The non-registration of the special servicer in the register pursuant to art. 106 tub does not determine any invalidity from a civil law perspective

Sottotitolo

by Francesco Cartabia

The Court of Cassation, Civil Section III, with its recent ruling dated March 18, 2024, No. 7243, has taken a stance contrary to recent trends in some lower courts, deeming the exception regarding the nullity of the mandate for debt collection granted to a special servicer not be listed in the register under Art. 106 TUB as ‘artificial and devoid of foundation,’ with consequent invalidity of acts performed based on such mandate (e.g. writ of payment, enforcement acts).

According to the Supreme Court:

  • The special regulations of the banking sector and debt securitisation (Law No. 130 of April 30, 1999, the ‘Securitisation Law’) have no civil law relevance.
  • Consequently, the failure to be listed in the register under Art. 106 TUB of the special servicer, as the entity specifically tasked with debt collection for securitized debts, does not invalidate the mandate granted and acts of debt collection performed. The abstract relevance of this fact could only reflect on the sanctioning, administrative, or criminal level, according to the specific supervision regime under the TUB.

The arguments put forth by the Court of Cassation underlying its stance are as follows:

  • The special sectoral rules on banking and financial activities (e.g. TUB, TUF, Securitisation Law) ‘have no civil law relevance but pertain to the regulation (administrative) of the banking sector (and, more generally, financial activities), whose public law significance is specifically protected by the system of controls and powers (including sanctioning) vested in the supervisory authority (i.e., the Bank of Italy) and also safeguarded by criminal laws.’
  • Consequently, ‘there is no valid reason to automatically transfer onto the contractual level (or even on the debt collection acts performed) the consequences of operators’ deviant conduct, in order to overturn contracts (debt assignments, mandates, etc.) or procedural acts of credit protection, in cognitive or even executive proceedings (writs of payment, attachments, interventions, etc.), supposedly tainted by a “derivative” invalidity.’
  • The Supreme Court thus concludes stating that ‘the failure to register in the register under Art. 106 T.U.B. of the entity specifically tasked with debt collection does not entail any invalidity, although such omission could be significant in a different context of the relationship with the supervisory authority or for any criminal law aspects (Title VIII, Chapter I, of the T.U.B.).’