The payday loan is a provision that the judge issues – at the request of the holder of a credit (respecting the requirements of certainty, liquidity and collectability) – to order the debtor to fulfill an obligation within the term of 40 days from the notification. With the payday loan the debtor will inform that in the absence of fulfillment, a forced execution will be carried out.
Therefore, through the payday loan the creditor can boast an important arrow for his arc: obtaining the ownership of an immediate protection instrument that allows him to quickly acquire a title in order to be able to act enforceable against the debtor, and therefore avoid him longer times and costs than an ordinary trial, the outcome of which would be uncertain and often verified only after several years.
What are the eligibility requirements of a payday loan
In order to be duly benefited, the payday loan must comply with some fundamental requirements, inherent in both the nature and the subject of the claim, as well as the existence of a written test.
The interpretative basis for obtaining the list of useful requisites for obtaining the payday loan is represented by the art. 633 Code of Civil Procedure, where it is first of all remembered that the payday loan procedure can be used only to protect one’s credit rights, whether they relate to an object such as money or fungible things, and that they meet the liquidity requirements.
Not only: in order for the judge to actually deem the claim to be founded , and thus issue the payday loan, the law provides that whoever requests the decree must give a written proof of his credit. Numerous jurisprudential judgments have referred to the fact that the written test can be represented by any document that is “worthy of faith” in terms of authenticity, coming from the debtor or from a third party that has intrinsic legality, even if it cannot cover the canons of effectiveness absolute proof.
How to request the payday loan
The payday loan is required by appeal , containing – in addition to the indication of the parties – also the subject, the reasons that induce the creditor to make the request, the conclusions, the evidence that is produced, the declaration of residence or the election of the domicile of the claiming creditor. Deposited in the registry, the appeal must contain all the documentary evidence that is cited in it, and that serve to prove the existence of the credit.
Once received and examined by the judge, he can choose to suspend the request, inviting the creditor to produce new documentation to supplement the one already presented. If, on the other hand, the judge does not consider the appeal to be adequate, he may reject it with a justified decree.
On the other hand, if the judge verifies the existence of all the conditions provided for by the law, he will accept the request, thus issuing the payday loan and ordering the debtor to fulfill the obligation in the terms that will be established in the document.
How the payday loan is notified
Once the aforementioned obstacle has been overcome, we also point out that the payday loan must be notified together with the debtor’s appeal, by the appellant. Notification must be made within 60 days of issue, on penalty of ineffectiveness.
How can the payday loan be opposed?
Naturally, the debtor is not a subject that must necessarily “suffer” the payday loan without the possibility of responding adequately. The debtor is in fact given the faculty to propose opposition to the decree through a specific summons, before the judicial office to which the judge who issued the decree belongs.
In order for the opposition to the payday loan to be effective and valid, it must take place within 40 days from the notification of the same.
Once the opposition has been formalized, the second phase of the payday loan procedure will start, which will be characterized by the presence of a judgment that will be held according to the norms of the ordinary process, before the court seised.
To this end, it is worth remembering – in conclusion of this brief analysis of the payday loan – that the same is issued by the judge in the absence of contradiction between the parties. It is in fact a purely documental provision, and represents the final and conclusive phase of a payday loan process that is rigidly governed by the code of civil procedure.
In the event of opposition on the initiative of the injured debtor, as we have just briefly mentioned, an ordinary first degree procedure “with full knowledge” will be opened , in which we will proceed to the verification of the claim made, during an adversarial dispute with the debtor against whom the decree was issued.
In the event that you wish to obtain more information on these proceedings, or if you wish to request the issuance of a payday loan, or if you have to “defend yourself” from this act, we naturally recommend that you seek legal advice from a lawyer or an expert who can support you adequately along the formal process that will lead you to the satisfaction of your credit claims.