to the late assessment of liabilities[24]. Obviously, it must be considered that the creditor is required to attach to the application the documents proving his credit, as well as to provide for the deposit of the original of any credit instruments at the registry, given the existence of the requirement underlying the provision also for credits filed late (i.e. to make it possible for the liquidator to bring actions against debtors in the process of recourse,  who – in the absence of possession of the title – could not demonstrate his legitimacy).

The sanction – evidently also applicable to late applications – for non-compliance with the provisions of the fourth paragraph of art. 201, CCII, is not insignificant, given that the rule – sub-paragraph four – establishes that “the appeal is inadmissible if one of the requirements referred to in letters a), b), or c) of the third paragraph is omitted or absolutely uncertain. If the requirement referred to in letter d) is omitted or absolutely uncertain, the credit is considered unsecured”.[25]

In a view to speeding up the procedure, as is well known, the fifth paragraph of art. 201, CCII, establishes that “if the indication referred to in the third paragraph, letter e) is omitted, as well as in cases of non-delivery of the certified e-mail message for reasons attributable to the recipient, art. 10, third paragraph” (a provision that establishes, as is well known, that “communications to persons for whom the law provides for the obligation to have a digital domicile and who have not established or communicated it are carried out exclusively by filing it in the registry”). [26]

The burden of allegation is established by the following sixth paragraph, according to which “the documents demonstrating the right asserted shall be attached to the application” (by analogy with what was already provided for by the previous bankruptcy law, the ninth paragraph provides for the power for the judge “at the request of the party”, to order “that the registrar take a copy of the bearer or bar securities presented and return them with the annotation of the application for admission to the liabilities”)[27]. It is considered that this instrument has substantially precautionary content, with the consequence that the application must be supported by the double requirement of prima facie case and periculum in mora[28].

With specific regard to requests for restitution or claim, the provision relating to timely assessment then provides that “with the request for restitution or claim, the third party may request the suspension of the liquidation of the assets subject to the request”.[29] This provision seems to be applicable also to late assessment (and, indeed, the remedy of suspension must be considered possible all the more considering that it is presumable that the liquidation of the assets may be at a more advanced stage at the time of submission of the late application).

The value of admission to the liabilities, which also concerns late applications, is governed by art. 204, fifth paragraph, CCII, according to which “the decree that makes the state of liabilities enforceable and the decisions taken by the court at the end of the proceedings referred to in art. 206, limited to ascertained receivables and the right to participate in the allocation when the debtor has granted a mortgage to guarantee the debts of others, produce effects only for the purposes of the competition”.[30] The rule, therefore, limits the binding nature of the assessment exclusively to intra-bankruptcy events (with the clarification that this does not apply to rulings relating to claims and restitution, for which res judicata is attributed[31]).

Creditors admitted late – according to the provisions of art. 226, CCII, have the right “to partecipate to the sums already distributed within the limits of what is established in article 225. The holder of rights to movable or immovable property, if he proves that the delay in submitting the application was due to a cause not attributable to him, may request that the liquidation of the property be suspended until the right has been ascertained. Article 208, paragraph 3 shall apply (the provision replaces the original art. 101, paragraph a 3, l.f.[32]).

The rule obviously also applies to banks that have mortgage or pledged credits.

As mentioned, therefore, the rule referred to in art. 226 CCII[33], provides that the creditor who has filed late has the right to participate in the distributions of the sums already distributed within the limits of what is established in art. 225 CCII, i.e. he contributes “only to the distributions subsequent to their admission in proportion to the respective credit, without prejudice to the right to withdraw the shares that would have been due to them in the previous distributions if assisted by causes of pre-emption or if the delay it depended on causes not attributable to them”.[34]

The same principle of safeguard must also be considered applicable to ultra-late creditors, in the absence of different specific provisions. For them, however, the ascertainment of absence of fault has much greater significance, constituting a prerequisite – first of all – for admission[35].

As regards the relationship between timely assessment and late assessment (which, in the current regulatory framework, constitute different phases of the procedure for assessing liabilities), it should be noted that on several occasions, case law has had the opportunity to rule on this point. In particular, it is considered that the timely filing of a filing with the liabilities precludes the possibility of filing a late filing unless there is a novelty of the claim asserted, both for petitum and for causa petendi[36].

The jurisprudence of the supreme Court[37], in fact, has explicitly stated that decisions relating to the ordinary filing of claims have the value of internal res judicata, compared to late applications. Therefore, a claim excluded in the context of the timely assessment cannot be asserted late, but a different claim can be admitted, even if it derives from the same relationship (in this specific case, employment).[38]

In this perspective, therefore, the request for higher amounts based on the same title was considered inadmissible[39]. With the clarification, however, that the late application with distinct objects, even if arising from the same relationship, is admissible[40]. Similarly, the claim to assert a cause of pre-emption for a credit already admitted unsecured was declared inadmissible[41].

And, again, the late filing to request interest, relating to a credit admitted in a principal line in a timely manner, was deemed inadmissible[42].

Also in this case, the issues find citizenship in banking matters, where the debtor often has multiple relationships with the intermediary.

On the other hand, it was considered admissible to submit a new application late, subject to withdrawal of the previous application, provided that it was before the Court (e.g. the Delegated Judge to the proceeding) had ruled on the original application[43]. Such a reconstruction can undoubtedly also be applied in the current regulatory context.

5. As already mentioned, paragraph 2 of art. 208, CCII provides that “the procedure for ascertaining late applications shall be carried out in the same forms as referred to in article 203”. With regard to the identification of the verification hearing, then, the rule continues, “when late applications are submitted, the delegated judge sets a hearing for the examination of the same within the following four months, unless there are reasons of urgency”. Notice of this decree is given by the trustee, given that he “gives notice of the date of the hearing to those who have submitted the application and to creditors already admitted to the liabilities”. The structure of the procedure – as already mentioned – is structured along the lines of timely assessment, in consideration of the fact that “the provisions of Articles 201 to 207 shall apply”.

Therefore, according to a certain perspective, even with regard to the assessment of late claims, there is a “cumulative judgment, intended for the simultaneous and cross-examination of the creditors of a plurality of claims”.[44]

With regard to the content of the draft statement of liabilities, which must be drawn up by the Curator, it seems possible to recall, also in this case, the corresponding provision relating to the timely assessment (this is Article 203, CCII), and which provides that the trustee “prepares separate lists of creditors and holders of rights on movable and immovable property owned or in possession of the debtor, submitting for each his reasoned conclusions. The trustee may object to the extinguishing, modifying or impeding facts of the right asserted, as well as the ineffectiveness of the title on which the credit or pre-emption is based, even if the related action is time-barred”.[45]

Article 203, fourth paragraph, CCII, moreover, has weakened the role of the debtor with respect to the formation of liabilities, given that today it is simply provided that “the debtor may request to be heard”, whereas the previous bankruptcy law also gave the bankrupt the right to make observations on the draft statement of liabilities within the same term granted to creditors^[46]. It should be noted, however, that Legislative Decree no. no. 136 of 2024, introduced a specific faculty for the debtor, in the event of verification of requests for restitution or claims, providing, under art. 204, paragraph 5, CCII, that when the procedure has – precisely – as its “object requests for restitution or claim, the debtor may intervene and file an appeal pursuant to Article 206”. The amendment is justified by the fact that the assessment of these applications is not only effective in the insolvency proceedings[47]. Which, then, also legitimizes the debtor to appeal.

6. The cognition becomes full in the further (and only possible phase) of the possible appeal remedies, provided for by art. 206 CCII.

The CCII, in the discipline dedicated to appeals against the decree of enforceability of the state of liabilities, along the lines of what was established by the bankruptcy law in Article 98, provides for a wide catalog of remedies with respect to the decree of the delegated judge. In particular, art. 206, CCII, establishes that “an opposition, challenge of the admitted credits or revocation may be filed against the decree that makes the state of liabilities enforceable”. ^[48]

On this point, since these are issues similar to those that arise when dealing with the appeals to the decree of enforceability of the timely state of liabilities, it can only refer to the elaboration relating to this phase[49].

Suffice it to recall here that the reaction of the creditor who sees his or her application rejected is temporally contingent by art. 207, paragraph 1, CCII, which provides that the opposition must be filed “by appeal within the peremptory term of thirty days from the communication referred to in Article 205 or, in the case of revocation, from the discovery of the falsity, fraud, error or document referred to in Article 206,  paragraph 5”.[50]

The search for a time limit, it is noted – in addition to the procedural provisions referred to in art. 207 dedicated to the temporal scanning of the trial – also in the specific rule referred to in paragraph 14 of the same art. 207, CCII, according to which the decree defining the appeal “is communicated by the registry to the parties who, in the following thirty days, may appeal to the Court of Cassation”, with the double consequence that, first of all, the parties do not have access to a second instance of merit,  and, secondly, that the appeal for legitimacy is subject to the reduction of the time limits.

