leveraging the innovation introduced by Decree 35/2005 into law 80/2005, concerning the Institute of Preventive Technical Consultancy (ATP), this study - perhaps the first in Sicily - presented , at the Court of Palermo, a series of actions under Article. 696 bis cpc tending to establish the undue objective function by some banks to the detriment of their depositors.
use of such alternative means of resolution dispute was welcomed by some of the major national banks (Unicredit Banca di Roma and Banca Monte dei Paschi di Siena) as well as the President of the Court of Palermo, in October 2006, authorized the opening of No 4 proceedings conciliators.
In other Courts (Syracuse) instead, the President advised against the use of such an institution claiming (now admit it correctly) that in many cases the use al'ATP would be solved in an unnecessary increase of costs to the applicant with further extension times of the normal process of cognition that, in case of failure of conciliation, it would still have to start after the failed ATP experiment with the unknown phase in the use of CTU willing conciliatory.
confess that at that time the reasons given by Dr. Barbara Salvo, President of the Court of Syracuse, left me very disappointed, especially in light of the happy results of three of the four proposed reviews of Palermo, which was concluded with mutual satisfaction of both parties over a little over 150 days, a period of time sometimes not enough - in a normal process of cognition - to conclude the investigation stage.
Our clients had brought home, respectively, € 30234.44, € 147,434.02 and € 111,335.62, net skills paid for our advice, for the intervention of the legal and conciliatory to the work of the CTU. In this regard it should be noted that our CTP were initiated before the entry into force of Law 80/2005 and that in any event, I personally bring previously postponed its own advice by one party, for reasons I will address later.
In any event, while in the Tribunals of Syracuse and Catania proceeded with regular assessments of cognition, at the Court of Palermo, in 2007, presented a dozen requests for conciliation prior art. 696 bis cpc
After about two years the regular, with some exceptions, are all ripe for decisions, which are due between 2010 and 2011. Customers have so far borne the financial burden related to the Consulting Parties, the costs for the introduction of Judgement (Unified Contributions), the fees for lawyers and part of the CTU (where initiators), it should be pointed out that established practice in courts in Sicily - given the biblical times of the processes - to charge the actor, as a precautionary measure, the entire burden of CTU, only to compensate for this expenditure in case of victory. Instead
all ATP promoted the Court of Palermo no longer yielded no effect because:
· Some banks refused to settlement proposal from CTU. In this case the customer had to first pay the fees of the OTC (from 6,000 to € 15,000) awarded by the Court, and then propose a new trial (with the additional outlay of money), hoping that the advice already made when to ATP be accepted as a CTU in establishing the process, hoping in vain in most cases, because the questions asked at the time the request for conciliation, as always, were welcomed by the judge with the words "established by the OTC, as alleged by the plaintiff," formula that gives you total freedom of operation to the Advisor office and the same operating margins are also not reflected in the contradictory that is established between the parties in the proceedings, where the list of questions is formulated as the actions by the parties. We are thus in the uncomfortable position of having to apply for admission of CTU prepared in the ATP, as a means of assessment proceedings, knowing that our request will find difficult to accept. The customer must then submit to the payment of a new CTU, having lost about a year to bring the new lawsuit, with the well-cold comfort she can seek damages for "vexatious litigation" where the new CTU also tended toward the plaintiff's argument .
• In other cases, the findings of CTU were not deemed appropriate by the Banks that, while appreciating the danger of losing, they proposed settlement solutions is not economically acceptable to our customers. We found ourselves in the same situation described above.
• In one case, be held personally not uncommon, while the CTU to achieve the reconciliation, completely subverted our questions, confining them within the residual and developing an expertise on the other hand the results of which clearly fulfilled the intentions of the Bank to reduce the sum to be paid 20% of our claim.
• In other cases, the CTU has appointed understood its role as a conciliator, but merely bland efforts to promote meetings - always on time rejected by the bank - to the judge requesting an extension for more than eight months, only to renounce the mandate when the deposit was prepared expert. In this case, fortunately, the customers are not going be additional charges, but have lost at least another year of time.
• Finally, the process of grouping of Capitalia in UniCredit Group, this bank, which first had successfully concluded the proposed ATP, has changed its internal procedures required for the solution of the so-called "litigation expense" l ' proceedings may be initiated by the customer, by allowing a writ of summons, the legal office of the bank, requesting (According to the above) and set aside a sum equal to the value of the action brought. Thus the activity of each house counsel can be evaluated by your bank on the basis of the relationship between the sum set aside and that actually delivered on every single position. The greater the difference, so it will be appreciated the work of the office. This practice - now fully operational for the UniCredit Group - rule out the possibility of making a ATP, though usually considerably shortens the time of conclusion of litigation.
the light of experiences gained in the three years of operation of the procedure under Art. 696 bis, I personally have to recognize that the forecasts made by President Barbara have since been fully confirmed and complete because:
· The ATP is effective only upon agreement between the parties to fully and unconditionally nominanda adjustment of the findings of CTU, but this presupposes, however, that the parties may fit a suitable CTP and detailed in order to know in detail the various solutions that deliver early use of multiple criteria for the preparation of the calculations.
• In case of failure of ATP to the customer will have paid (handsomely) prepared by the CTU's elaborate, with no guarantee it can be used in subsequent proceedings on the merits; more, considering all the relevant observations posed by the lawyer. Plenteda in his now dated but still current article in the 18/07/2006, I believe that the consultancy report hardly formed in the procedure under Art. 696 can be passively accepted by a party and found this similar, quoad effectum, the report CTU performed during the proceedings of cognition.
it always the case of ATP failure, you will lose valuable time otherwise used for the initiation of a more useful assessment of merit
ALSO
is no need to clear the field from the illusion that, when ATP, "The CTU has the legal powers to hand over the documents required by the bank to make a complete audit report, while this is not possible in the prior appraisal. " The burden of proof is always on the party seeking to assert his reasons: in no case can be assigned to CTU tasks and functions that would lead him to make a real shift in the burden of proof, to the benefit of a party to the detriment of the other.
· Even if successful in the ATP, is not really in dispute that the costs of legal and CTU will be borne by the Bank, on the contrary, it is a reconciliation, in the settlement, each party will normally bear the own costs.
Notwithstanding the above question, my intervention is not intended to discourage those wishing to start an action under Art. 696 bis cpc, but simply to provide - based on experience gained in the use of this instrument - some things to get the best possible yield from the process.
It may, of course, streamline and shorten the settlement of disputes (with obvious economic advantage), but can also become an increasingly dangerous and costly obstacle to the already lengthy definition of the ordinary trial. Dr. Baldassare
Accolla
Consultants & Associates
