The debt consolidation loan is aimed at extinguishing all debt positions by concentrating them in a single installment. Often the bank, following the revocation of credit lines or the forfeiture of the term of the loans, proposals or “forces” entrepreneurs in difficulty to take out a loan for the consolidation of debts.
This mortgage is simulated in nature
Since the real will of the credit institution is to acquire a mortgage guarantee for a pre-existing debt possibly deriving from the current account entrusted and therefore to transform an unsecured credit into a mortgage credit.
This mortgage is fraudulent to the law in that it achieves the objective of circumventing a hypothetical per condition creditor in the event of the bankruptcy of the company.
If the granting bank is already a creditor of the person to whom the loan is granted
The sum granted as a loan is paid on current accounts entrusted, the debt is cleared; but after the disbursement of the mortgage, the debtor’s position vis-à-vis the lending bank remains unchanged but the original credit is provided with real and personal guarantees.
The loan for the consolidation of the debts in these cases is NULL, as there is only a formally credited, to settle the debts towards the granting bank.
“SIMULATED” DEBT MORTGAGE CONSOLIDATION: CHARACTERISTICS
1. LACK OF TRADITIO
- – According to the Court of Cassation, a loan contract is a real contract that is perfected with the delivery of the thing (so-called tradition) from the grantor to the borrower who buys the property.
- – the entrepreneur will never have the availability of these sums as the bank pays the mortgage on the current account for the sole purpose of clearing a previous debt exposure (current account balance).
- – the purpose loan is void, and the nullity can be asserted by anyone who has an interest in it
2. CURRENT DEBT EXPOSURE AT THE DATE OF LOAN DELIVERY.
- The analysis of the current account often shows the illegitimate application of usurious interests, anatocism, ultralegality, overdraft fees, and undue expenses.
3. ACQUISITION BY THE BANK OF AN UNLAWFUL CASE OF PRE-ACTION.
- the stipulation of a mortgage loan to transform an unsecured credit (current account entrusted without guarantees) into a mortgage credit is in fraudulent law.
- in bankruptcy, this case integrates the offense of competition with preferential bankruptcy since, the bank’s will to damage other creditors is evident, knowing the entrepreneur’s state of insolvency.
- Creditors having been defrauded by this trick to create the privilege can propose revocatory action