7. The regulation of ultra-late applications[51], as mentioned, is subject to further adjustments and establishes that “after the deadline referred to in paragraph 1 has elapsed, and in any case until all the divisions of the assets of the judicial liquidation have been exhausted, the late application is admissible only if the applicant proves that the delay was due to a cause not attributable to him and if he transmits the application to the liquidator no later than sixty days from the time it ceased the cause that prevented its timely filing”.[52]

Already art. 101, paragraph 1, of the Italian Bankruptcy Law, in providing – in the reading deriving from the 2006 organic reform – precise time limits for the submission of applications for admission to the liabilities by insolvency creditors, allowed the creditor “after the expiry of the term referred to in the first paragraph, and in any case until all the distributions of the bankruptcy assets have been exhausted,  late applications are admissible if the applicant proves that the delay was due to a cause not attributable to him”.[53]

The CCII rule replicates – in substance – the aforementioned structure and also provides for the possibility of submitting applications for admission to the liabilities beyond the deadline set by art. 208, CCII and, in the new regulation, identifies the need – today – for a triple requirement, to overcome the time barrier set by the legislator.

On the one hand, the ultra-late application – even in the structure of the CCII – is admissible “if the applicant proves that the delay was due to his home not attributable to him”. On the other hand, it is necessary that the asset allocations have not been exhausted. This second requirement, however, also seems to refer to a (supervening) lack of interest in admission. The legislator of the CCII has then provided for a further time constraint: the ultra-late application becomes inadmissible if it is submitted after the deadline of sixty days from “from the moment the cause that prevented its timely filing ceased”.

In order to overcome the first filter, therefore, also with regard to the rule contained in the CCII, the problem arises of identifying the parameters of admissibility of applications submitted after the deadline as mentioned above, in terms of the without fault running of the deadline.

Once again, the elaboration formed under the force of the bankruptcy law is of particular assistance to the interpreter. Thus, the hypotheses most analyzed by the jurisprudence are those of the creditor who has not been notified [54] and the “impeded” creditor, i.e. the creditor who can only take action as a result of a procedural sequence initiated, moreover, by other parties (the most common example is the collection agent, who, as an agent, can act only after the formation of the roles by the taxing body. It should be noted, however, that the case law of the Court of Cassation in relation to tax credits, with specific regard to the need or not for the prior notification of the tax notice and the insinuability of the tax credit on the basis of registration alone, has experienced a first, older phase, which considered the notification of the payment [55]notice essential; more recently, however, the Court of Legitimacy has established that the tax authorities, in order to assert their claims in the bankruptcy liabilities, when acting through the collection agent, may limit themselves to attaching the extract of the tax roll containing the receivables claimed against the taxing entity towards the bankrupt debtor[56]).

They are contrasted with the cases relating to the supervening creditor. This category includes the promissory purchaser or the financial tenant whose receivables (in the one case, for the credit resulting from non-performance, in the other, for the credit relating to the rents to expire to the extent of the difference between the proceeds from the sale of the asset and the amount due under the contract) are susceptible to assessment only following the dissolution of the relationship pending the proceedings. These creditors, although claiming claims that are necessarily subject to assessment in bankruptcy, see the prerequisites for their claim materialize only following the dissolution (which is only possible) by the bankruptcy trustee, of the contractual relationship stipulated at the time with the bankrupt. Again, another example of a supervening creditor is the one whose credit arises from the termination of the business lease contract [57]. These hypotheses are characterized by the fact that the moment – which is also possible – in which the prerequisite for the filing of the claim is materialized may well occur after the expiry of the term referred to in art. 208, paragraph 1, l.f.

It is also necessary, even today, to recall the peculiarity of the position of the creditor in pre-deduction, [58]whose credit, even if arisen during the course of the proceedings, if contested, even in the current regulatory framework, is subject – for the purposes of the assessment – to the so-called ordinary regime, given that Article 222, CCII[59] (as was the case with respect to Article 111bis, Bankruptcy Law, made explicit reference, in its entirety,  to Title V of the Bankruptcy Law and therefore to Art. 101, l.f.[60]) refers to the rules on the assessment of liabilities.

All these creditors are therefore destined, therefore, tendentially, not to be able to comply with the deadline provided for by art. 208, CCII, and to be able to assert their claims in an ultra-late manner (as well as creditor who pursuant to Article 171, CCII, “is admitted to the liabilities of the judicial liquidation for his possible credit”).

As for the first prerequisite – absence of fault – given that it is believed[61] that the rule referred to in art. 208, paragraph 3, CCII, provides a mechanism for reinstatement, by analogy with the provisions of art. 153 of the Code of Civil Procedure (so that the provision must be considered an explanation of the general rule referred to in the rule just referred to contained in the Code of Procedure), reference to the elaboration matured is frequent,  in general, by the doctrine on the subject of non-performance of obligations.

In particular, according to the interpretation that appears preferable, the delay “dependent on causal factors external to the will of the same (creditor; ed.), such as force majeure, fortuitous circumstances or blameless error, attributable to the impossibility of performance for reasons not attributable pursuant to art. 1218 of the Civil Code. and provided that the super-late creditor puts forward in the application – under penalty of inadmissibility – the reasons for the non-culpable delay”[62] (without prejudice to the widely shared[63] conviction – and now legislated – according to which the burden of proof of the absence of fault of the delay is to be placed on the applicant creditor, who, in the context of the application for admission, must – at least – attach the facts that led to such delay and his not faultiness).

The jurisprudence has, therefore, developed a wide range of cases relating to the blamelessness of the creditor[64]. On the other hand, as regards the hypothesis of the “supervening” creditor, it is the contingency itself that constitutes ex se the non-attributable cause of the delay (this last finding, substantially undisputed, had become ulterior before the entry into force of the CCII, given that the subjection of the “supervening” creditor to the discipline of the “ultra-late” creditor had, finally, been denied by some jurisprudence of legitimacy[65]).

The most recurrent case was (and is), moreover, linked to the failure of the creditor to receive the notice pursuant to Article 200 of the Italian Crisis Code (formerly the notice pursuant to Article 92 of the Italian Bankruptcy Law). In this regard, not without some uncertainty, it has been noted that this circumstance constitutes a hypothesis falling within the case at hand, without prejudice to the contrary proof – which can be provided by the bankruptcy trustee – of knowledge through various means[66], thus integrating a presumption of non-knowledge of the pendency of the procedure (and, consequently, of absence of fault in the delay)

Several hypotheses examined by the case law, with oscillating solutions, have concerned situations characterized by objective complexity of the preparatory process for the preparation of the application for admission to the liabilities (it could be the case of application submitted by a bank of significant size).[67] It has also been stated that the provision of a predetermined procedural procedure, although articulated and with the intervention of several subjects, does not constitute ex se exemption for delay, especially when the procedure in question ultimately belongs to the sphere of availability of the creditor[68].

As for the second prerequisite – i.e. the exhaustion of the allocation of assets – in practice, it hardly seems to be able to assume an autonomous scope.

The hypothesis – probably almost a “school” hypothesis – in which all the divisions of the assets have been exhausted[69] and the deadline for the submission of the late application for filing has not yet expired, the application itself will in any case be destined for a declaration of inadmissibility.

The constraint dictated by the exhaustion of the distributions can, on the one hand, be interpreted as a codified hypothesis of a supervening lack of interest in admission, and, on the other hand, represents the need for the procedure to be able to quickly reach its closure (when its function of insolvency distribution has been exhausted), being, evidently, the general interest in the conclusion of the liquidation, prevailing over the interest – of the individual creditor –  to ascertain their credit[70].

The need to protect the limited procedural scan in the procedure for the formation of liabilities list entails the need to introduce the ultra-late application within a reasonable period of time (beyond which, it is to be considered that the without fault or supervening creditor loses the chrism of not responsible of the delay).

In addition to these first two requirements, the CCII introduce a third admissibility prerequisite, expressly introduced by the coders of 2019, namely the requirement that the application must be introduced within sixty days “from the moment in which the cause that prevented its timely filing ceased”, resolving an interpretative dispute that – on several occasions – had landed before the Supreme Court (various solutions had been proposed; according to a first perspective,  the term should be identified in 90 days, in analogy with what is provided for the filing of timely applications, arguing from the deadline for the scheduling of the hearing for the verification of timely applications for admission to the liabilities list set by art. 16, Bankruptcy Law [71]. On the basis of another, different, reconstruction, the term in question should have been set at 12 months from when the credit arises (or from when it can be enforced), applying by analogy the same term set by art. 101, paragraph 1, Bankruptcy Law [72]; secondly, a further reconstructive solution, finally, the fixing of the term in question should have been left to the Delegated Judge, according to a discretionary deliberation, of congruity on a case-by-case basis, since no certain reference can be found in the legal system for an analogical application of different terms[73]).

As mentioned, the legislator of the reform has definitively resolved the diatribe, reconciling the need to balance the right of creditors to have their claim ascertained in the competition (and thus be able, possibly, to participate in the allocations), with the general interest in a reasonable duration of the insolvency procedure, and, in particular, of the phase of ascertainment of liabilities.

With regard to the start of the term in question, it must be considered that it must refer, respectively, to the knowledge of the pendency of the insolvency proceedings, to the emergence of the credit, or to the cessation of the impediment to enforce the credit itself, referring, therefore, both to the creditor who was not notified or “impeded”, and – probably – also in the case of “supervening” creditors.

8. The CCII has introduced a specific novelty with respect to art. 101, Bankruptcy Law, providing for a particular screening method for ultra-late applications that we could define as “defective” ictu oculi. The rule states that “when the application is manifestly inadmissible because the applicant has not indicated the circumstances on which the delay depended or has not offered documentary evidence or has not indicated the means of proof he intends to use to demonstrate its non-imputability, the delegated judge declares the inadmissibility of the application by decree. The decree can be appealed in accordance with Article 124”. [74]

The adversarial process becomes full in the further (and only possible) phase of the possible complaint, provided for by the third paragraph, last part, pursuant to Article 124 of the Italian Crisis Code[75].

The legislator has therefore given an express solution with respect to the various critical issues that have arisen in practice, giving continuity to specific guidelines. The case law had, in fact, identified different solutions regarding the need for an autonomous preliminary cognisance of the cause of excusability, possibly on a summary basis[76], or the obligation to give rise directly to the opening of the credit assessment phase together with the knowledge of admissibility[77].

The first position, in turn, was divided into various sub-positions, e.g. it was discussed whether the Judge should decide by decree, after hearing the liquidator, or after hearing both the trustee and the creditor, or, finally, whether it could assess the admissibility of the claim inaudita altera parte ([78]). The CCII has, in fact, given space to the last of these solutions that have appeared in practice.

Hence the identification of the appeal remedy against the decree that decides on the admissibility of the delay in terms of faultless, since the complaint pursuant to Article 124 CCII has been expressly provided[79].

As for the methods of ascertaining the ultra-late liabilities, under the force of l.f.[80], had emerged two practices: some offices have provided for the need to set a single, periodic hearing, with a draft cumulative statement of liabilities, in compliance, as far as possible, with a principle of concentration in the treatment; in other offices, on the contrary, the procedure adopted has seen the setting of a single hearing for each ultra-late creditor, with a draft of a single statement of liabilities (this in order,  evidently, to proceed with a treatment as soon as possible of each request).

The reactions of the other admitted creditors, in hypotheses harmed by the unlawful admission of the ultra-late creditor, are to be traced back to the remedies provided for by art. 206 CCII. The terms provided for by art. 207 CCII will start from the knowledge of the admission made by the creditors already admitted, to whom the trustee must send notice pursuant to art. 205 CCII. In the current regulatory framework, with the introduction of communications by certified email, this fulfilment will be greatly facilitated and there will undoubtedly be greater stability of liabilities than in the past[81].

Finally, it should be remembered that late creditors, as is known, pursuant to art. 225, CCII[82], referred to in art. 208, paragraph 3, CCII, participate to distributions subsequent to admission. Where, however, the credit is secured by a preference, the lateness does not prevent the creditor from being fully satisfied, since he is entitled to withdraw the shares that would have been due to him, pursuant to Article 226 of the Italian Crisis Code. The same rule applies to without fault unsecured creditors, admitted late.

In the absence of specific provisions, the provision seems to apply both to late creditors and to ultra-late creditors (for whom, moreover, the ascertainment of absence of fault has much greater significance, constituting a prerequisite – first of all – for admission [83]).

9. As already noted, the system of late applications for admission to the liabilities list appears to have been the subject of – in general – non-substantial interventions by the CCII (except for what has been said about ultra-late applications). Indeed, it is a recognition of the substantial effectiveness of the model introduced by the organic reform of 2006-2007, compared to the structure contained in the original Bankruptcy Law, characterized by the difficulty of proceeding with a unitary (or, at least cumulative) treatment of late applications. At the same time, the compression of the deadlines for the submission of applications, although it may lead to a further streamlining of the phase of assessment of liabilities, does not necessarily reconcile the rights of creditors, whose late reaction is often not the consequence of inaction, but can be determined by factors completely unrelated to the sphere of the creditor himself. On the other hand, the sacrifice of rights on the altar of speed and efficiency does not always lead to desirable results. This is particularly evident where the late creditor belongs to the world of credit (be it a bank or an intermediary who became the holder of the credit at a later time). Once again, it will be necessary for the application of the new rules to be examined over time, in order to test the goodness of the legislator’s choices.

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[1] The theme is explored by S. Rossetti, Il credito della banca e la sua ammissione al passivo fallimentare, 10 gennaio 2022, in https://dirittodellacrisi.it/articolo/il-credito-della-banca-e-la-sua-ammissione-al-passivo-fallimentare, which punctually examines the operational aspects of the assessment of receivables using, as a perspective, “an analysis of the most frequent cases that arise before the delegated judge during the assessment of the liabilities, with specific reference to applications for insinuation, statistically very frequent, which have as their object the negative balances of current account contracts, often linked to other contracts (such as credit facilities, advances, etc.)”. The importance of banking operators with respect to the regulation of business crisis is much broader, especially in the current regulatory framework with specific regard to the out-of-court phase of resolution of the crisis itself; regarding e.g. – not without reason – Bissocoli – Turchi, Il ruolo dei creditori finanziari nella composizione negoziata: opportunità, rischi e proposte di linee guida, 29 dicembre 2022, in https://ristrutturazioniaziendali.ilcaso.it/uploads/admin_files/bissocoli-turchi-29-12-2022-RA-b4f60.pdf, 3, note that “it is known that in Italy financial creditors generally play an essential role in out-of-court solutions for the recovery of companies. Most of the latter are, in fact, made up of undercapitalised SMEs (i.e. characterised by the preponderance of debt capital over equity) and financed exclusively by traditional banking institutions. Therefore, the recovery usually presupposes an agreement with the financial creditors aimed at restructuring the debt (through the relative write-off and deferral in most cases, or deferral and consolidation in cases of more contained criticality)”. The theme has been well known and explored for some time and is still current (consider that, in a regulatory context of the past, many question were already studied by the doctrine, ad ex. cf. Capriglione, Crisi d’impresa e attività bancaria: orientamenti recenti e prospettive di riforma, in Banca, borsa, etc., 1981, 1 ss.).

[2] These are problems that are inspired by the fact that “during the verification of the liabilities, both in its necessary phase and in the eventual one, the Trustee does not act as the successor of the bankrupt entrepreneur in the disputed relationship, but rather as a third manager of his assets for the benefit of the estate” (so S. Rossetti, Il credito della banca e la sua ammissione al passivo fallimentare, cit., 9). More generally, cf. also Di Brina – Picardi, Il contenzioso bancario, Milan, 2019, where the issues are the subject of extensive treatment, including case studies.

[3] On which see, among others, Sangiovanni, Ammissione al passivo fallimentare di crediti bancari da conto corrente e data certa, in Nuovo Diritto delle Società, 2020, 669 et seq. In jurisprudence, fa le tante, Cass., 16 November 2022 no. 33724, in Rep. Foro It. 2022, Bankruptcy, no. 159, according to which “on the subject of admission to the state of liabilities of the bankruptcy of the credit claim deriving from the negative balance of the bank account, the ad substantiam form provided for this type of contract postulates that proof of credit cannot be offered through the account statements sent to the account holder during the relationship,  but must necessarily be rendered through the production in court of the contractual deed with a certain date pursuant to Article 2704 of the Italian Civil Code and as such enforceable”; more precisely, again, Cass., 10 April 2018, no. 9074, according to which “when ascertaining the state of liabilities, the lack of a certain date of the contract produced as proof of the credit entails the unenforceability of the clauses reported on the relevant documentation against bankruptcy, but this does not exclude that the payment of one or more sums by the creditor may be proven and,  therefore, both the existence of a corresponding repayment credit in the principal line and the contractual nature of the credit itself; it follows that this unenforceability only excludes that the clauses reported in the documentation without a certain date can be considered for the purposes of the effective regulation of the relationship. (In application of the aforementioned principle, the S.C. ruled out that the admission to the liabilities of a credit claimed by a bank in a capital line and based on two credit lines deriving from a current account overdraft and an unsecured loan – both documented by contracts without a certain date – implied the implicit recognition of the full enforceability of the contracts themselves,  and therefore rejected the appeal of the opposing bank, which complained about the erroneousness of the decree with which the delegated judge had excluded the ultra-legal interest, admitting it instead at the legal rate)”.

[4] As noted – among many others – by Cass, 4 June 2019, no. 15219, in Rep. Foro It. 2019, Bankruptcy, no. 346, according to which “if a bank intends to insinuate itself into the liabilities of a bankruptcy by proposing a reason for credit deriving from an obligatory relationship settled in a current account, it has the burden, in the opposition to the state of liabilities, to give full proof of its credit, according to the provisions of the general rule of art. 2697 of the Italian Civil Code, by filing the documentation relating to the performance of the account, without being able to claim to oppose to the trustee, given his position as a third party, the effects that, pursuant to Article 1832 of the Italian Civil Code, derive, between the parties to the contract, from the approval, even tacit, of the account by the account holder, who later went bankrupt, and from his forfeiture of appeals”. Or, again, Cass., 23 October 2019 no. 27201, in Foro Plus, according to which “the bank’s credit must be proven with the full reconstruction of the debit and credit, which involves the indication of all transactions, starting from the first until the closure, while the reference to the balance recorded on the date of closure of the account and the documentation relating to the last period of the relationship is insufficient,  given that the latter does not allow to verify the amounts debited in previous periods for passive transactions and those relating to interest, the recognition of which in the account led to the determination of the amount that constitutes the basis of calculation for the subsequent period”.

[5] On the subject, see, for example, Attanasio, Il privilegio fondiario ed il Codice della Crisi, 25 settembre 2023, in https://dirittodellacrisi.it/articolo/il-privilegio-fondiario-ed-il-codice-della-crisi.

[6] In this regard, see, for all, Carrioli, Commentary on art. 171, in Commentario Breve alle leggi su Crisi d’Impresa e Insolvenza edited by MAFFEI ALBERTI, VII ed., Padua, 2023, 1296, as well as, at the monographic level, Ferri jr, Le pretese del terzo revocato, nel fallimento, Milan, 2011.

[7] On the subject, cf. Guerrini, Commentary on art. 171, in Commentario Breve alle leggi su Crisi d’Impresa e Insolvenza a cura di MAFFEI ALBERTI, VII ed., Padua, 2023, 1787 ss.

[8] Art. 208 CCII has not been amended by the latest corrective decree referred to in Legislative Decree no. 136 of 13 September 2024, recently published in the Official Gazette no. 227 of 27 September 2024.

[9] The legislator of the Code, with respect to the l.f., has therefore, first of all, reduced the term of admissibility from twelve to six months.

[10] Art. 34, Legislative Decree no. 136/2024, subparagraph 2, provides that “the following amendments are made to Article 201 of Legislative Decree no. 14 of 12 January 2019: a) in paragraph 1, after the word “mortgaged”, the following are inserted: “or pledged”; (b) in paragraph 3, the following amendments shall be made: (1) in point (a), the words ‘, as well as the applicant’s bank details or the declaration of wish to be paid by means of a method other than crediting a bank account, established by the delegated judge pursuant to Article 230(1)’ shall be deleted; (2) in point (b), after the words ‘if the debtor against whom bankruptcy is opened, is a third party mortgagee’, the following shall be inserted: ‘or pledge’; (3) in point (e), the punctuation mark ‘.’ shall be replaced by the following: ‘;’ (4) the following is inserted after point (e): ‘(e-bis). the indication of the bank details.’. (c) paragraph 5 shall be replaced by the following: ‘5. Article 10(3) shall apply.'”. As for the time and methods of filing the filings, the same rule, sub paragraph 1, stabilize that “applications for admission to the liabilities of a credit or claim of movable or immovable property included in the procedure, as well as applications for participation in the allocation of the sums obtained from the liquidation of assets included in the procedure mortgaged as security for the debts of others,  shall be lodged with an appeal to be transmitted pursuant to the second paragraph, at least thirty days before the hearing scheduled for the examination of the state of liabilities”.

[11] Art. 34, Legislative Decree no. no. 136, subparagraph 5, amended art. 207, as follows: “In Article 207 of Legislative Decree No. 14 of 12 January 2019, the following amendments are made: a) in paragraph 2, letter c), the words “facts and elements of law” are replaced by the following: “grounds”; (b) in paragraph 3, the words ‘and shall fix by decree the appearance hearing within sixty days of the filing of the application’ shall be deleted and, after the first sentence, the following shall be added at the end: ‘The President or the judge delegated to hear the appearance shall fix the appearance hearing by decree within sixty days of the filing of the application’; (c) the following shall be inserted after paragraph 11: ’11-bis The judge shall exercise all the powers intended for the most expeditious and fair conduct of the proceedings, granting, if necessary, to the parties time limits for the filing of defence notes.’; (d) in paragraph 13, after the first sentence, the following shall be added at the end: ‘In the event of a transaction authorised pursuant to Article 132, the Board shall arrange for the statement of liabilities to be amended accordingly.’; (e) after paragraph 16, the following shall be inserted: ’16-bis. At the end of the appeal, the trustee shall provide for the consequent modification of the state of liabilities within thirty days following the communication of the measure. Failure to comply with the provision referred to in the first sentence may constitute grounds for revocation of the appointment.'”.

[12] Art. 34, Legislative Decree no. no. 136, introduced a slight amendment to art. 203, CCII, providing (subparagraph 3), that “in Article 203, paragraph 2 of Legislative Decree No. 14 of 12 January 2019, the words ‘in the court registry’ are deleted”.

[13] Cass., sec. un., 5 May 2017, no. 10944, had established that “on the subject of bankruptcy, even in proceedings opened after the entry into force of Legislative Decree no. 5 of 2006, the suspension of deadlines during the holiday period, although generally applicable, pursuant to the combined provisions of art. 92 of Royal Decree no. 12 of 1941 and art. 1 and 3 of Law no. 742 of 1969, to judgments for the assessment of insolvency credits, does not operate in those in which the admission to the state of liabilities of employment credits is disputed, which, although to be dealt with by the bankruptcy procedure, are subject to the regime provided for by art. 3 cited, due to the subject matter that forms the object”.

[14] The provision in force prior to the entry into force of Legislative Decree no. 136 of 2024 established that “communications to persons for whom the law provides for the obligation to have a digital domicile and who have not established or communicated it shall be made exclusively by filing it with the registry. The same procedure shall be used in the event of non-delivery of the electronic message for reasons attributable to the recipient. The provisions referred to in the second sentence shall also apply to persons who have been assigned a digital domicile pursuant to the second paragraph”; in turn, establishes that “the bodies referred to in the first paragraph shall activate, giving timely notice to the interested parties, a digital domicile, to be used exclusively for communications relating to the procedure: a) to creditors and holders of rights on assets who are not obliged to have them; (b) to subjects who are based or resident abroad; (c) to the debtor and the legal representative of the company or entity subject to one of the procedures governed by this Code”.

[15] It has been observed, in fact, that “Compared to the previous wording of the rule, the regulation of the submission of such applications, in implementation of the delegation criterion aimed at reducing the possibility of late submission (art. 7, 8° co., lett. a, l. 155/2017), has been the subject of various rulings aimed at limiting their proposability” (so MANENTE, Commentary on art. 208, in Commentario Breve alle leggi su Crisi d’Impresa e Insolvenza edited by MAFFEI ALBERTI, VII ed., Padua, 2023, 1601). In general, for the regulation of the assessment of liabilities in the CCII, see PACCHI, Liquidazione giudiziale, in AMBROSINI (edited by), Crisis and insolvency in the new Code. Thematic commentary on legislative decrees nos. 14/2019 and 83/2022, Bologna, 2022, 1013 et seq.; GIORGI, Commentary on art. 208 CCI, in VALENSISE – DI CECCO – SPAGNUOLO (edited by), Il Codice della Crisi. Commentario, Turin, 2024, 1151 et seq.

[16] For the commentary on art. 101, l.f., (now transfused into art. 208 CCII), see FAUCEGLIA, L’accertamento del passivo, in CAGNASSO – PANZANI (directed by), Crisi d’impresa e procedure concorsuali, t. II, Milanofiori – Assago, 2016, 1676 et seq., FERRARO, Commentary on art. 101, l.fall., in AA.VV., La legge fallimentare dopo la riforma edited by NIGRO-SANDULLI-SANTORO, Turin, 2010, 1280 et seq.; FERRARO, Commentary on Article 101, Bankruptcy Law., in AA.VV., La riforma della legge fallimentare edited by NIGRO-SANDULLI, Turin, 2006, 574 et seq.; NARDECCHIA, Commentary on Article 101, Bankruptcy Law., in AA.VV., La legge fallimentare – Commentario teorico pratico edited by FERRO, III ed., Padua, 2014, 1303 et seq.; MANENTE, Commentary on art. 101, in Commentario Breve alla Legge Fallimentare edited by MAFFEI ALBERTI, VI ed., Padua, 2013, 682 et seq. SANTONI G., La formazione dello stato passiva, in BONFATTI – FALCONE (ed.), Le nuove procedure concorsuali per la prevenzione e la organizzazione della crisi di impresa, Milan, 2006, 163 et seq., and, more recently, BONACCORSI DI PATTI, Commentary all’art. 101, in CAIAFA (ed.), Commentario alla legge fallimentare, Rome, 2017, 457-461

[17] MANENTE, Commentary on art. 208, in Commentario Breve alle leggi su Crisi d’Impresa e Insolvenza edited by MAFFEI ALBERTI, cit., 1601.

[18] The clear letter of the provision militates in this sense. On this point, cf. however, again MANENTE, Commentary on art. 208, in Commentario Breve alle leggi su Crisi d’Impresa e Insolvenza edited by MAFFEI ALBERTI, cit., 1604, who notes that the extension must be specifically justified and, as examples of particular complexity (to be referred to the verification of liabilities), recalls the large number of creditors and the residence outside the national borders of most of them. Cass., 13 October 2022, no. 30065, in motivation, notes that the rule expresses an ordering and accelerating need and, and establishes an “unequivocal provision of a specific motivational burden on the court – to be exercised immediately in the bankruptcy declaratory judgment – regarding the “particular complexity of the procedure” which, alone, can justify an extension of the time for the formation of the bankruptcy liabilities”.

[19] An in-depth analysis of the issues relating to the assessment of liabilities in judicial liquidation can be found in PETTERUTI (ed.), La verifica del passivo ed i piani di riparto, Turin, 2022. In particular, MASTURZI, Principi generali, in PETTERUTI (ed.), La verifica del passivo ed i piani di riparto, cit., 12, in addition to underlining that “arts. 200 et seq., CCI, substantially follow the procedure for ascertaining liabilities regulated in art. 92 et seq. of the Bankruptcy Law”, notes that “the amendments introduced appear, in fact, to be of little importance, exhausting themselves – by way of example – in the provision that applications for participation in the allocation of the sums obtained from the liquidation of assets included in the procedure mortgaged as security for the debts of others must be submitted according to the same procedure provided for the assessment of liabilities (art. 201,  first paragraph, CCI); in the specification of the indications of the application for the filing of liabilities (Article 201, third paragraph, CCI); in the subjection of the verification procedure, as well as of the appeal procedures of the decree declaring the state of liabilities enforceable (Article 207, paragraph sixteen, CCI), to the holiday suspension of the terms (Article 201, paragraph ten, CCI) that do not run during the month of August; in the determination that the application for admission to the liabilities “produces the effects of the judicial application (not only, as it was already in the previous system) for the entire course of the judicial liquidation (but also) until the exhaustion of the judgments and transactions that continue after the closure decree pursuant to art. 235′ (art. 202, CCI); In the clarification that “the decree that makes the state of liabilities enforceable and the decisions taken by the court at the end of the judgments referred to in art. 206” (i.e. opposition, challenge of admitted claims and revocation) “limited to ascertained claims and the right to participate in the allocation when the debtor has granted a mortgage as security for the debts of others”, produce effects only for the purposes of the competition (art. 204, fifth paragraph, CCI); in the provision that the communication to creditors of the decree of enforceability of the state of liabilities must also contain “a summary of the concrete prospects of satisfaction of the creditors in bankruptcy” (Article 205, second paragraph, CCI); in the possibility, granted to the party against whom the appeal is brought, to propose, within the limits of the conclusions resigned in the procedure for the assessment of liabilities, a cross-appeal with which it in turn requests to reform the decree of enforceability of the state of liabilities (Article 206, fourth paragraph, CCI); the reduction of the deadline for late applications (from one year to six months from the filing of the decree of enforceability of the state of liabilities, extendable up to twelve months in the event of particular complexity of the procedure), justified, in the Explanatory Report, by the need for speed (Article 208, first paragraph, CCI); in the provision for the communication to all creditors already admitted to the liabilities of the date of the hearing for the verification of late applications, in order to allow them the collective control that occurs for timely applications (Article 208, second paragraph, CCII); in the provision of the possibility that the application for “super-late” filing may be declared inadmissible by decree of the delegated judge if “the applicant has not indicated the circumstances on which the delay depended or has not offered documentary proof or has not indicated the means of proof he intends to use to demonstrate its non-imputability” (art. 208,  third paragraph, CCII )”. See also NIEDDU DEL RIO, Accertamento del passivo e dei diritti dei terzi sui beni compresi nella liquidazione giudiziale, in CAIAFA (edited by), Codice della crisi dell’insolvenza della impresa, t. IV, Rome, 2020, 219 et seq. as well as MANENTE, Commentary on art. 201, in Commentario Breve alle leggi su Crisi d’Impresa e Insolvenza edited by MAFFEI ALBERTI, VII ed., Padua, 2023, 1492 et seq.

[20] The original letter a) had the following content: “the indication of the procedure in which you intend to participate and the personal details of the creditor and his tax code number, as well as

the applicant’s bank details or the declaration of intention to be paid by means other than crediting a bank account, established by the delegated judge pursuant to Article 230, paragraph 1″.

[21] The phrase “pledge” was inserted by Legislative Decree no. no. 136 of 2024.

[22] And, in fact, it is observed that “both types of applications now do not differ in any way from the regime of timely applications (see 2nd paragraph), being qualified as late (of one or the other category) or timely only on the basis of the date (before or after the expiry of the term thirty days prior to the verification hearing) of submission” In this sense MANENTE,  Commentary on art. 208, in Commentario Breve alle leggi su Crisi d’Impresa e Insolvenza edited by MAFFEI ALBERTI, cit., 1602, as well as, in the same sense, GUGLIELMUCCI, Formulario annotato delle procedure concorsuali, Padua, 2012, 229.

[23] On which see, again, Sangiovanni, Ammissione al passivo fallimentare di crediti bancari da conto corrente e data certa, in Nuovo Diritto delle Società, 2020, 669 et seq.

[24] The rule would not seem, however, to be immediately applicable in the context of controlled liquidation given that the rule referred to in art. 270, CCII contains a specific provision that merely provides for the transmission of the application to the liquidator by certified e-mail within the deadline set by the judgment opening the procedure.

[25] MANENTE, Commentary on art. 201, in Commentario Breve alle leggi su Crisi d’Impresa e Insolvenza edited by MAFFEI ALBERTI, cit., 1502, points out that the sanction must be coordinated with “the elaboration formed around the issue of the nullity of the writ of summons pursuant to art. 164 c.p.c.” (recalling the Supreme Court, 5 April 2005, no. 7074, whose maxim reads “The nullity of the summons for omitted or uncertain determination of the ‘petitum’ (art.164, fourth paragraph, of the Code of Procedure). civ.), understood, from a formal point of view, as the judicial measure requested by the plaintiff, and, from a substantive point of view, as the good of life for which recognition is sought, does not exist if, in the application initiating the proceedings, the claim has not been precisely quantified, monetarily, if the plaintiff has indicated the titles on which it is based, thus allowing the defendant to formulate his defence immediately and exhaustively,  the assessment on this point is reserved for the assessment of the judge on the merits, which is unquestionable in the context of legitimacy if supported by complete, coherent and logically congruent reasoning”). For the sake of completeness, it should be noted that there do not seem, however, to be any reason not to consider this provision applicable also in the assessment of liabilities in the context of controlled liquidation.

[26] The rule is compatible with the assessment of liabilities in controlled liquidation, as, moreover, it is an expression of a principle that can be considered general in the context of the Crisis Code. Moreover, it is expressly declined in art. 273, paragraph 1, CCII.

[27] The rule must also be considered applicable to the application for admission to the liabilities made in the context of the controlled liquidation.

[28] MONTANARI, Domande tardive di crediti, in JORIO (edited by), Il nuovo diritto fallimentare. Novità ed esperienze applicative a cinque anni dalla riforma. Commentario, Bologna, 2010, 1556.

[29] The provision seems to be applicable also in the context of controlled liquidation: this appears justified by the need to avoid the liquidation of third-party assets (a need that clearly exists also in controlled liquidation). At the same time, even considering the different structure of the powers of liquidation of assets, the only possible interpretative solution appears to be to consider the provisions relating to judicial liquidation applicable – also for this aspect.

[30] MANENTE, Commentary on art. 204, in Commentario Breve alle leggi su Crisi d’Impresa e Insolvenza edited by MAFFEI ALBERTI, cit., 1535 et seq.

[31] In this sense , again MANENTE, Commentary on art. 204, in Commentario Breve alle leggi su Crisi d’Impresa e Insolvenza edited by MAFFEI ALBERTI, cit., 1551.

[32] MANENTE, Commentary on art. 208, in Commentario Breve alle leggi su Crisi d’Impresa e Insolvenza edited by MAFFEI ALBERTI, cit., 1609.

[33] GUERRINI, Commentary on art. 226, in Commentario Breve alle leggi su Crisi d’Impresa e Insolvenza edited by MAFFEI ALBERTI, cit., 1779

[34] Again GUERRINI, Commentary on art. 225, in Commentario Breve alle leggi su Crisi d’Impresa e Insolvenza edited by MAFFEI ALBERTI, cit., 1776 et seq.

[35] FERRARO, Commentary on art. 101, in La legge fallimentare dopo la riforma cit., 1299.

[36] Also FERRARO, Commentary on art. 101, in La legge fallimentare dopo la riforma cit., 1285.

[37] Cass., 11 May 2016, no. 9618, where, in the motivation, it is stated “the ordinary and late admission to the bankruptcy liabilities are as many phases of the same judicial assessment, so that, with respect to the decision concerning a late filing of a claim, the previous decisions, concerning the ordinary filing, have the value of internal res judicata; it follows that a claim, in order to be able to be filed late, must be different, on the basis of the criteria of the “petitum” and the “causa petendi”, from that asserted in the ordinary filing, nor, to characterize a claim as new, are the quantitative data sufficient or even a different connotation of the same claim”.

[38] In this sense, Cass., 6 October 2011, no. 20534, according to which – in principle – it is established that “In bankruptcy, late filing can only be entered for claims other than those asserted in a timely manner, per petitum and causa petendi, from those asserted in a timely manner; it follows that the late application for receivables deriving from an employment relationship for various reasons is admissible, since the constituent elements of each receivable are different.”.

[39] In this sense, Cass., 21 May 1988, no. 3535, whose maxim establishes the following principle “The definitiveness of the state of liabilities of the bankruptcy has binding effects also with regard to the quantum of the credits admitted and, therefore, does not allow the subsequent filing of applications for late filing to claim greater amounts that are assumed to derive from the same title already asserted with the application for admission to the liabilities (in this case,  additional entitlements for severance pay)”.

[40] In the present case, for salaries relating to monthly payments other than those requested with the previous application, since the facts from which the right to remuneration arises in a given period are different from those that for the same purpose concern a different period; Court of Cassation, 12 December 2011, no. 26539.

[41]  Cass., 12 December 1996, no. 11286, according to which “The acceptance (as well as the rejection), by the delegated judge, of a late application for admission of a credit exhausts, where there are no oppositions, the decision-making power of the same judge and, due to the application of the general rule of ne bis in idem, consequently does not allow the subsequent re-examination of the same credit with reference to a cause of pre-emption not previously envisaged”.

[42] Cass., 19 February 2003, 2476, according to which “The late admission to the bankruptcy liabilities represents, like the ordinary one, a phase of the same judicial proceedings, so that the determinations taken in the latter place have the value of internal res judicata with respect to the late application, which, therefore, must have as its object a completely different claim – both for petitum and for cause of action – from the one already admitted,  covering both the deductible and the deductible endo-bankruptcy res judicata; (in the present case, the Supreme Court excluded the admissibility of the late application relating to interest on the capital requested in the ordinary session, since the two claims had the same cause of action)”; contra DEL VECCHIO, Le spese e gli interessi nel fallimento, Milan, 1988, 232.

[43] COMERCI – CHINAGLIA, Commentary on art. 101, cit., 688.

[44] MANENTE, Commentary on art. 208, in Commentario Breve alle leggi su Crisi d’Impresa e Insolvenza edited by MAFFEI ALBERTI, cit., 1602. In the same sense, MONTANARI, Late applications for credits, cit., 1551 seq.; GUGLIELMUCCI, Formulario annotato delle procedure concorsuali, cit., 227.

[45] In controlled liquidation, given the silence of the legislator on this point, one could, however, doubt the existence, on the part of the liquidator, of the power to formulate the objections that can be raised by the liquidator, established by art. 203, first paragraph, second part, CCII. On the other hand, the debtor’s dialogue with the liquidator regarding any disputes relating to the admission of credits is not regulated either. The preferable solution, if one wanted to enhance – once again – the systematic fact of the inclusion of the discipline in the title relating to judicial liquidation, should be of a positive sign.

[46] With regard to the faculties that can be exercised by the debtor, in the context of the bankruptcy law, see the contributions already mentioned in general regarding the assessment of liabilities in the force of the bankruptcy law, namely FAUCEGLIA, L’accertamento del passivo, in CAGNASSO O.– PANZANI (directed by), Crisi d’impresa e procedure concorsuali, t. II, Milanofiori – Assago, 2016, 1593 et seq. In general, see, also NARDONE, Commentary on art. 95, l.fall., in AA.VV., La legge fallimentare dopo la riforma edited by NIGRO-SANDULLI-SANTORO, Turin, 2010, 1218 et seq., NARDONE, Commentary on art. 95, in AA.VV., La riforma della l.f. edited by NIGRO-SANDULLI, Turin, 2006, 540 et seq., APRILE, Commentary on art. 95, l.fall., in AA.VV., La legge fallimentare – Commentario teorico pratico edited by FERRO, III ed., Padua, 2014, 1226 et seq. (in particular, see page 1240, containing a specific paragraph entitled “The role of the bankrupt in the verification of liabilities”, where the conclusion that the “bankrupt cannot be qualified as a party” prevails); MANENTE, Commentary on art. 95, in Commentario Breve alla Legge Fallimentare. edited by MAFFEI ALBERTI, VI ed., Padua, 2013, 615 et seq.; and, more recently, CONCA, Commentary on art. 95, in CAIAFA (ed.), Commentario alla legge fallimentare, Rome, 2017, 431-440.

[47] The Explanatory Report to Legislative Decree no. no. 136 of 2024, 37, notes that “to guarantee the debtor’s right of defence, a second sentence is introduced, in which it is provided that the decisions adopted in the formation of the state of liabilities in relation to creditors’ claims have effect only for the purposes of the competition, thus implying that the measures taken on claims or restitution actions may acquire the effect of res judicata even outside the judicial liquidation procedure. With respect to these claims, therefore, the debtor can fully carry out his defenses by intervening during the verification of credits, but he can also appeal the decision taken by the delegated judge”.

[48] On appeals, see also TRINCHI, L’accertamento del passivo, in PETTERUTI (ed.), La verifica del passivo ed i piani di riparto, cit., 55 et seq. The distinction between opposition and appeal is more nominalistic than anything else and consists in the fact that – pursuant to the second paragraph – “with the opposition, the creditor or the holder of rights over movable or immovable property contests that his or her application has been accepted in part or has been rejected. The opposition is proposed against the curator” … where, pursuant to the third paragraph, “with the appeal the trustee, the creditor or the holder of rights over movable or immovable property contest that the claim of a creditor or other competitor has been accepted. The appeal is directed against the competing creditor, whose application has been granted. The trustee also participates in the proceedings”. See also BURRONI – PORCARI, Judicial liquidation and subsequent composition, in SANZO (ed.), The Crisis Code after Legislative Decree no. 83 of 17 June 2022, cit., 457 and NIEDDU DEL RIO, Assessment of liabilities and third parties’ rights on assets included in judicial liquidation, in CAIAFA, Codice della crisi dell’insolvenza della impresa, cit., 239-245. For controlled liquidation, the differences, this time, with respect to the structure envisaged for judicial liquidation appear to be extremely significant. The phase of full knowledge takes place through any complaint, provided for in paragraph six, according to which “a complaint may be lodged against the decree before the panel, of which the delegated judge cannot be a member. The procedure is carried out without formalities, ensuring compliance with the adversarial procedure”. See, then, CARRATTA, Impugnazione e stabilità dell’accertamento del passivo nella liquidazione giudiziale, in Dir. fallim., 2021, 495 ss.

[49] For all, see MANENTE, Commentary on Art. 206, in Brief Commentary on the Laws on Business Crisis and Insolvency edited by MAFFEI ALBERTI, cit., 1557 et seq. and, as regards the procedure, also on MANENTE, Comment on Art. 207, in Commentario Breve alle leggi su Crisi d’Impresa e Insolvenza edited by MAFFEI ALBERTI, cit., 1579 et seq.

[50] On which MANENTE, Commentary on art. 207, in Commentario Breve alle leggi su Crisi d’Impresa e Insolvenza edited by MAFFEI ALBERTI, cit., 1579 et seq.

[51] In the past, the applications for admission referred to in art. 101, paragraph 4, had been defined as “ultralate”, instead of the phrase “superlate”, perhaps used more frequently cf. Lamanna, Il nuovo procedimento di accertamento del passivo, Milan, 2006, 594; Miccio, Le dichiarazioni tardive dei crediti, in Aa.Vv., Trattato delle procedure concorsuali directed by GHIA, PICCININNI E SEVERINI, Turin, 2010, vol. III, 662; Ferraro, Comment on art. 101, in La legge fallimentare dopo la riforma edited by NIGRO-SANDULLI-SANTORO, Turin, 2010, 1296.

[52] It should be noted that “the rewriting of the discipline of ultra-late applications, as well as an expression of the restrictive approach of the enabling law with regard to this type of insinuation, is also the result of the general principle of delegation referred to in art. 2, 1st co., letter m) l. cit., relating to the overcoming of interpretative contrasts” (thus, MANENTE, Commentary on art. 208, in Commentario Breve alle leggi su Crisi d’Impresa e Insolvenza edited by MAFFEI ALBERTI, cit., 1601).

[53] For the analysis of the issues related to ultra-late applications under the force of the bankruptcy law, please refer to the commentary on art. 101, Bankruptcy Law; see, in particular, TEDESCHI, L’accertamento del passivo, in Aa.Vv., Le riforma della legge fallimentare edited by DIDONE, Turin, 2009, 1068 et seq.; CAIAFA, La legge fallimentare riformata e corretta. Dalla legge 12 maggio 2005, n. 80 al d.lgs. 12 settembre 2007, n. 169, Padua, 2008, 543 et seq.; MONTELEONE, Le domande tardive ed ultratardive, in Aa.Vv., L’accertamento del passivo edited by FERRO-BASTIA-NONNO, Milan, 2011, 407 et seq.; Ferraro, Commentary on art. 101, in Aa.Vv., La legge fallimentare dopo la riforma edited by Nigro-Sandulli-Santoro, Turin, 2010, 1294 et seq.; Nardecchia, Commentary on art. 101, in Aa.Vv., La legge fallimentare – Commentario teorico pratico edited by Ferro, Padua, 2014, 1303 et seq.; Miccio, Le dichiarazione tardive dei crediti, in Aa.Vv., Trattato delle procedure concorsuali directed by GHIA, PICCININNI e SEVERINI, Turin, 2010, vol. III, 653 et seq.; Vitiello, Lo stato passivo, in Aa.Vv., Le nuove procedure concorsuali edited by AMBROSINI, Bologna, 2008, 165 et seq.; Canale, La formazione dello stato passivo e il sistema delle impugnazioni, in Aa.Vv., La riforma della legge fallimentare edited by AMBROSINI, Bologna, 2006, 208 et seq.; Manente, Comment on art. 101, in  Commentario Breve alla Legge Fallimentare, edited by MAFFEI ALBERTI, Padua, 2013, 682 – 691; Dimundo – Quatraro, L’accertamento del passivo, in Aa.Vv., Fallimento e altre procedure concorsuali directed by Fauceglia-Panzani, Turin, 2009, 1001 et seq.; Tiscini, Commentary on art. 101, in Terranova et al. (eds.), La nuova legge fallimentare annotata, Naples, 2006, 188.

[54] Again, practice indicates that very frequently the trustee has incomplete or absent accounting records of the bankrupt entrepreneur, and, therefore, is not in possession of the necessary data to reach all the creditors interested in the competition with the notice referred to in art. 200, CCII (originally art. 92 l.f.). 

[55] The reference is to Cass., 17 June 1998, no. 6032, in Giust. civ., 1998, I, 2468, as well as in Fallimento, 1999, 284, with note by Stesuri, Notificazione della cartella esattoriale quale presupposto per l’ammissione al passivo del credito fiscale (Nota a Cass., sez. I, 17 giugno 1998, n. 6032, Monte Paschi Siena c. Fall. Centonze), according to which “in the event of bankruptcy of the taxpayer, for the purposes of admission to the liabilities of the taxes entered in the register, the tax notice (which constitutes the “extract” of the register) must be notified in advance to the bankruptcy trustee in order to allow him to propose any appeal against the register for the consequent admission of the tax with the “reserve” provided for by art. 45 of Presidential Decree no. 602 of 29 September 1973″. To the same effect, see also Cass., 16 June 2010, no. 14579, in Giust. civ., 2010, I, 2157, Cass., 29 May 2006, no. 12777, in Rep. Foro it, 2006, Riscossione delle imposte, no. 212, and Cass., 6 May 1994, no. 4426, in Corriere trib., 1994, 1980, and in Riv. giur. trib., 1994, 982, with note by Anni.

[56] Cass., 17 March 2014 no. 6126; Cass., 9 December 2014, no. 25863. Cass., 26 February 2008, no. 5063, in Rep. Foro it, 2008, Bankruptcy, no. 550. Among the most relevant rulings on the subject of filing of liabilities of taxes, see Cass., sec. un., 15 March 2012, no. 4126, in Dir. fallim., 2014, II, 266 et seq., with note by Cuomo, as well as in Fisco 1, 2012, 2139, in Riv. giur. trib., 2012, 557, with note by Montanari, in Fallimento, 2013, 45, with note by Del Federico and in Dir. e pratica trib., 2013, II, 152, with note by Rasi, according to which “the application for admission to the liabilities of a bankruptcy concerning a tax credit, submitted by the tax authorities, does not necessarily presuppose, for the purposes of its success, the previous registration of the claim claimed, the notification of the payment notice and the attachment to the application of the documentation proving the completion of the said duties,  conversely, it may also be based on a title of a different tenor (in the present case, the claim must be based on tax securities, sheets reserved in the register, tax judgments rejecting the taxpayer’s appeals)”.

[57] Trib. Monza 19 November 2013, in http://www.ilcaso.it.

[58] The issue does not concern pre-deductible receivables arising as a result of measures for the liquidation of fees of the persons appointed pursuant to art. 25, l.f., since, in this case, if a dispute arises, the discipline of the intra-insolvency claim pursuant to art. 26, l.f. With specific reference to the ultra-late application for the disputed pre-deduction credit, cf. Pacchi, Commentary on art. 111bis, in Aa.Vv., La riforma della legge fallimentare edited by NIGRO-SANDULLI, Turin, 2006, 684; in the same sense Coppola, Commentary on art. 111bis, in Commentario Breve alla Legge Fallimentare edited by MAFFEI ALBERTI, Padua, 2013, 785, Id., Commentary to 111bis, in Aa.Vv., La riforma della legge fallimentare edited by NIGRO-SANDULLI, Turin, 2006, 1561 et seq., which, moreover, also gives an account of the previous minority orientations formed during the validity of the Bankruptcy Law, before the organic reform of 2006, regarding the possibility of ascertaining the pre-deductible credit by ordinary judgment. It notes that the occurrence of the credit after the expiry of the term referred to in art. 101, paragraph 1, of the Italian Bankruptcy Law, constitutes a circumstance that demonstrates the absence of fault pursuant to paragraph 4, Zoppellari, Il nuovo fallimento, commentario al r.d. 16 marzo 1942 n. 267 coordinato con le modifiche apportate dalla l. 14 maggio 2005 n. 80 e dal d.leg. 9 gennaio 2006 n. 5, edited by Santangeli, Milan, 2006, 550.

[59] COPPOLA, Commentary on art. 222, in Commentario Breve alle leggi su Crisi d’Impresa e Insolvenza edited by MAFFEI ALBERTI, cit., 1758.

[60] FERRARO, Comment on art. 101, in Aa.Vv., La legge fallimentare dopo la riforma edited by NIGRO-SANDULLI-SANTORO, cit., 1298.

[61] In this sense, Staunovo – Polacco, Il ritardo non imputabile nell’insinuazione al passivo «supertardiva», in Fallimento, 2010, 75; Montanari, Commentary on art. 101, in Aa.Vv., Il nuovo diritto fallimentare directed by JORIO e coordinated by FABIANI, Bologna, 2006, 1550.

[62] For the case law formed under the force of the Bankruptcy Law Trib. Udine, 29 April 2011, in www.unijuris.it; Trib. Modena, 5 December 2008, in Fallimento, 2009, 622; Trib. Macerata, 11 November 2008, ibid., 2009, 453, with note by Nardecchia; Trib. Salerno, 20 May 2013, in www.ilcaso.it. In doctrine, see Ferraro, Commentary on art. 101, in AA.VV., La riforma della legge fallimentare, edited by NIGRO-SANDULLI, cit., 129 and, again, with regard to the rule of the CCII, MANENTE, Commentary on art. 208, in Commentario Breve alle leggi su Crisi d’Impresa e Insolvenza edited by MAFFEI ALBERTI, cit., 1605.

[63] Cf. Ferraro, Commentary on art. 101, in AA.VV., La riforma della legge fallimentare, cit., 1295 – 1296.

[64] Scholars have focused their attention above all on this assumption, to be understood as that delay not determined by “negligence, negligence, negligence and, obviously, bad faith”; see, in particular, Bozza, Ritardo per causa non imputabile al creditore nell’insinuazione tardiva del credito di restituzione, in Fallimento, 2005, 426; see also Montanari, Commentary on Article 101, in Aa.Vv., Il nuovo diritto fallimentare edited by JORIO, Bologna, 2006, 1550; Ferraro, Commentary on art.101, in AA.VV., La legge fallimentare dopo la riforma edited by NIGRO-SANDULLI-SANTORO, cit., 1296.

[65] On this point, see Cass., 10 July 2019, no. 18544, which had stated that “applications for admission to the liabilities of receivables supervening the declaration of bankruptcy must be submitted within one year from the time the conditions for participating in the bankruptcy competition are met, since the supervening creditor cannot be granted a shorter term than that available to pre-existing creditors,  In the light of the principle of equality and the right to take legal action, referred to in art. 3 and 24 of the Constitution..”;  Cass., 18 January 2019, no. 1391 (referring to extraordinary administration), whose maxim states, in a lapidary way, that “the filing of receivables arising during the extraordinary administration procedure is not subject to the limitation period provided for by art. 101, 1st and 2nd paragraphs, Bankruptcy Law”; Cass., 31 July 2018, no. 20310, according to which “the application by which the creditor intends to obtain, in relation to his own property occupied by the bankruptcy receivership, the recognition in pre-deduction of the credit of an indemnity is not subject to the limitation period provided for late filing, since the latter can be submitted as soon as the fact on which its final quantification depends occurs”; all these decisions are referred to by MANENTE, Commentary on art. 208, in Commentario Breve alle leggi su Crisi d’Impresa e Insolvenza edited  by MAFFEI ALBERTI, cit., 1604. The point will have to be subjected to new scrutiny, in the light of the provision of art, 208, CCII.

[66] In this sense, the Court of Cassation civ, Sec. I, 19 March 2012, no. 4310, cit., which recalls the jurisprudential orientation of legitimacy, more dated, relating to the previous formulation of art. 101 of the Italian Bankruptcy Law, concerning the regime of court fees in late applications and also noting the correctness of the interpretation – as a presumption of ignorance of the pendency of the bankruptcy – regarding the non-receipt of the notice pursuant to Article 92 of the Italian Bankruptcy Law, “since the Trustee may in any case prove that the creditor has been informed of the bankruptcy, regardless of the receipt of the notice referred to in the Italian Bankruptcy Law, art. 92”. For case law on the merits, see Trib. Modena, 20 March 2009, in Fallimento, 2010, 67, and Trib. Pescara, 10 February 2009, ibid., with a note by Staunovo – Polacco, Il ritardo non imputabile nell’insinuazione al passivo «supertardiva».

[67] Cf. Trib. Pescara, 10 February 2009, cit. The judge on the merits had considered inadmissible the application submitted by a bank of significant size, which, however, had not attached – nor demonstrated – how this circumstance had precluded the submission of the application in a timely manner.

[68] The case examined by the Supreme Court, 31 May 2011, no. 12019, cit., was about the tax credit activated by the tax collection agent, where the delay had been justified by the creditor with the need – considered however non-existent – to notify the bankruptcy trustee in advance of the payment notice.

[69] It can be agreed with those who identify this moment with the definitiveness of the decree that makes the allocation plan enforceable. Thus Manente, Commentary on art. 101, in Commentario Breve alla Legge Fallimentare edited by MAFFEI ALBERTI, cit., 687.

[70] It is worth mentioning the (different) case examined by the case law (Trib. Palermo, 16 January 2001, in Dir. fallim., 2004, II, 106, with a note by Farina) relating to the certain inadequacy of the assets with respect to the application for admission of the late creditor. It has been noted that, in assessing the interest in admission to the liabilities, in late applications the advantage that legitimizes the interest in bringing proceedings must be concrete and current and may also be potential, while the usefulness of the requested measure must be assessed from a legal point of view, regardless of the economic result; It follows that the applicant has an interest in obtaining the recognition of his credit even if, hypothetically, he does not obtain any payment at the time of allocation (in this case, it was a bank in LCA that had sold its assets and liabilities).

[71] Thus Trib. Pescara, 10 February 2009, cit. The term of 90 days was derived from the provision of art. 16, L.F., which sets the peremptory deadline of 120 days from the date of declaration of bankruptcy for the hearing to ascertain the liabilities, from which the 30 days set by law for the submission of the application for admission must be subtracted.

[72] Trib. Udine, 29 April 2011, in www.unijuris.it, cit.

[73] Cf. Trib. Padua, 1 February 2012, in Dir. fallim., 2013, II, 114, which states that the “supervening” creditor must formulate his application for admission to the liabilities within the term referred to in art. 101, paragraph 1, of the Bankruptcy Law, and, if he is unable to comply with this deadline without his fault, he may submit an ultralate application, demonstrating the absence of fault, in any case within a reasonable and reasonable time; he may not,  instead, count on a full term of twelve months from the occurrence of his credit. In order to reach this conclusion, the same jurisprudence just cited has excluded the possibility of finding interpretative footholds to identify a fixed term: more precisely, in the identification of the “reasonable time”, to be understood as a corollary of the qualification of the absence of fault in the delay, it was considered not possible to draw exegetical arguments from the provisions relating to the assignment of the credit and the subrogation referred to in Article 115,  paragraph 2, of the Italian Bankruptcy Law, which allows – as is well known – the participation in the competition of the assignee creditor (or who has subrogated himself) without time limitations, except that of the final distribution of the assets (for the interpretation of the last mentioned provision, cf. Casilli, Comment on art. 115, in La legge fallimentare dopo la riforma edited by NIGRO-SANDULLI-SANTORO, Turin, 2010, 1609 et seq.; Tiscini, Commentary on art.  115, in Terranova et al. (eds.), La nuova legge fallimentare annotata, Naples, 2006, 248; Guerrini, Comment on art. 115, in Commentario Breve alla Legge Fallimentare edited by MAFFEI ALBERTI, VI ed., Padua, 2013, 801 – 803). It should be remembered that even in the CCII the assignee of the credit whose assignment has taken place during the procedure, after the submission by the assignor, is not required to submit an application for admission to the liabilities, pursuant to art. 230 CCII. It was also observed that it was not possible to find a term of 12 months (to be applied by analogy), for the admission to the liabilities of the leasing company’s right of credit pursuant to Article 72 quarter, paragraph 3, of the Italian Bankruptcy Law, in the event that the trustee has decided to dissolve the pending contract during the proceedings (credit that arises only at the time of the reallocation of the asset. For the comment in general, on art. 72 quarter, l.f., see Capaldo, Comment on art. 72 quarter, in Aa.Vv., La legge fallimentare dopo la riforma edited by NIGRO-SANDULLI-SANTORO, Turin, 2010, 1038 et seq.; Mancuso, Comment on art. 72 quarter, in Terranova e altri (ed.), La nuova l.f. annotata, Naples, 2006, 150 et seq.; Cagnasso, I contratti pendenti, in Aa.Vv., Le nuove procedure concorsuali edited by AMBROSINI, Bologna, 2008, 128 – 130; in the doctrine it was specified that the credit of the grantor company cannot be “filed in advance, but only following the allocation of the asset and therefore tendentially with a late application”; thus Fabiani, in a note to the Supreme Court, 1 March 2010,  n.  4862, in Foro it., 2010, I, 1422; in the same sense, Morandi, Commentary on Article 72 quarter, in Commentario Breve alla Legge Fallimentare edited by MAFFEI ALBERTI, Padua, 2009, 397; Quagliotti, La disciplina unitaria del contratto di leasing nel fallimento, in Fallimento, 2006, 1246; on the prejudicial nature of the allocation, with respect to the subsequent admission to the liabilities, April, Comment on art. 72 quarter, in Aa.Vv., La legge fallimentare – Commentario teorico pratico (aggiornamento al d.leg. 169/07) edited by Ferro, Padua, 2014, 1002 et seq.; considers possible a conditional admission, Macrì, I rapporti giuridici pendenti, in Aa.Vv., Fallimento e concordati edited by CELENTANO – FORGILLO, Turin, 2008, 527.

[74] MANENTE, Commentary on art. 208, in Commentario Breve alle leggi su Crisi d’Impresa e Insolvenza edited by MAFFEI ALBERTI, cit., 1606, states that this is a solution that “codifies” a solution followed by certain forums.

[75] For the comment on which, please refer to TEDOLDI, Commentary on Art. 124, in Commentario Breve alle leggi su Crisi d’Impresa e Insolvenza edited by MAFFEI ALBERTI, cit., 930, which – with regard to the complaint governed by art. 124 CCII – notes that it is a means of appeal in the technical sense.

[76] It considers it necessary to open an incidental procedure aimed at ascertaining the admissibility of Trib. Terni, 12 October 2010. For the doctrine on the subject, see the references in Aa.Vv., L’accertamento del passivo edited by FERRO-BASTIA-NONNO, Milan, 2011, 399 and in Manente, Commentary on art. 101, in Commentario Breve alla Legge Fallimentare edited by MAFFEI ALBERTI, cit., 687.

[77] For the doctrine that is in the majority, see, among others, Montanari, Commentary on art. 101, in Aa.Vv., Il nuovo diritto fallimentare directed by JORIO and coordinated by FABIANI, cit., 1550.

[78] The various sub-solutions can be found in Aa.Vv., L’accertamento del passivo edited by FERRO-BASTIA-NONNO, cit., 399 and in Manente, Commentary on art. 101, in Commentario Breve alla Legge Fallimentare edited by MAFFEI ALBERTI, cit., 687

[79] The solution had been proposed under the force of the Bankruptcy Law by BRUSCHETTA, in Aa.Vv., La riforma organica delle procedure concorsuali, edited by BONFATTI-PANZANI, Milan, 2008, 371. In case law, see Trib. Terni, 8 March 2010. In force of the Bankruptcy Law Trib. Macerata, 11 November 2008, in Fallimento, 2009, 453, with note by Nardecchia; Trib. Terni, 12 October 2010, held that the opposition pursuant to Article 98 of the Italian Bankruptcy Law was applicable. See, therefore, Nardecchia, La domanda del creditore «supertardivo» (Nota a T. Macerata, 11 novembre 2008, Soc. Equitalia Marche c. Fall. soc. Granduca Argenti), in Fallimento, 2009, 454 et seq.

[80] The statistical data is taken, again, from Aa.Vv., L’accertamento del passivo edited by FERRO-BASTIA-NONNO, cit., 399 et seq.

[81] Before the introduction of the electronic process, in practice, also with a view to containing the costs of the procedure, the late admissions that occurred were acknowledged, together with the first fulfilment that required the trustee to send communications to creditors (generally this took place at the time of the report).

[82] Considering the similar wording of art. 225 with respect to art. 112 of the Italian Bankruptcy Law, the conclusions reached by the elaboration formed on the Italian Bankruptcy Law will also be applicable in this case. Regarding the relationship between late filings and the distribution of assets, cf. Didone, La dichiarazione tardiva di credito nel fallimento, Milan, 1998, 164; Bonfatti, L’accertamento del passivo e dei diritti mobiliari, in Aa.Vv., Le procedure concorsuali. Il fallimento. Trattato directed by  RAGUSA MAGGIORE – COSTA, Turin, 1997, 359; Cavalli, L’accertamento del passivo, in Aa.Vv., Il Fallimento edited by AMBROSINI, CAVALLI and JORIO, in Trattato Cottino, Padua, 2009, 604 et seq.; following the 2006 reform, it was noted that the rule referred to in Article 112 of the Italian Bankruptcy Law, apparently confirmed, was found to be “severely limited”, given that the non-imputability of the delay becomes a condition of admissibility for participation in the competition; thus Fabiani,  note to the Supreme Court, 15 June 2006, no. 13830, in Foro it., 2006, I, 3382; Tiscini, Commentary on art.  112, in Terranova et al. (eds.), La nuova legge fallimentare annotata, Naples, 2006, 244, notes that the rule has remained “substantially unchanged”

[83] The task is emphasized by Ferraro, Commentary on art. 101, in Aa.Vv., La riforma della legge fallimentare, edited by NIGRO-SANDULLI-SANTORO, cit., 1299.

Author

* Leonardo Di Brina is Professor of Business Law, University Luiss Guido Carli.

** Domenico Bonaccorsi di Patti is Assistant Researcher of Business Law, University “Tor Vergata” in Rome.

This paper is the work, for paragraphs 1 and 9 by Leonardo Di Brina, for paragraphs 2 – 8 by Domenico Bonaccorsi di Patti